Preview:

HEADNOTE Le'Etta Johnson Barnes v. Patrick Ivan Barnes, No. 106, September Term, 2007 CONSENT ORDER; APPEALABILITY; BINDING EFFECT OF ORAL AGREEMENT ENTERED IN OPEN COURT; DISMISSAL OF APPEAL The circuit court did not err in entering an order that conformed with an oral agreement that the parties had entered on the record, even though the appellant refused to sign the proposed o rder. The o rder was, in effect, a co nsent orde r, although n ot titled as such; it tra cked p recisely the terms o f the pa rties' ora l agreem ent. Ordinarily, no appeal lies from a consent order, unless the consent was coerced, the judgment exceeded the scope of consent, or it was not within the jurisdic tion of the c ourt. When a consent order is challenged on the ground that there was no actual consent, but the record demonstrates that the orde r is consistent with the pa rties' agreem ent, the appe llate court will dism iss the appe al.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 106 SEPTEMBE R TERM, 2007

Le'ETTA JOHNSON BARNES v. PATRICK IVAN BARNES

Hollander, Eyler, De borah S ., Thiem e, Raym ond G ., Jr., (retired, specially assigned), JJ.

Opinion by Hollander, J.

Filed: September 9, 2008

This case arises from divorce proceedings between Le'Etta Johnson Barnes, appellant, and Patrick Ivan Barnes, appellee, litigated in the Cir cuit C ourt for C harles Coun ty. Appellant challenges an Order issued by the circuit court on February 15, 2007, which incorporated the terms of a settlement agreeme nt that the partie s entered on the record a t a hearing on August 1, 2006. Thereafter, appellee's counsel prepared the Order and submitted it to the court, w ithout appe llant's signature , because a ppellant refu sed to sign it. Appellan t presents thre e issues for o ur review , which w e quote: I. Whether the Circuit C ourt comm itted clear error by issuing a consent order to dispose o f contested marital prop erty issues without requiring the Appellee to file a finan cial statemen t and witho ut considering evidence that the terms of the order did not designate the specific retirement benefits to be distributed. Whether the Circuit Court abused its discretion by failing to consider evidence that the parties had not reached an agreement on terms of the proposed settlement agreement represented by the consent order during the settlement hearing, and evidence that the Appellant had not consented to the terms as intended by the Appellee. Whether the Consent Order issued by the Circuit Court should be overturned as null and vo id because it is unenforceable as a Qualified Dome stic Relatio ns Ord er, the settlement h earing upo n which it is based did not result in a meeting of the minds between the parties, and the settlement negotiations were not entered into in good faith by the Appellee.

II.

III.

For the reas ons that follo w, we sh all dismiss the a ppeal. I. FACTUAL AND PROCEDURAL SUMMARY The parties were married on August 15, 1992, and separated in February of 2005. No children were born to their union. According to the briefs, appellee is employed by Verizon and appellant is a "sole proprietor nail technician."

Appellee filed a Complaint for Absolute Divorce on April 17, 2006, based on a oneyear separation. He alleged that the parties had resolved issues pertaining to the division of marital property and spousal support, and that no property or support issues remained for the court to resolve . In her Answer, appellant denied that the separation was intended to end the marriage. She also denied that the parties had resolved all issues pertaining to spousal support and the division of m arita l property. Appella nt su bseq uently filed a Counterclaim f or Abso lute Divorce on grounds of adultery and c onstructive d esertion, in w hich she d etailed the pro perty issues that she contended were unresolved. In her Counterclaim, which appellant p ersonally signed in accordance with Maryland Rule 9-202(a), appellant averred: 16. During th e course o f their 13-year marriage, [appellant] has been self-employed and has relied on [appellee] for financial support and maintenance, including pension and health insurance. During their discussions of financial planning, [appellee] discouraged [appellant] from opening a retirement account or IRA stating continuously that the two would b e able to live off his pension from Verizon. [Appellant] relied to her detriment on [appellee's] representation that he would take care of her and did not open a retirement ac count. 17. In March 2006, during a telephone conversation [appellee] informed [appellan t] that they could s tay married so s he wou ld be able to continue her medical insurance coverage. Accordingly, appellant requested a judgment of absolute divorce as well as other relief, including spousal support of $850 per month, an order that appellee continue appellant's health insurance, and half of the funds from two real estate transactions involving the parties. Of import here, appellant also sought entitlement to "her share of [appellee's] 2

