author: MacDaniel, J.,

text:
    ELEANOR B. KINGSLEY v. DANIEL T. KINGSLEY
    [No. 633,
    September Term, 1979.]

      Decided April 9, 1980.

    The cause was argued before Thompson, Wilner and MacDaniel, JJ.

      Roger W. Titus for appellant.

      Harvey A. Jacobs, with whom were Belli, Weil & Jacobs on the brief, for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

On December 16,1977, Daniel T. Kingsley, appellee, filed a bill of complaint for a divorce a vinculo matrimonii against Eleanor B. Kingsley, appellant, alleging a one year voluntary separation of the parties as a basis for this action. Appellant filed an answer to the original bill of complaint on January 11, 1978, and then eventually filed an amended answer on August 16, 1978. On September 15, 1978, and again on February 8, 1979, testimony was taken in the Circuit Court for Montgomery County. The chancellor filed an opinion and order, dated April 17, 1979, granting a divorce a vinculo matrimonii to the appellee, and further ordering that the terms of a voluntary separation agreement between the parties, dated December 1, 1976 (amended April 22, 1977), be incorporated into the decree.

In the opinion and order of April 17, 1979, the chancellor ruled that the "Separation Agreement” was not induced by fraud, mistake, or coercion; that the amounts provided for child support were adequate and reasonable; that the amount provided for alimony was fair and reasonable; that the "Separation Agreement” was not inequitable; that the evidence was not sufficient to establish that the husband misrepresented or materially withheld the true nature of his income, either at the time of the execution of the "Agreement” or at the time of the hearing in this matter; that the evidence was not sufficient to constitute "changed circumstances” such that warrant an increase in the support and alimony amounts as provided in the "Agreement.”

Subsequently, on May 2, 1979, the chancellor filed a revised opinion and order that affirmed the April 17, 1979, opinion and order, except that portion dealing with child support. The "Separation Agreement” had provided for $1300.00 per month child support but only until the "dwelling house” was sold. It then provided for $500.00 per month child support. In the original opinion and order the chancellor erroneously considered the $1300.00 per month child support, but the "dwelling house” had been sold and he should have considered the $500.00 per month child support. In his revised opinion and order the chancellor noted that the "Agreement” increased the alimony for the wife after the "dwelling house” was sold, but decreased the child support from $1300.00 to $500.00 per month. Based upon this, the chancellor increased the child support by $250.00 per month which therefore raised the $500.00 per month to $750.00 per month for child support.

On appeal, appellant states her complaints as follows:

"I. In a non-culpatory divorce action where the parties have executed an agreement providing for alimony and child support, it is an abuse of discretion and reversible error where the chancellor makes an award of alimony and child support without any findings as to either the needs of the wife and children of the parties or the husband’s ability to pay.
II. In a non-culpatory divorce action where the parties have executed an agreement providing for alimony and child support, it is an abuse of discretion and reversible error where the chancellor treats the agreement of the parties with respect to alimony and child support as if it were a prior decree, declining to modify the amounts contained therein except upon a showing of changed circumstances or proof of unconscionability.
III. In a non-culpatory divorce action where the parties have executed an agreement providing for alimony and child support, it is an abuse of discretion and reversible error where the chancellor refuses to admit evidence of the standard of living of the parties prior to the separation.
IV. In a non-culpatory divorce action where the parties have executed an agreement providing for alimony and child support, it is an abuse of discretion and reversible error where the chancellor refuses to admit evidence of substantial assets which the husband presently controls as executor of an estate, the income from which he currently enjoys, and which he will inherit in the immediate future.
V. In a non-culpatory divorce action where the parties have executed an agreement providing for alimony and child support, it is an abuse of discretion and reversible error where the chancellor refuses to admit evidence of the fault which destroyed the home.
VI. In a non-culpatory divorce action where the parties have executed an agreement providing for alimony and child support, it is an abuse of discretion and reversible error where the chancellor fails to tax as part of the costs of the case the cost of a deposition admitted into evidence.”

