In Banc Review: An Alternative Tool for Disappointed Maryland Family Law Litigants

October 20, 2012

As a Maryland Divorce lawyer who is often approached by potential clients dissatisfied with trial court decisions in a variety of family law disputes, a recent opinion by the Court of Special Appeals that analyzes the constitutional right to an in banc review by a Circuit Court three judge panel caught my attention. As the Court of Special Appeals explained in Remson v. Krausen, this provision was adopted "to offer disappointed litigants an alternative method of review that was faster and less expensive than an appeal to [an appellate court in Annapolis]".

Remson v. Krausen is a divorce case in which the husband consented to an order that he refrain from contacting his estranged wife. Within thirteen days of the entry of this order, Wife filed a motion for contempt alleging that Husband had violated the no contact order. The judge, after hearing arguments, found that Husband had violated the order and was in contempt. He was sentenced to 30 days in prison that was suspended predicated on Husband's future compliance.

Many months later the case became a procedural nightmare with a twisting stream of motions and court rulings. The case wended its way through an in banc review and an appeal to the Court of Special Appeals.

Husband filed a motion to set aside the contempt order after many months on the grounds of his long term compliance. Counsel for Husband filed a motion to withdraw the motion to set aside the contempt order. This motion to withdraw seems to have crossed in the mail with the Judge's order setting aside the contempt. Husband's new attorney filed a motion to withdraw the motion to set aside that was granted. This vacated the judge's order setting aside the contempt, leaving the contempt order intact.

Husband's attorney blaming poor communication between himself and his client, asked the judge to reinstate the order setting aside the contempt. The judge denied this request.

Husband filed an in banc appeal that the three judge panel denied.

Husband then filed a motion then filed a motion to reconsider, alter or amend that the panel also denied.

This was procedural equivalent of a plate of spaghetti that went to the Court of Special Appeals. Without getting any further into the weeds on the court's decision, the major points of the holding are as follows:
1. The ruling of an in banc panel is conclusive on the party who sought it. The party who asked for the in banc panel review cannot appeal the party's disputes again to the Court of Special Appeals or the Court of Appeals. The party is bound by this substitute appeals process. The party who does not request the in banc review, retain all rights of appeal.
2. There can be no appeal to an in banc panel, unless the status of the case is such that it could be appealed to the Court of Special Appeals.
3. An in banc panel cannot review an issue that has not first been ruled upon by a Circuit Court judge.

MD Rule 2-551 governs the procedure for an in banc review. This alternative is available in family law cases including divorce, support, domestic violence, custody and visitation and marital property. Considering the current backlog implicit in the most recent annual report by the Court of Special Appeals, it is likely to be faster but does not cut-off an appeal by the opposing party. It may be less expensive. However in most but maybe not all counties, a three judge panel of circuit court judges is likely to be reluctant to overturn a ruling by a peer. Nevertheless, lawyers and their clients who have received an adverse decision in a family law case should be mindful that this as one of the tools in the tool kit.