retirement account with Verizon and any and all other retirement accounts, IRA, 401-K, pension plans, stock or profit sharing plans held or obtained during the course of the marriage. . . ." Along with her Counterclaim, appellant filed a long-form financial statement in the fo rm pres cribed b y Md. R ule 9-2 03(a). Appellee filed an Answer to th e Coun terclaim on J uly 11, 2006, re questing its dismissal. But, appe llee did not file a financial statement. On the same date, appellant filed an Amended Complaint for Absolute Divorce, seeking a division of marital assets. In relevant part, the Amended Complaint requested: C. That the Court o rder a division in kind or, if a ppropriate, a sale of all real and perso nal property jointly owned by the parties, including the Defendant's business, Nails N Flight, and if sale be dec reed, distribute the p roce eds e quitably. That the Court, pursuant to Md. Code, Family Law , Section 8-205(a) transfer to the Plaintiff his marital sha re of any and all of the asse ts from the D efendan t's business, N ails N Fligh t.

D.

On August 1, 2006, the parties and their lawyers attended a status co nference before a dome stic relatio ns mas ter. Prior to the co nference , the parties and their attorneys engaged in settlement negotiation s in the cour thouse, w hich are no t a part of the r ecord. In the ir briefs, the parties present differing accounts of that meeting.1

It is not our role to resolve any factu al dispu tes. See, e.g., Hartley v. S tate , 238 Md. 165, 168 (1965) (appellate court "cannot invade the province of the nisi prius courts by making an original factua l finding "). See also M ontgom ery Co. v. M d. Soft Drink Ass'n , 281 Md. 116, 1 22 (1977) ("W e cannot, o f course, m ake a factu al finding."); Phoenix Services L.P. v. Johns Hopkins Hospital, 167 M d. App. 32 7, 406-40 7 ("As an appellate co urt, it is (contin ued...) 3

1

In any event, it is undisputed that, after their negotiations, the parties and counsel came be fore the do mestic relation s master. Th e followin g colloquy is rele vant: [THE MA STER ]: Now , do I understand that the parties have an agreement that you want to put onto the record? [APPEL LEE'S C OUN SEL]: That's correc t, Your Hono r. [THE MAS TER]: O kay. Which one of you w ants to state it? [APPELLEE'S CO UNSEL]: I'll go forward. [TH E M AST ER] : Ok ay.

(...continued) not our pro vince to make . . .factua l determ inations ."), cert. denied, 393 Md. 244 (2006). Neve rtheless , we sh all summ arize the parties' r espectiv e acco unts of what tr anspire d. Appellant asserts that the p arties "discus sed the terms of the settlement for approxim ately five (5) min utes in the hallway of the courtho use, each se parately, with the ir respective attorneys." Ac cording to a ppellant, "[n]either party sat down and discussed the terms of the settlement with each other; neither party reviewed a written document containing proposed settlement terms." Appellant claims that, during the settlement negotiations, her attorney requested financial information from appellee's attorney. She further asserts that she requested financial information from appellee on three occasions before the August 1, 2006 hearing, ("O n three sepa rate occasions and during the settlement discussions with the Master in this proceeding, the Appellant requested financial information from the Defendant prior to the settlement hearing." (Emphasis added.)). But, the documents cited by appellant make clear that the three occasions were (1) verbally, during the negotiations on the day of the hearing, i.e., August 1, 2006; (2) a letter dated September 29, 2006; and (3) a letter dated Dece mber 7 , 2006. Appellee contends that, after "at lea st fifteen (15 ) minutes of separate discussions w ith their respective a ttorneys, and without further demand for financial documents or information from each othe r, the parties ag reed to a fin al and com plete settlement for distribution of their marital property, and for health insurance coverage for [appellant]." Appellee adds: "It was immediately decided that the agreement should be placed on the record in open court." 4

1

[APPELLEE'S COUNSE L]: [I]t is my understanding that the parties have agreed that they have resolved all of their marital property issues as follows: That Mr. Barnes will give M rs. Barnes th ree thousan d dollars w ithin thirty d ays of toda y. That Mrs. Barnes will receive the marital share of Mr. Barnes's pension with Verizon if, as, and when he receives it pursuant to the Bangs Formula. And, Mr. Barnes will continue Mrs. Barnes on his health insurance through Verizon through the marriage. And. . .will cooperate with Mrs. Barnes if Verizon is inclined to allow her to c ontinue to sta y on the health insurance. . .with the under standing th at Mrs. B arnes will b e respons ible for payment of the health insurance following divorce. All other pro perty has b een divided to the marita l [sic] satisfaction of the parties. And, each par ty will keep all other property which is in their possession with no right of claim to any property. . .not otherwise mentioned. It is also m y unders tanding that M r. Barnes will f ile what will be a Second Amended Complaint for Absolute Divorce based on a one year mutual and voluntary separation. And, we will then move forw ard filing. . .once that it is answered [sic], filing a motion to refer the case to an examiner to take unconte sted testim ony. [THE MA STE R]: O kay. [Counsel for appellant], did she leave a nything out? [APPE LLAN T'S CO UNS EL]: No. [THE MAS TER]: Is th at your unders tanding of the agreem ent? [APPEL LANT 'S COUN SEL]: Yes, Y our H onor. That's my understanding of the agreement. (Emp hasis ad ded.) The domestic relations master then asked the attorneys to voir dire their clients. The