These complaints can be summarized as follows: (1) that the chancellor failed to make findings as to her needs or the needs of the children; (2) that the chancellor treated the separation agreement as a prior decree and would only admit evidence of changed circumstances since the date of the separation agreement; (3) that the chancellor failed to admit evidence of the standard of living of the parties prior to the execution of the separation agreement; (4) that the chancellor failed to admit evidence of the appellee’s expectations from inheritance; (5) that the chancellor failed to admit evidence of the fault which destroyed the home, and (6) that the chancellor failed to tax the appellee with the costs of a deposition which was admitted into evidence.

Before considering these complaints, a brief factual background is necessary.

Appellant (wife) and appellee (husband) were married on January 26, 1955, and six children were born of this marriage. At the time of the hearing in this case, there were three children living at home with the appellant, whose ages were 7, 12 and 18. Pursuant to a written separation agreement, executed on December 1, 1976, the parties separated on or about December 14,1976. Both parties were represented by counsel at that time, and both have continued with representation up to the present. This separation agreement, on its face, exhibited a comprehensive, exhaustive and knowledgeable consideration of all of the rights of the parties, including but not limited to alimony and child support. When the appellee filed the bill of complaint on December 16,1977, copies of the separation agreement were attached, with a request to incorporate the separation agreement into any divorce decree that may be granted. Also filed in this case was an amendment to the separation agreement that had been executed by the parties on April 22,1977. The appellant filed an answer to the bill of complaint on January 11, 1978, admitting all allegations contained therein, and praying that the court grant such relief as may be just and proper. On August 16, 1978, appellant filed an amended answer to the bill of complaint which, for the first time, in paragraph 7 stated, "Further answering, Defendant [appellant] alleges that the provisions contained in the voluntary separation and property settlement agreement of December 1,1976, for her support and support of the minor children of the parties are not adequate to meet their present needs.” This amended answer contained a prayer, requesting an increase in alimony and child support.

I.

Of the six alleged errors, numbers II, III and V interrelate and will be considered together. The chancellor was faced with an action for divorce, a request for an increase in child support and alimony, and the status of a separation agreement valid on its face and not challenged as being the result of fraud, mistake, coercion, or irregularity. Appellant introduced testimony in an attempt to prove her allegation that appellee misrepresented or materially withheld the true nature of his income both at the time of the execution of the separation agreement and at the time of the hearing. The chancellor found this allegation without merit and we cannot say this was an abuse of discretion or clearly erroneous. Md. Rule 1086.

Before considering any increase the chancellor next had to determine whether to adopt the terms of the separation agreement relating to child support and alimony as being fair and reasonable at the time of the execution of the separation agreement. The controlling law in Maryland is contained in Eaton v. Eaton, 34 Md. App. 157 (1976), where this Court adopted the trial judge’s opinion, which stated:

" 'By virtue of the common law and Section 28, Article 16, Md. Code, separation and property settlement agreements not disclosing on their face any injustice or inequity are presumptively valid and the burden to prove that their execution was caused by coercion, fraud or mistake is upon the party making the allegation.’ ” Id. at 162.

See also Jackson v. Jackson, 14 Md. App. 263 (1971).

Appellant apparently takes the position that the chancellor should allow testimony of the standard of living of the parties prior to the execution of the separation agreement, the circumstances leading up to the separation and the fault that destroyed the home before determining whether the separation agreement was fair and reasonable. Failing to do this, reasons the appellant, the chancellor gave "res judicata” effect to the separation agreement. With no contention that all of these elements were not fairly taken into consideration by the parties at the time of the execution of the separation agreement, it would be absurd to adopt appellant’s position. Under the circumstances of this case, the court having concluded that there was no material misrepresentation or concealment of assets, to allow reference to conditions which existed prior to a separation agreement, fair and reasonable on its face, would undermine the presumptive validity and binding effect of the separation agreement. We should encourage the litigants in a domestic situation to seek proper legal assistance and enter into a fair and reasonable settlement of their disputes; evidently the Legislature felt so in enacting Art. 16, § 28, supra. The chancellor, under the facts existing, did not "rubber stamp” or give res judicata effect to the separation agreement. He found it to be fair and reasonable as to alimony and child support.

