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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 117 September Term, 1996

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RANDALL CAMPBELL JENKINS

v.

NELLIE MADOLYN JENKINS ________________________________

Harrell, Eyler, Alpert, Paul E. (retired, specially assigned), JJ. ________________________________ Opinion by Harrell, J. Dissenting Opinion by Alpert, J. ________________________________ Filed: December 2, 1996

This appeal stems from an action brought in the Circuit Court for Anne Arundel County (Cawood, J.) seeking a declaratory

judgment.

The parties are Randall Campbell Jenkins (Mr. Jenkins or

appellant) and Nellie Madeline Jenkins (Mrs. Jenkins or appellee). Mr. Jenkins sought to have the trial court determine the percentage of Mrs. Jenkins's entitlement to his federal pension pursuant to a now disputed stipulation and agreement reached by the parties in their divorce proceedings. The judge was persuaded that Mrs. Mr. Jenkins, in his effort to We, See

Jenkins's position was correct.

appeal that judgment, has failed to note properly this appeal. therefore, dismiss1 his appeal pursuant to Md. Rule 8-602(a).

also Biro v. Schombert, 285 Md. 290, 402 A.2d 71 (1979) (noting this Court's authority to dismiss nostra sponte when appellate jurisdiction is lacking). The relevant portions of Md. Rule 8-602(a)(3) permit the Court, on its own initiative, to "dismiss an appeal [if] the notice of appeal was not filed with the lower court within the time prescribed by [Md.] Rule 8-202 . . . ." Md. Rule 8-202 dictates

that, absent a post-judgment motion, "the notice of appeal shall be filed within 30 days after the entry of the judgment or order from

Both parties briefed only the substantive merits of the issues sought by them to be decided on appeal. Prior to the day of oral argument, our clerk's office, at the panel's request, informed the parties that we wished them to address the timeliness of the notice of appeal. Both parties accepted that invitation.

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which the appeal is taken."

(Emphasis added).

Md. Rule 8-202

clearly contemplates that the notice of appeal may be filed only after the entry of judgment. ISSUES As noted supra, the issues decided by this Court were not initiated by either party on appeal2. only the following questions: I. Did the filing of Mr. Jenkins's notice of appeal predate the entry of final judgment, i.e., was the appeal prematurely taken? II. If Mr. Jenkins's notice of appeal was premature, is his appeal saved by the provisions of Md. Rule 8-602(d)? III. If Mr. Jenkins's notice of appeal was premature, is his appeal saved by the provisions of Md. Rule 8-602(e)(1)(D)? FACTS After a 13 October 1995 trial on the merits, Judge Cawood left the bench without issuing an opinion, ruling, or judgment. The Instead, we shall address

transcript of the judge's comments, at the conclusion of the parties' closing arguments, clearly indicates that neither a

judgment nor an opinion was rendered in open court. stated:

The judge

Appellant sought to have this Court decide whether the trial court erred in holding that the stipulation between the parties entitled the appellee to one-half of the marital portion of appellant's entire pension. Additionally, appellant sought review of the trial judge's decision to allow an interpretive letter written by appellant's attorney into evidence. 2

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I've been going through this language [of the agreement] about eight times while some of this testimony has been going on, and I'm going to go through it a few more times to determine exactly what [the parties] meant because as I said its not changing anything. It's simply the [c]ourt determining what they meant. . . . So we'll take it under advisement and try to figure out what I think based on all of the evidence I've heard . . . and then we'll have an opinion on that and declare what it is . . . which formula to apply here, so that's what we'll do. (Emphasis added). On 24 October 1995, the trial judge issued a written opinion, copies of which were apparently sent to counsel. The final

paragraph of his opinion stated that "[c]ounsel shall prepare an appropriate declaratory judgment and, if necessary, an order in the nature of a QDRO3." October 1995 with The opinion was entered on the docket on 27 notice that "an appropriate declaratory

judgment," prepared by counsel, would follow.

On 8 November 1995,

Mr. Jenkins filed his "Order for Appeal" that notified the clerk of his intention to ". . . prosecute an appeal of the Opinion rendered

QDRO's or Qualified Domestic Relations Orders are orders of a domestic relations court that come under an exception to the spendthrift provisions of ERISA (Employee Retirement Income Security Act, 29 U.S.C.

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