Berg v. Berg
137 A.3d 1035
| Md. Ct. Spec. App. | 2016Background
- Steven Berg and Susan Berg litigated a 2005 divorce; after a merits trial the circuit court entered a $450,000 monetary award for Susan, reduced to judgment.
- Over time Berg made partial and irregular payments; Susan filed garnishment actions (2012 and 2014) attaching interest worksheets allocating payments differently.
- Berg objected to Susan’s 2014 worksheet allocation (she applied payments to interest first); the court held an evidentiary hearing on Oct. 1, 2014 to determine how payments should be applied.
- On Dec. 17, 2014 the circuit court ordered payments prior to Aug. 7, 2012 applied to principal, and payments after that date applied to interest first.
- Susan’s motion to alter/amend was denied; she sought in banc review before three Montgomery County circuit judges, who reversed and ordered payments credited first to interest then principal.
- Berg appealed to the Court of Special Appeals, but limited his challenge to jurisdiction: whether an in banc appeal under Md. Const. art. IV, § 22 lies where the challenged decision arose from a post-trial proceeding rather than the merits trial itself.
Issues
| Issue | Plaintiff's Argument (Berg) | Defendant's Argument (Susan) | Held |
|---|---|---|---|
| Whether Art. IV, § 22 permits in banc review of a judge’s post‑trial ruling | Section 22’s phrase “where any trial is conducted” means only rulings made at the merits trial; post‑trial rulings are not eligible | Section 22 allows in banc review of any "decision or determination" by fewer than three judges, including post‑trial decisions | In banc review may extend to post‑trial decisions where issues of fact were decided; cases historically allowed such review |
| Proper meaning of the word “trial” in § 22 | “Trial” should be read narrowly as the merits trial producing the judgment | “Trial” adopts common‑law meaning: the step in an action where issues or questions of fact are decided (including evidentiary hearings) | “Trial” means that step in which factual issues are decided; the Oct. 1, 2014 hearing qualified as a trial for § 22 purposes |
| Whether deletion of archaic phrase in 2006 narrowed § 22’s scope | (Argued initially) 2006 deletion narrowed in banc review scope | 2006 amendments were non‑substantive; deletion was to remove archaic language | Deletion of “Term is held, or” was non‑substantive and did not narrow the right to in banc review |
| Jurisdictional consequence for in banc order at issue | The in banc panel lacked jurisdiction to decide allocation of payments; order should be stricken | The in banc panel had jurisdiction and its order was valid | The in banc panel had jurisdiction; judgment affirmed |
Key Cases Cited
- Costigin v. Bond, 65 Md. 122 (1886) (discusses Article IV, § 22 as creating in banc review and cautions against extending it beyond constitutional terms)
- Bienkowski v. Brooks, 386 Md. 516 (2005) (explains purposes of § 22 and addresses limits of appellate review after in banc decisions)
- Washabaugh v. Washabaugh, 285 Md. 393 (1979) (historical discussion of in banc appeals and early cases)
- Langston v. Langston, 366 Md. 490 (2001) (in banc review of issues arising from post‑trial family law proceedings)
- Dabrowski v. Dondalski, 320 Md. 392 (1990) (in banc and appellate treatment of post‑trial motions and finality questions)
- Smith v. State, 115 Md. App. 614 (1997) (treats a probation revocation hearing as a “trial” for statutory purposes)
- Miller v. Tobin, 18 F. 609 (D. Or. 1883) (defines “trial” as the step where issues or questions of fact are decided)
- Remson v. Krausen, 206 Md. App. 53 (2012) (construes § 22 amendments and treats 2006 changes as non‑substantive)