Once finding the separation agreement to be fair and reasonable, the chancellor then had to rule as to what evidence was admissible in relation to appellant’s request for an increase in alimony and child support. Clearly only evidence of "change of circumstances” since the execution of the separation agreement would be relevant.

At this juncture appellant still complains, arguing that "fault that destroyed the home” by Maryland law, must be considered as it relates to amount in any "award of alimony” determination. We next address this complaint.

II.

Appellant has alleged that "in a non-culpatory divorce action when the parties have executed an agreement providing for alimony and child support, it is an abuse of discretion and reversible error where the chancellor refuses to admit evidence of the fault which destroyed the home.” As the separation agreement established entitlement to alimony (not disputed by either party), appellant’s position must be that "fault which destroyed the home” is a necessary element to determine the amount of alimony.

Appellant contends the law in Maryland is clear as to the factors necessary for this determination. We begin our analysis of these factors as they were stated in Timanus v. Timanus, 178 Md. 640 (1940):

"It is a general rule that a court, before determining the award of alimony, should consider the maintenance of the wife in accordance with the husband’s duty to support her suitably, together with the husband’s wealth and earning capacity. In addition to the financial circumstances of the parties, the court should also usually consider their station in life, their age and physical condition, ability to work, the length of time they lived together, the circumstances leading up to the separation, the fault which destroyed the home, and their respective responsibilities for the care and support of the children. The award should be made in an amount sufficient to support the wife in reasonable comfort in her station in life. But when the husband owns no property, the court can not base the award of alimony upon a hope of gratuities or a mere surmise that he will receive them. The wife is entitled to demand such support as her husband is reasonably able to furnish from his property or earnings. In applying for alimony, a wife is not asking for favors, but demanding rights, and these rights should be considered in connection with her husband’s capacity. Wygodsky v. Wygodsky, 134 Md. 344, 347, 106 A. 698, 699; Roberts v. Roberts, 160 Md. 513, 525, 154 A. 95, 100; Muir v. Muir, 133 Ky. 125, 92 S.W. 314, 909 [sic]; Hooper v. Hooper, 102 Wis. 598, 78 N.W. 753, 755; Boyden v. Boyden, 50 R.I. 326, 147 A. 621.” Id. at 642-43.

It would appear that Timanus is the first case in Maryland that uses the language, "In addition to the financial circumstances of the parties, the court should also usually consider their station in life, their age and physical condition, ability to work, the length of time they lived together, the circumstances leading up to the separation, the fault which destroyed the home, and their respective responsibilities for the care and support of the children.” (Emphasis added.) The only two Maryland cases quoted by Timanus in reference to the above factors are Wygodsky v. Wygodsky, 134 Md. 344 (1919) and Roberts v. Roberts, 160 Md. 513 (1931). In the Wygodsky case, the only issue concerned the husband’s contention that the amount of alimony awarded the wife was excessive. The Court found this contention without merit and stated at 347:

"The award or the amount of an allowance as alimony is largely within the judicial discretion and rests upon all the facts and circumstances of each case having regard 'to the husband’s income, the estate of the wife, the age and condition of the parties, the disposition and care of the children and the ability of the parties to care for themselves.’ ”

In Roberts, the Court determined that the wife was entitled to the divorce and in considering the amount of alimony, stated at 525:

"While we have for the reasons stated condemned the form in which alimony was decreed in this case, it does not follow that the expenses chargeable against the wife or against property which she and her husband hold as tenants by the entireties are to be disregarded. On the contrary, all such expenses are to be considered, together with such factors as the financial circumstances of the parties, their station in life, expenses which the wife has been compelled to incur as a result of the husband’s failure to adequately provide for his family, the age and physical condition of the parties and their children, and the expense of educating the children, and an allowance, based upon those factors and all other facts and circumstances which may legitimately affect them, made separately for the wife and children which will support them in reasonable comfort in their station in life. 1 R. C. L. "Alimony,” secs. 77, 78.”

