Lynda J.R. BOND v. Christopher A. BOND.
2011 ME 105
Supreme Judicial Court of Maine.
Argued: May 10, 2011. Decided: Nov. 1, 2011.
30 A.3d 816
Elizabeth J. Scheffee, Esq., (orally), and Margaret C. Lavoie, Esq., Givertz, Scheffee & Lavoie, Portland, for appellee Lynda J.R. Bond.
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.
Majority: SAUFLEY, C.J., and LEVY, SILVER, MEAD, and GORMAN, JJ.
Dissent: ALEXANDER, and JABAR, JJ.
MEAD, J.
[¶1] Christopher A. Bond appeals from an order entered by the District Court (Portland, Dobson, J.) granting Lynda J.R. Bond’s motion to have two post-judgment motions for relief heard by the same referee whose report formed the basis of the parties’ divorce judgment. Christopher contends that (1) the court’s order is immediately appealable; (2) although he had agreed to have a referee hear the divorce case, the court erred in appointing a referee to hear the post-judgment motions over his objection pursuant to
I. BACKGROUND
[¶2] Lynda and Christopher Bond were married in October 1981; Lynda filed а complaint for divorce in January 2008. By joint motion, the parties asked the District Court to appoint a referee to hear the divorce case pursuant to
[¶3] The case was presented to the referee in February 2010. During the
[¶4] Twenty-two days after the divorce judgment was entered, Lynda filed two motions for post-judgment relief, one pursuant to
II. DISCUSSION
[¶5] Before reaching the merits of the parties’ arguments, we must first decide whether this interlocutory appeal should be dismissed pursuant to the final judgment rule. Absent an exception, “the final judgment rule prevents a party from appealing a trial court’s decision on a motion before a final judgment has been rendered.” Fiber Materials, Inc. v. Subilia, 2009 ME 71, ¶ 12, 974 A.2d 918. Although both parties urge us to reach the merits here, we will “consider sua sponte whether a matter is properly before us on appeal from a final judgment.” Bank of N.Y. v. Richardson, 2011 ME 38, ¶ 7, 15 A.3d 756. “A judgment is final only if it disposes of all the pending claims in the action, leaving no questions for the future consideration of the court.” Id. (quotation marks omitted).
[¶6] Here, although the terms of the divorce judgment became final when the judgment was signed, see Estate of Banks v. Banks, 2009 ME 34, ¶ 9, 968 A.2d 525;
A. Death Knell Exception
[¶8] In Fiber Materials, Inc., we said:
The death knell exception applies if substantial rights of a party will be irreparably lost if review is delayed until final judgment. A right is irreparably lost if the appellant would not have an effective remedy if the interlocutory determination were to be vacated after a final disposition of the entire litigation. Put differently, where an interlocutory order has the practical effect of permanently foreclosing relief on a claim, that order is appealаble. Cost or delay alone is insufficient to establish the irreparable loss of a right.
2009 ME 71, ¶ 14, 974 A.2d 918 (citations omitted) (quotation marks omitted).
[¶9] Christopher asserts that absent an immediate appeal he will irreparably lose “[t]he right to have the District Court, and not a referee, determine the facts de novo,” and that this right, “once taken away cannot be regained.” His assertion does not withstand scrutiny.
[¶10] If this appeal is dismissed, the post-judgment motions will proceed to the referee for hearing and decision. Whatever that decision is, it is subject to the parties’ objections and review by the District Court, which may adopt, modify, or reject the decision, with or without receiving further evidence.5
B. Collateral Order Exception
[¶11] The collateral order exception is closely related to the death knell exception. See Alexander, Maine Appellate Practice § 304(b) at 203. It applies “when thе appellant can establish that (1) the decision is a final determination of a claim separable from the gravamen of the litigation; (2) it presents a major unsettled
C. Judicial Economy Exception
[¶12] The judicial economy exception “is available in thosе rare cases in which appellate review of a non-final order can establish a final, or practically final, disposition of the entire litigation. It applies only when a decision on the appeal ... regardless of what it is, would effectively dispose of the entire case.” Id. ¶ 26 (quotation marks omitted).