5

following colloquy is pertin ent: [APPEL LANT 'S ATTORN EY]: Would you state your name and address for the record, please? [APPEL LANT ]: Leetta [ sic] Joh nson B arnes. M y address is 209 King James Road, Upper Marlboro, Maryland. [APPELLAN T'S ATTORN EY]: And Ms. Barnes, how old are you? [APPELLAN T]: Forty-three. [APPEL LANT 'S ATTO RNE Y]: Ms . Barnes, are you able to read and write? [APPELL ANT]: Yes. [APPEL LANT 'S ATTOR NEY]: Are you under the influence of drugs, alcohol or any other debilitating substances at this time? [APPELLAN T]: No. [APPEL LANT 'S ATTO RNEY ]: Ms. Barnes, you've hea rd the agreement that has been explained on the reco rd today. Do you understan d the agree ment? [APPE LLAN T]: Yes. [APPE LLAN T'S AT TOR NEY ]: Are you in agreem ent with it? [APPE LLAN T]: Yes. [APPELL ANT'S A TTORN EY]: Have you been satisfied with my services? [APP ELL ANT ]: Yes. (E mpha sis adde d.)

The ma ster made o ne observ ation conc erning the a greemen t: [Y]ou may be well aware of this, but my understanding is that if there is an order for Mr. Barnes to keep insurance on Ms. Barnes after a divorce. . .I guess what I'm saying is do you want to give eff ect to that provision? I think it does need to be part of the order. But, obviously it will be so, I just wanted to make 6

sure of tha t. There was no objection to the master's suggestion. Appellant's counsel then advised the master that "[t]here is one other matter." She explained: "Mrs. Barnes would like to have stated in the ord er that sh e has th e right to use her maide n nam e." The master gave the parties until October 6, 2006, to prepare and sign a proposed order incorporating the terms of the agreement. Appellee's attorney agreed to draft the proposed order. The master then concluded the hearing, stating: "Then I guess that's it. I think. . .you have shown the ability to cooperate and you have saved yourself a lot of time and effort and not to mention money. So, I hope everything goes well accord ing to p lan." The merits hearing of October 6, 2006, was rescheduled to November 17, 2006, as a result of a medical emergency on the part of appellee's attorney. It was then rescheduled to January 5, 2007, du e to matern ity leave for app ellant's attorne y, and was ap parently postponed again because of a conflict on the part of appellee's attorney. To our knowledge, it has not yet been held. In the meantime, appellant's attorney refused to sign the proposed order drafted by appellee's attorney. Consequently, on January 19, 2007, appellee file d a "Mo tion to Enter," in which he asked the court to issue the proposed order without appellant's signature. The motion alleged that counsel for appellee had drafted a proposed order and sent it to counsel for appellant, bu t appellant's c ounsel rejec ted it. Appellee further explained that, because appellant's counsel refused to sign the proposed order, appellee obtained a transcript of the

7

hearing held on August 1, 2006, and revised the proposed order to conform to the transcrip t, but counsel fo r appellant still refused to sign it. According to app ellee's motion, appellant's counsel contended that the proposed order contained provisions that were not agreed to at the hearing, and appe llant did not have "`full disclosure as to [appellee's] retirement plans (emphasis added) prior to entering into full disclosure.'" Further, the motion stated: That [appellant's] present position is no more than buyer's remorse. That [appellee] a nd [appe llant] entered into good faith negotiations and a good fa ith agreem ent. That the Order provided with this Motion accurately reflects the agreement placed on the record pursuant to the official transcript of proceedings of August 1st 2006. Indeed, the text of the proposed order submitted by appellee with the motion tracked almost verbatim the parties' agreement at the hearing on August 1, 2006. The proposed order provided: That by agreement of the par ties, a s stat ed on the reco rd on Tue sday, August 1st 2006, and as acknowledged on the record on August 1st 2006 that this Agreement resolves all marital property issues, it is thereupon this ___ day of _________, 2007, by the Circuit Court for Charles County, Maryland, here by, ORDERED, that the Plaintiff pay to the Defendant Three Thousand Dollars ($3,000.00 ) within thirty (30) d ays of Aug ust 1st 2006 ; and it is further, ORDERED, that the Defendant receive her marital share of the Plaintiff's pension with Verizon, if, as, and when received by the Plaintiff, pursuant to the BA NGS fo rmula; and it is further, ORDERED, that the Plaintif f continue the Defe ndant on h is health 8