We conclude, then, that neither of these cases is authority for considering "fault that destroyed the home” as an element in determining the amount of alimony to be awarded. The Timanus case also referred to three out-of-state cases, Muir v. Muir, 133 Ky. 125, 92 S.W. 314; Boyden v. Boyden, 50 R.I. 326, 147 A. 621, and Hooper v. Hooper, 102 Wis. 598, 78 N.W. 753. The Hooper and Boyden cases do use the "fault” language in listing the factors to be considered but neither of those cases actually involved a "fault” situation. The Muir case is the only case cited by Timanus that actually talks about the "fault” of the husband in awarding additional alimony to the wife. However, in that case the husband, unbeknown to the wife, had contracted syphilis and, in his relations with his wife, she (and later one of the children) showed symptoms of having the disease. The Muir Court found the "syphilis issue” relevant because it tainted the wife and child and threatened their life and future usefulness. Muir reasons that where "fault” creates an economic problem, it can be considered in awarding alimony. It is further interesting to note that the reason for granting the divorce had nothing to do with the syphilis, as the divorce was granted on the basis of the husband’s later adulterous relationships, even after the wife had knowledge that he had syphilis.

In Timanus the wife had been granted a divorce a mensa et thoro and awarded permanent alimony. She appealed contending the amount of alimony awarded was not sufficient' for her maintenance and not commensurate with the means and station in life of her husband. The case does not even discuss "fault,” but merely lists those elements quoted supra that should be considered.

The factors to be considered in an award of alimony, including "fault that destroyed the home” first stated in Timanus have been repeated in many other Maryland cases, too numerous to cite, up to the present time. There are no Maryland cases in which either Appellate Court has expressly increased an alimony award based on the fault that destroyed the home. Many of these cases involve complaints by the husband that the amount of alimony awarded to the wife was excessive. In all of these cases the Courts have reviewed the income and assets of the husband, the income and assets of the wife, the needs of the wife, as well as the husband’s ability to pay, and then determined the correctness of the amount of alimony that had been awarded. The "fault that destroyed the home” was not discussed, but merely listed as among those factors to be considered in an award of alimony. See Willoughby v. Willoughby, 256 Md. 590 (1970); Mays v. Mays, 232 Md. 122 (1963); Newmeyer v. Newmeyer, 216 Md. 431 (1958); Link v. Link, 35 Md. App. 684 (1977); Kramer v. Kramer, 26 Md. App. 620 (1975); Flood v. Flood, 24 Md. App. 395 (1975).

Many of the cases that list "fault that destroyed the home” as a factor in determining an award of alimony, also state that "alimony is based upon need and is never a punitive measure.” Flanagan v. Flanagan, 270 Md. 335 (1973); Bowis v. Bowis, 259 Md. 41 (1970); Burton v. Burton, 253 Md. 233 (1969); Danziger v. Danziger, 208 Md. 469 (1955); Sugarman v. Sugarman, 197 Md. 182 (1951); Waters v. Waters, 191 Md. 436 (1948); Altman v. Altman, 36 Md. App. 538 (1977), aff'd, 282 Md. 483 (1978); Hall v. Hall, 32 Md. App. 363, cert. denied, 278 Md. 723 (1976); Quinn v. Quinn, 11 Md. App. 638, cert. denied, 262 Md. 749 (1971).

A typical example of this language can be seen from Waters, supra, 191 Md. at 440, where it is stated, "Although, in this case, the husband has been found guilty of adultery, the awarding of alimony is never a punitive measure.” Following this statement, the Waters case went on to list the factors as stated in Timanus, which include "the fault which destroyed the home.”

In Altman v. Altman, supra, the husband was found to be at fault. In reviewing the alimony award the Court said at 550, "We do, however, have the responsibility of determining whether the chancellor in the exercise of his sound discretion correctly considered the criteria established for the determination of the amount of alimony to be awarded; whether he considered the needs of the wife, the ability of the husband to pay and has avoided the use of the alimony award as a means of punishment.”

In Sugarman v. Sugarman, supra, at 188, the Court said, "His [husband’s] conduct leading up to the divorce may be considered, but he cannot be penalized or punished by the amount of alimony awarded, for 'alimony is never a punitive measure’.”