[¶13] Given the history of this divorce litigation, it is possible, and perhaps likely, that the party that does not prevail on the post-judgment motions will appeal from the District Court’s final judgment on the motions, regardless of whether the initial fact-finder is the referee or the court. Neither party has represented that a decision on the discrete procedural issue presented to us now will finally resolve the disputed substantive economic issue. Therefore, a decision on this interlocutory appeal, “regardless of what it is,” will not “effectively dispose of the entire case.” Id. For that reason, the judicial economy exception is not applicable.
D. Conclusion
[¶14] Although the parties have succinctly presented an intriguing procedural question to the Court, we cannot reach it at this juncture without doing violence to our well-established jurisprudence. Regardless of how discrete and intriguing an issue may be, unless it falls within an established exception to the final judgment rule, our scrutiny must await a final judgment where it, and all other preserved issues, may be addressed together. For that reason, we must dismiss the appeal as interlocutory.
The entry is:
Appeal dismissed.
ALEXANDER, J., with whom JABAR, J., joins, dissenting.
[¶15] Because I would reach the merits of this appeal and vacаte the order of reference, I respectfully dissent.
[¶16] One day after the appeal period expired and the divorce judgment and its division of $3,274,835.80 in marital property had become final, Lynda Bond filed her two post-judgment motions. The motions asserted that Christopher Bond’s failure to file the 2009 tax returns jointly constituted “omitted property” that might cost Lynda Bond approximately $20,000 in additional tax liability.
[¶17] The motions presented three narrow questions that the court could have, and should have, resolvеd in one brief hearing. Those questions were (1) by waiving objection to the referee’s report and consenting to entry of judgment in accordance with the referee’s report, did Lynda Bond fail to preserve objection to the report not addressing the 2009 tax return; (2) could a failure to fulfill a commitment, which was known when consenting to entry of judgment, become “omitted property“; and (3) was there an agreement to file the 2009 tax returns jointly, and, if so, had Christopher Bond breached that agreement? Thе first two questions presented legal issues involving court processes that only the court, not the referee, could resolve.
[¶18] Instead of hearing and resolving the motions, the court conducted a hearing on Lynda Bond’s motion to have the post-judgment motions referred to a referee for consideration and decision. After the hearing, the court granted the motion and
A. Relevant Case History
[¶19] The case had been heard by the referee over four days in February 2010. During that hearing, Christopher Bond was asked if he would be filing a joint income tax return with Lynda Bond for the 2009 tax year. Christopher Bond answered: “[M]y understanding is we’re going to file jointly.” The referee then confirmed: “So, I think it sounds to me like everyone is in agreement that you will file jointly for 2009.” There was no negative response to this observation.
[¶20] No income tax return, joint or individual, was apparently filed on or after the April 2010 filing deadline for 2009 income tax returns and before the referee filed her report in August 2010. The record does not indicate that either party brought the failure to file the 2009 tax return, as anticipated at hearing, to the referee’s or the court’s attention. The referee’s report did not address the 2009 income tax return.
[¶21] After the referee’s report was filed, there was no timely motion to amend findings pursuant to
[¶22] On September 23, 2010, the time for filing any appeal of the divorce judgment expired, see
[¶23] After hearing argument, the court referred the motions to the referee. The court’s order included no findings indicating exceptional circumstances requiring hearing by a referee. This appeal followed.
B. Interlocutory Appeal
[¶24] Rule 53(b)(2) of the Maine Rules of Civil Procedure notes that “[i]n absence of agreement of the partiеs, a reference shall be the exception and not the rule.” Addressing situations when a reference is ordered over objection, recent commentary on Rule 53 recommends an interlocutory appeal as an exception to the final judgment rule. Thus, 3 Harvey, Maine Civil Practice § 53:1 at 167 (3d ed.2011), suggests that when a reference is ordered over objection, “immediate review of an
[¶25] Pursuant to the collateral order exception to the final judgment rule cited in Maine Civil Practice, we will review the merits of an interlocutory order that (1) involves a final determination of a claim separable from and collateral to the underlying lawsuit, or presents a major and unsettled question of law, and (2) results in an irreparable loss in the absence of immediate review. See Liberty v. Liberty, 2001 ME 19, ¶ 10, 769 A.2d 845;7 Dairyland Ins. Co. v. Christensen, 1999 ME 160, ¶ 9, 740 A.2d 43; Pierce v. Grove Mfg. Co., 576 A.2d 196, 200 (Me.1990).
