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Berg v. Berg

Court of Special Appeals of Maryland

June 2, 2016


          Eyler, Deborah S., Woodward, Salmon, James P. (Retired, Specially Assigned), JJ.


          Salmon, J.

          The Maryland Constitution, which was ratified in 1867, included a provision that granted most litigants in Maryland[1] a right to an in banc appeal. That right was set forth in Article IV, section 22 of the Maryland Constitution.

         Article IV, section 22 was amended in 1978 and in 2006. Nevertheless, much of the original language endures. Presently, section 22 reads:

Where any trial is conducted by less than three Circuit Judges, upon the decision or determination of any point, or question, by the Court, it shall be competent to the party, against whom the ruling or decision is made, upon motion, to have the point, or question reserved for the consideration of three Judges of the Circuit, who shall constitute a court in banc for such purpose; and the motion for such reservation shall be entered of record, during the sitting at which such decision may be made; and the procedure for appeals to the Circuit Court in banc shall be as provided by the Maryland Rules. The decision of the said Court in banc shall be the effective decision in the premises, and conclusive, as against the party at whose motion said points, or questions were reserved; but such decision in banc shall not preclude the right of Appeal by an adverse party who did not seek in banc review, in those cases, civil or criminal, in which appeal to the Court of Special Appeals may be allowed by Law. The right of having questions reserved shall not, however, apply to trials of Appeals from judgments of the District Court, nor to criminal cases below the grade of felony, except when the punishment is confinement in the Penitentiary; and this Section shall be subject to such provisions as may hereafter be made by Law.

(Emphasis added.)

         In this appeal, appellant, Steven Berg, makes an argument that has never been addressed by any Maryland appellate court during the (approximately) 150 years that Article IV, section 22 has been in effect. Mr. Berg maintains that the right to an in banc appeal "spring[s] only from trial verdicts and judgments, " and not from any other final judgment. Mr. Berg asserts that the issue considered by the three judges in this case was one that the panel had no jurisdiction to decide because the issue addressed by the panel did "not stem from a merits trial" but rather stemmed from the consideration by the in banc panel of an issue that arose long after the merits trial had been held. According to appellant, the word "trial, " as used in section 22, has a very narrow meaning.

         For the reasons set forth below, we conclude that the in banc panel did have jurisdiction in this case and we therefore affirm the order issued by that panel.


         This case had its origin in 2005, when Steven Berg filed, in the Circuit Court for Montgomery County, a complaint for divorce and other relief against appellee, Susan Berg. Ms. Berg filed a counter-claim for divorce in which she also asked for alimony, child support, child custody, and a monetary award.

         In the early part of June 2007, a merits trial was held to address numerous issues about which the parties disagreed. After an evidentiary hearing, the circuit court took the matter under advisement. The court, inter alia, later made a $450, 000 monetary award in favor of Susan Berg, which was reduced to judgment. Mr. Berg thereafter made irregular payments on that judgment but, to date, the judgment has not been paid in full.

         On August 7, 2012, Ms. Berg brought a garnishment action against Mr. Berg in which she sought to seize some of her ex-husband's personal property. With that filing, Ms. Berg attached an interest worksheet setting forth the method she had used in applying payments made on the judgment.[2] According to her worksheet, Mr. Berg, as of September 27, 2012, had paid $371, 562.51 toward the judgment but still owed $225, 575.62. In that worksheet, she allocated all the payments received to principal and none to interest.

         On March 27, 2014, Ms. Berg again brought a garnishment action - this time attempting to attach Mr. Berg's wages. She again attached an interest worksheet. That worksheet showed that she applied the payments first to interest and then to principal. The worksheet indicated that since September 27, 2012, Mr. Berg had made an additional payment of $10, 000, but he still owed $248, 746.65.

         Mr. Berg objected to the method his ex-spouse used in applying payments on the March 27, 2014 worksheet. He contended that Ms. Berg should have applied his payments first to principal.

         On October 1, 2014, the circuit court held an evidentiary hearing concerning Mr. Berg's objection to the garnishment worksheet. The purpose of the hearing was to determine the outstanding balance Mr. Berg owed on the judgment. At the hearing, exhibits were introduced and the court heard testimony from Ms. Berg. Thereafter, on December 17, 2014, the court entered a written order stating that all payments made on the judgment prior to August 7, 2012 should have been exclusively applied to the payment of principal and all payments made thereafter should be applied to the payment of accrued interest first and principal second.

         After Ms. Berg filed a timely motion to alter or amend judgment, which was denied, she noted an in banc appeal. A hearing before a panel of three Montgomery County Circuit Court judges was held on May 8, 2015. At the hearing, Mr. Berg argued, as he does here, that the in banc panel had no jurisdiction to entertain the appeal because the issue the panel was asked to consider did not "stem from a merits trial." The in banc panel ruled that it did have jurisdiction to hear the appeal and entered an order providing that all payments made on the $450, 000 judgment should be credited "first to interest and then to principal." Mr. Berg noted an appeal to this Court in which he does not claim that the in banc panel was incorrect in its ruling concerning the allocation of payments. Instead, the sole issue he presents is whether the in banc panel had jurisdiction to consider the issue it decided. According to Mr. Berg, because the panel had no jurisdiction, the order entered by the in banc panel should be stricken and the circuit court's order of December 17, 2014 reinstated.


"When interpreting constitutional provisions, we generally employ the same rules of construction . . . of statutory language." Davis v. Slater, 383 Md. 599, 604, 861 A.2d 78 (2004) . . . . One of the cardinal rules of interpretation is that a court should not reach a meaning beyond the Constitution unless the relevant section is ambiguous. Bernstein v. State, 422 Md. 36, 43 (2011) . . . .
"Like construing a statute, to ascertain the meaning of a constitutional provision . . . we first look to the normal, plain meaning of the language." Davis, 383 Md. at 604, 861 A.2d 78 . . . . When that language is clear and unambiguous, we need not review more than the words of the constitutional provision. Id. at 604-05, 861 A.2d 78 . . . . However, we note that our "goal . . . is always to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular provision, be it statutory, constitutional or part of the Rules." . . .

         Remson v. Krausen, 206 Md.App. 53, 61-62 (2012) (some citations omitted).

         III. HISTORY

         Before discussing the precise contentions of the parties in this appeal, it is useful to review some history. One of the framers of the Constitution of 1867 was Richard H. Alvey, who subsequently became a judge and later Chief Judge of the Maryland Court of Appeals. Judge Alvey was one of the judges ...

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