After this review of the Maryland decisions stating that "alimony can never be a punishment” and that the factor of "fault that destroyed the home” is relevant in an award of alimony, we find no basis for the conclusion suggested by appellant that "fault that destroyed the home” is necessarily relevant to amount of alimony to be awarded. We therefore conclude that "fault that destroyed the home” is a relevant element to determine entitlement to alimony, but can only be considered as an element in the amount of alimony to be awarded when it affects the economic needs of the party seeking alimony.

III.

Here, appellant makes the broad allegation that the chancellor made an award of alimony and child support without any findings as to either the needs of the wife and children of the parties, or the husband’s ability to pay. From our prior rulings, we are now only concerned with the appellant’s request for an increase from the amounts contained in the separation agreement. To obtain an increase it was incumbent upon appellant to present evidence of "change of circumstances” since the execution of the separation agreement. Testimony of need was introduced, but the chancellor evidently felt it was insufficient to show change of circumstances. From a review of the testimony, we cannot say the chancellor abused his discretion or was clearly erroneous. Md. Rule 1086.

IV.

Appellant is correct that in Benner v. Benner, 37 Md. App. 367 (1977), this Court considered for the first time the issue of whether a chancellor may properly consider an expected inheritance in determining an award of alimony. Benner stated:

"Without evidence as to when the estate will be distributed, the chancellor had no basis upon which to gauge the effect of this expected inheritance on the present needs of appellant. It is clear, however, that this mere expectation of inheritance afforded appellant no financial support at the time alimony was awarded. The fact that appellant may not be destitute 'over any long term’ is virtually irrelevant. Alimony is to be awarded based on circumstances existing at the time of the award. If those circumstances change, the award can be modified.” 37 Md. App. at 371.

There was no evidence to establish when either estate would be distributed other than within a few years. The income from these estates was already accounted for in the overall financial picture. From this evidence, we cannot say the chancellor abused his discretion or was clearly erroneous in not taking into account the expected inheritance. Md. Rule 1086.

V.

When questioned concerning which party would be assessed the costs of a deposition of the appellee, portions of which were placed in the record, the chancellor responded, "It will be taxed. I haven’t decided against whom.” The order and opinion of the chancellor did not mention costs, nor of what the costs consisted. We therefore must remand for determination of this narrow issue.

Judgment affirmed in part, and remanded in part for further consideration consistent with this opinion.

Costs divided equally between the parties.

      1. Md. Ann. Code art. 16, § 28, in pertinent part reads as follows: "§ 28. Effect of agreement and settlements between parties.

      Any deed or agreement made between husband and wife respecting alimony, support, maintenance, property rights, or personal rights, or any settlement made in lieu of alimony, support, maintenance, property rights or personal rights shall be valid, binding and enforceable to every intent and purpose, and the deed or agreement may not be a bar to an action for divorce, either a vinculo matrimonii or a mensa et thoro, as the case may be, whether the cause for divorce existed at the time or arose prior or subsequent to the time of the execution of the deed or agreement, or whether at the time of making the deed or agreement the parties were living together or apart. However, whenever any deed or agreement shall make provision for or in any manner affect the care, custody, education or maintenance of any infant child or children of the parties, the court has the right to modify the deed or agreement in respect to the infants as to the court may seem proper, looking always to the best interests of the infants.”


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    HOWARD CHESTER KELLY, JR. v. STATE OF MARYLAND
    [No. 655,
    September Term, 1979.]

      Decided April 10, 1980.

    The cause was argued before Thompson, Couch and MacDaniel, JJ.

      Timothy E. Meredith and Barbara Mello, with whom were Robert W. Warfield and Corbin, Heller & WarGeld, Chartered on the brief, for appellant.

      William H. Kenety, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Warren Duckett, State’s Attorney for Anne Arundel County, and Ronald Naditch, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Appellant’s major contention on appeal is that his conviction under Md. Code, Art. 27, § 554 for unnatural or perverted sexual practices is an unconstitutional infringement of his right to privacy. He also argues he was denied equal protection, and subjected to cruel and unusual punishment.