insurance through V erizon until th e date of ab solute divorce and the Plaintiff shall cooperate with the Defendant if Verizon is inclined to allow the Defendant to continue to receive health insurance through Verizon. The Defendant shall be solely responsible for payment of her health insurance following the date of absolute divorce; and it is further, ORDERED, that all other property has been divided to the satisfaction of the parties and each shall keep all other property which is in their possession and which is not otherwise mentioned herein, with no right of claim by the other. The transcript of the hearing on August 1, 2006, and a letter dated July 20, 2006, from appellant's counsel to appellee's counsel, were attached as exh ibits to the motion. In the letter, appellant's attorney rejected a settlement offer apparently advanced by counsel for appellee in a prior letter, and proposed alternative terms. In the course of the letter, appellant's counsel stated: "We are aware that the court will likely order that Mrs. Barnes receive her marital share of Mr. Barnes [sic] pensions, including stock options and other annuities, from his employment at Verizon." On January 23, 200 7, appellant's attorney filed a "Response to Motion to Enter and Motion Requesting Financial Information," along with a sworn affidavit executed by appellant. Appellant averred: During the [August 1, 2006] hearing, the attorney for [appellee] read a statement into the record. It is my understanding that the statement was to express our intention to settle the prop erty issues in the. . .divorce proceeding. I did not understand or intend that statement to represent a final disposition of all issues. I believed and understood that I would get an opportun ity to review and sign a written settlement agreement between myself and [appellee] before the case concluded.

9

On or about August 13, 2006, my attorney informed me that [appellant's] attorney, Phyllis Hotchkiss, had drafted a document to be signed by the court stating that I wa s to pay for m y own hea lth insurance and that I would not receive $3000.00 from the real estate in Baltimore until she signed the document. She also told me that the document stated that I would receive my marital name. I advised my attorney at this time that I did not understand at the hearing that I was to pay for my own health insurance because I thought the judge (master) said that [appellee] w as to continu e to pay for m y health insurance. I also told my attorney that I did not know what I was receiving from [appellee's] pension because we had not seen any paperwork showing [appellee's] pension and 401K plans. At this time, I authorized my attorney to request the pension a nd health insurance information from Verizon. I also asked her to have the order gr ant the nam e change and to hav e the specif ic terms of our agreement put into a separate document so I could have some privacy when I went to businesses to change my name. On or about September 10, 2006, my attorney showed me a document written by Ms. Hotchkiss. . .that was supposed to represent the agreement between us regarding the property issues. The document contained waivers of all other pension, 401K, and retirement benefits that [appellee] had accumulated during the course of our marriage, except his pension from Verizon. I did not agree to this waiver during the hearing with Master Woodside on August 1. The docume nt I read on or about September 10 also stated that after the divorce, [appellee] would coopera te with me and Ve rizon so tha t I would continue receiving h ealth insuran ce from V erizon, and that I wou ld pay all costs for the health insurance. I did not agr ee to this durin g the hearin g with Master Woodside on August 1 because I heard the statement during that hearing that he was to continue health insurance coverage for me after the divorce. The September 10 document also stated that I was to receive $3,000.00 thirty days from August 1, but I had not received any money and my lawyer told me that Ms. Hotchkiss would not release the check until we signed the agreeme nt. I informed my attorney that I could not sign the document and go 10