[¶26] Here, the issue related to the filing of the 2009 income tax return was collateral to and separable from the issues litigated in the divorce and addressed in the final judgment entered by agreement. At the time the matter was heard by the referee, the tax return filing question related only to future anticipated events, on or after the April 2010 filing deadline. The referee received no further information related to the anticipated tax return filing before rendering her report. Lynda Bond’s tactical decision to wait to raise the issue until after the divorce had becomе final confirms that she viewed the issue as collateral to and separable from the issues before the referee and the court in the divorce judgment. Thus, the first element for review pursuant to the collateral order exception to the final judgment rule is met.
[¶27] The questions that the referee is to resolve are very narrow, as discussed above. Two of the questions relate to court processes that occurred after the referee issued her report and can only be resolved by the court. The third question is as much a question of law as of fact: at hearing, the referee confirmed that the parties anticipated filing a joint 2009 income tax return at the time in the future when they would be obligated to file that return.
[¶28] Any report by the referee addressing these issues would be subject to review by the court, with the court free to adopt the report, or modify it, or reject it in whole or in part, or hear further evidence, or recommit it with instructions.
[¶29] Williams and Mahaney were decided based on the judicial economy exception to the final judgment rule. The judicial economy exception tо the final judgment rule requires that, in at least one alternative, the ruling on appeal might entirely resolve the case. U.S. Dep‘t of Agric., Rural Hous. Serv. v. Carter, 2002 ME 103, ¶ 13, 799 A.2d 1232. That exception
C. Reference Over Objection
[¶30] In referring the mаtter, the court stated that “it is in the interest of judicial economy for the Referee to hear the post-divorce motions because of the complex issues and the Referee’s familiarity with the case.” Despite the requirements of
[¶31] In family division practice, the filing of a post-judgment motion is treated as the commencement of a new action, the same as the filing of an original complaint for divorce or for establishment of parental rights.
[¶32] Appointment of a referee for such new actions filed as an original complaint or a post-judgment motion is governed by
[¶33] Unlike Rule 119, the general reference rule,
[¶34] Assuming, arguendo, that Rule 53 provides some narrow exception to the unequivocal prohibition on opposed references stated in Rule 119 and the Rule 119 advisory notes, here there was no showing and no finding of “some exceptional condition” to justify an opposed reference order. “Judicial economy,” the only justification stated in the court’s order, cannot equate with “exceptional condition,” if it did, the exception would be a blank check to delegate decision-making responsibility from overworked judges to referees. Moreover,
[¶35] With the post-judgment motions before it, the trial court was obligated to hear and decide those motions, absent agreement of the parties or a finding of exceptional circumstances — neither of which is present here — to justify delegation of the initial decision-making responsibility to the referee.
[¶36] This Court should reach the merits of this interlocutory appeal from a judge’s refusal to act on the business before the court and attempted delegation of the court’s adjudicative responsibilities to a referee, in violation of thе prohibition on such delegation stated in Rule 119 and applicable to post-judgment motions, which constitute a new Family Division action.
Notes
Title
1. Appointment of Referee. The court may appoint a referee in any proceeding for paternity, divorce, judicial separation or modification of existing judgments brought under this Title:
A. When the parties agrеe the case may be tried before a referee; or
B. Upon motion demonstrating exceptional circumstances that require a referee.
2. Payment for Service. Payment for the services of the referee is the responsibility of the parties, as ordered by the court. If the court finds that either or both of the parties are indigent, the court may pay the reasonable costs and expenses of the referee.
3. Referee‘s Report. If all parties waive their right to object to acceptance оf the referee‘s report, the court shall immediately enter judgment on the referee‘s report without a further hearing.