The prosecutrix testified at the time of the trial that she was abducted at knifepoint on the parking lot of Harundale Mall in Anne Arundel County, Maryland on the afternoon of May 5, 1978, by two young men, appellant Howard Chester Kelly, Jr., and his friend, Ronald Holden. It was her testimony that she was driven, against her will, to a secluded area, an abandoned missile site in Anne Arundel County, where she was assaulted, raped and forced to engage in fellatio. According to the prosecutrix, at the conclusion of the sexual encounter the defendant abandoned her at the missile site. She wandered to a nearby house saying she was "dumped”; the lady of the house called the police. Later the same afternoon the appellant was arrested.

At the time of trial, the appellant and his friend each took the stand and testified, admitting that Holden had had sexual intercourse with the prosecutrix and that she had performed fellatio on each of them a number of times. They testified that the entire episode was at the prosecutrix’s urging and initiative. According to the defendants, they and the prosecutrix had spent time together that afternoon in a pool hall at Jumpers Mall. It was at the suggestion of the prosecutrix, who claimed that she used to live in the area, that they drove to the abandoned missile site. They testified that after arriving at the missile site, the prosecutrix was an eager and willing participant in all sexual activities that took place, and that all that had occurred was with her consent.

The jury found appellant not guilty on all counts of the indictment in which force or threat of force was an element, but found him guilty under count six, "Perverted Sexual Practices.” The constitutional questions raised here were properly preserved in appropriate objections to the instructions, as well as otherwise. Judge Raymond G. Thieme, Jr., sitting in the Circuit Court for Anne Arundel County, imposed a sentence of one year which was suspended. A three year period of probation was imposed.

The Supreme Court has recognized that the right of privacy may be constitutionally protected in e.g., Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972); Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973); Carey v. Population Services International, 431 U.S. 678, 97 S. Ct. 2010, 52 L. Ed. 2d 675 (1977). The issue in the present case is whether the right of privacy applies to the type of conduct prohibited by § 554. In Carey v. Population Services, supra, the Supreme Court, in its most recent case interpreting the right to privacy, stated that the Court had not answered the question to what extent the Constitution prohibits the state from regulating private consensual sexual behavior among adults. 431 U.S. at 688, n. 5, 97 S. Ct. at 2018. Thus far, the right to privacy has been held by the Court to apply to the marital relationship; Griswold, supra, the right of individuals to decide whether to bear children; Eisenstadt v. Baird, supra, and the decision whether to terminate pregnancy; Roe v. Wade, supra. For a summary of other cases where the Court said that privacy applies, see, Carey, supra, 431 U.S. at 685, 97 S. Ct. at 2016.

In Doe v. Commonwealth’s Attorney for City of Richmond, 403 F. Supp. 1199 (E.D. Va. 1975), aff'd. mem., 425 U.S. 901, 96 S. Ct. 1489, 47 L. Ed. 2d 751 (1976), petitioners challenged the constitutionality of a Virginia sodomy statute as applied to adult male consensual conduct. In analyzing whether the Constitution prohibited such a statute, the District Court concluded that since sodomy "is obviously no portion of marriage, home or family life,” the state could appropriately punish sodomy in the promotion of morality and decency. 408 F. Supp. at 1202. The Supreme Court affirmed this decision in a Memorandum Opinion. Insofar as a Memorandum Opinion is authority, it appears from our brief analysis of recent Supreme Court decisions that the right of privacy does not protect the perverted sex practice of which appellant was convicted in the present case. The rule that the right to privacy does not invalidate statutes prohibiting consensual sexual practices is supported by most other courts that have considered the question.