forward because I did not agr ee to what the document stated, specifically that I was to pay for my own health insurance a nd that I w aived my righ ts to [appellee's ] 401K a nd other p ortions of h is retirement. On or about September 28, 2006, my attorney called me to say that she could not get any information from Verizon about the health insurance and the pension benefits beca use she ne eded [ap pellee's] perm ission to discu ss his benefits. I reviewed a letter she had written to [appellee's] lawyer asking for financial informatio n and info rming her that I objected to the way the draft agreement waived my rights and held me responsible for paying for my own health insurance. On or abou t Dece mber 5 , 2006, my attorney told me that [appellee's] attorney had not sent any financial information regarding [appellee's] pension or health insurance and they were going to ask the court to proceed without our agreeme nt. On or about December 18, 2006, [appellee] called me and asked why I was holding up the agreement. I told him tha t my attorney could not get financial informatio n regarding his pension plans and health insurance from Verizon or his attorne y, and that I did not agree to pay for my ow n health insurance. He informed me that Verizon would not let me continue on the plan after the divorce anyway so that didn't make any difference. During the hearing on August 1, I did not understand that [appellee's] attorney said I was to pay for my own health insurance or that I would be waiving rights, since there was discussion that I would be returning to court with a witness to make a final d ecision about th e divor ce. I also believed that I would have something written to agree to before the property issues w ere final and not that what I heard and what was said in court would count for a written agre ement. In her Response, appellant referred to the allegations of her affidavit, and argued that the settlement was discussed "for less than fifteen (15) minutes in the hallway of the. . .courthouse prior to entering the hearing room. After entering the hearing room, [appellan t] only heard [appellee's] lawyer speak the terms of the proposed settlement into the

11

record and did not get an opportunity to review any writing. . . ." Moreover, she contended that she had never received "a financial or benefits statement revealing [appellee's] assets, which is required in this case by Md. R ule 9-203 (e) and has been requ ested on thr ee separate occasio ns by [ap pellant' s] attorn ey. . . ." Appellant insisted that "she entered into good faith negotiations but [appellee] has not acted in good faith by failing to honor the proposed agreement he seeks to enforce." As evidence of appellee's bad faith, appellant cited appellee's failure to pay her the $3,0 00 until such time as appellant signed the proposed order; his failure to comply with court rules and her requests reg arding fina ncial inform ation; and h is knowle dge that V erizon w ould not honor the settlemen t provision to maintain h er health insu rance. She also denie d that appellee's proposed order accurately reflected the agreement placed on the record, because it "omits [appe llee's] re quest f or restor ation of her ma iden na me." 2 Further, appellant arg ued that, pu rsuant to Md. R ule 9-203(e), appellee should have filed a financial statement with his Answer to her Counterclaim or with his Amended Comp laint. In addition, she complained that appellee had repeatedly refused, "during the course of settlement negotiations," to provide requested financial inform ation. Further, she contended that she "has not been able to and cannot make an informed decision regarding

Appellant's motion did not address the discrepancy between this contention and the averment of her affidavit that she instructed her attorney to insist that the order for the name change be "put into a separate docume nt so I could have som e privacy wh en I wen t to businesses to change my name." 12

2

the proposed settlement in this case without full disclosure of [appellee's] financial inform ation." Appellant added that, in the event the case proceeded to trial or a disposition of marital p roperty by the cou rt, "the Cou rt will not be a ble to make a determination of the property amount of a grant [sic] to either party without a financial statement from [appellee]." Acc ordingly, appellant asked the court to dismiss appellee's Motion to Enter; order appellee to file a financial statement pursuant to Md. Rule 9-203(e), or, in the alternative, to dismiss appellee's p leadings fo r failure to co mply with the Rule; and schedule a "settlement conference for parties to present and review the wri tten term s of pro posed settleme nts. . . ." Neither appellant nor ap pellee requested a hearing on the Motion to Enter, howeve r. On February 16, 2007 , without a hearing on the competing motions, the court issued an Order consisting of the terms of the proposed order submitted by appellee. II. DISCUSSION As noted, appellant filed this appeal before the case was concluded; the merits hearing had not yet been held when the appeal was noted. Neither party has raised the is sue of appealability, however. Nevertheless, as Maryland appellate courts have often observed, "[w]hether a matter is appealable is a jurisdictional matter and may be raised by an appellate court even if not noted by the parties." Gruber v. Gruber, 369 M d. 540, 5 46 (20 02). See also, e.g., In re Fran klin P., 366 M d. 306, 326 (2001); Office of State Prosecutor v. Judicial Watch, Inc., 356 Md. 118, 125 (199 9); Tharp v. D isabled Ve terans De pt. , 121 Md. App. 548,

13

557 (1998).

We perceive two potential impediments to appealability; one is easily

surmounted, but the other significantly constrains our review. We shall first address the issue of finality. Ordinarily, an appeal may be taken only from a final judgment. Md. Code (2006, 2007 Supp.),

Download Barnes v. Barnes.pdf

Maryland Law