The majority rule has received the support of this Court in dicta. In Hughes v. State, 14 Md. App. 497, 287 A.2d 299, cert. denied, 409 U.S. 1025, 93 S. Ct. 469, 34 L. Ed. 2d 317 (1972), this Court found that the accused had no standing to challenge the constitutionality of the perverted sex practices statute as a consenting adult when he had indulged in the practice with a minor. The Court stated:

"Nothing we have said in determining that Hughes had no standing to contest the constitutionality of the statute is to be construed as implying that we believe that the statute is unconstitutional as to adults, married or unmarried, consenting to the acts proscribed. We shall decide that question when it is properly presented to us. We observe, however, that although it is conceivable that a husband and wife could be convicted under § 554 even though the evidence established that the act was committed with the consent of both parties, we think it unlikely. We are not aware of a case in this jurisdiction where a husband or wife was convicted of the offense. If the acts were in private there would be no witnesses, and if consensual the parties would be equally guilty. Their testimony as witnesses would then require corroboration. Early v. State, 13 Md. App. 182. And of course, neither the husband nor the wife would be a compellable witness against the other. Code, Art. 35, § 4. Mr. Justice Douglas, speaking for the Court in Griswold v. State of Connecticut, 381 U.S. 479, said, at 486:
'We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.’
We share the sentiments of the court in Pruett v. State, 463 S.W.2d 191, 195 (Texas 1970) that to extend the protection of this right of privacy of the marital union to strike down a statute proscribing cunnilingus, fellatio, and the whole field of other unnatural or perverted sexual practice, when successful prosecution of private consensual sexual acts between married couples are at most only 'conceivable’, is not consistent with the description of the marriage relationship and right of privacy described by Mr. Justice Douglas.” 14 Md. App. at 503-05. (footnotes omitted).

We are not persuaded to change the rule and invalidate a legislative prohibition against sodomy, in the absence of a clear lead from the Supreme Court of the United States or from the Court of Appeals of Maryland. We are especially reluctant to invalidate a crime of such ancient vintage. Sodomy was prohibited by Acts of 1793, Chapter 57, Sec. 10. See also Exodus 22:19, Leviticus 18:22-23, and Deuteronomy 23:17.

Appellant argues that inasmuch as fornication is not prohibited by Maryland law, persons indulging in private, consensual acts of sodomy are denied equal protection of the law. The argument is that there is no essential difference between vaginal intercourse and other sex acts. He also argues that any punishment for sodomy is cruel and unusual. Once again we repeat, we will not invalidate laws of such ancient vintage without clear authority from higher courts.

Judgment affirmed.

Appellant to pay the costs.

      . Art. 27, § 554 in pertinent part reads as follows:
      "§ 554. Unnatural or perverted sexual practices.

      "Every person who is convicted of taking into his or her mouth the sexual organ of any other person or animal, or who shall be convicted of placing his or her sexual organ in the mouth of any other person or animal, or who shall be convicted of committing any other unnatural or perverted sexual practice with any other person or animal, shall be fined not more than one thousand dollars ($1,000.00), or be imprisoned in jail or in the house of correction or in the penitentiary for a period not exceeding ten years, or shall be both fined and imprisoned within the limits above prescribed in the discretion of the court.

      . Appellant claims both the Constitution of the United States and the Constitution of Maryland were violated; his arguments, however, are based on alleged violations of the federal constitution. We will so limit our opinion.

      . See, Doe v. Commonwealth, supra, State v. Bateman, 113 Ariz. 107, 547 P.2d 6, cert. denied, 429 U.S. 864 (1976); Carter v. State, 255 Ark. 225, 500 S.W.2d 368 (1973), cert. denied. 416 U.S. 905 (1974); Dixon v. State, 256 Ind. 266, 268 N.E.2d 84 (1971); Hughes v. State, 14 Md. App. 497, 287 A.2d 299, cert. denied, 409 U.S. 1025, 93 S. Ct. 469, 34 L. Ed. 2d 317 (1972); State v. Elliott, 89 N.M. 305, 551 P.2d 1352 (1976); Washington v. Rodriguez, 82 N.M. 428, 483 P.2d 309 (1971); People v. Mehr, 87 Misc. 2d 257, 383 N.Y.S.2d 798 (1976); and People v. Rice, 87 Misc. 2d 257, 383 N.Y.S.2d 799 (1976). aff'd. 41 N.Y.2d 1018. 363 N.E.2d 1371, 395 N.Y.S.2d 626 (1977); State v. Poe, 40 N.C. App. 385, 252 S.E.2d 843 (1979); Canfield v. State, 506 P.2d 987 (Okla. Crim. App. 1973), appeal dismissed, 414 U.S. 991, 94 S. Ct. 342 (1973), reh. denied, 414 U.S. 1138, 94 S. Ct. 884 (1974); Pruett v. State, 463 S.W.2d 191 (Tex. Crim. App. 1970), appeal dismissed, 402 U.S. 902, 91 S. Ct. 1379, reh. denied, 403 U.S. 912, 91 S. Ct. 2203 (1971); State v. Rhinehart, 70 Wash. 2d 649, 424 P.2d 906, cert. denied, 389 U.S. 832 (1967).

        But see, Cotner v. Henry, 394 F.2d 873 (7th Cir.), cert. denied, 393 U.S. 847 (1968); Buchanan v. Batchelor, 308 F. Supp. 729 (N.D. Tex. 1970), vacated on other grounds 401 U.S. 989, 91 S. Ct. 1221. 28 L. Ed. 2d 526 (1971); State v. Pilcher, Io., 242 N.W.2d 348 (1976); Commonwealth v. Balthazar, 366 Mass. 298, 318 N.E.2d 478 (1974); People v. Howell, 396 Mich. 16, 238 N.W.2d 148 (1976); State v. Ciuffini, 164 N.J. Super. 145, 395 A.2d 904 (1978); New York v. Onofre, 48 U.S.L.W. 2520 (Feb. 12, 1980) (N.Y. Sup. Ct., App. Div. 4th Dept.).

        See also, Lovisi v. Slayton, 539 F.2d 349 (4th Cir.), cert. denied, 429 U.S. 977 (1976); State v. Saunders, 75 N.J. 200, 381 A.2d 333 (1977); People v. Jose L., 99 Misc. 2d 922, 417 N.Y. Supp. 2d 655 (1979); Tribe, American Constitutional Law, § 15-13 (1978); Craven, Personhood: The Right to Be Let Alone, 1976 Duke Law J. 699 (1976); Richards, Unnatural Acts and the Constitutional Right to Privacy: A Moral Theory, 45 Fordham L. Rev. 1281 (1977) ; Wilkinson and White, Constitutional Protection for Personal Lifestyles, 62 Cornell L. Rev. 563 (1977); Note on Privacy: Constitutional Protection for Personal Liberty, 48 N.Y.U.L. Rev. 670 (1973); Annot. 58 A.L.R.3d 636 (1974).


author: Moore, J.,

text:
    WILLIAM JABINE, II et al. v. ROY PRIOLA, GUISEPPE PRIOLA and CHARLES L. CRANE, JR. k/a Villa Romana Italian Restaurant, No. 2, Inc., etc.
    [No. 682,
    September Term, 1979.]

      Decided April 10, 1980.

      The cause was argued before Moore, Melvin and Couch, JJ.

      Richard G. Anderson, Assistant City Attorney for the City of Annapolis, with whom were Eugene M. Lerner, City Attorney, and Richard T. Wright, Assistant City Attorney, on the brief, for appellant Mayor and Aldermen of the City of Annapolis. Submitted on brief by John R. Warren for other appellants.

      Steven R. Migdal, with whom were Manis, Wilkinson & Snider, Chartered on the brief, for appellees.
   Moore, J.,

delivered the opinion of the Court.

Roy Priola, Guiseppe Priola, and Charles L. Crane, Jr. (Priolas), operate the Villa Romana Italian Restaurant No. 2, Inc., a dining establishment in the heart of the City of Annapolis. Feeling that their business would be enhanced by the sale of beer and wine on the premises, they applied for a Class B "Beer and Light Wine License” and the requisite conditional use zoning permit.

A public hearing was held on both applications before the Mayor and Aldermen of the City of Annapolis on April 17, 1978. The Priolas testified in support of their applications, and thirteen other individuals in the audience registered their approval. Eight citizens testified in opposition and another twenty-two registered their disapproval on the record. A decision was reached by the Mayor and Aldermen on May 8, 1978. In their capacity as the Board of Liquor License Commissioners for the City of Annapolis, they denied the application for the beer and wine license. As the City’s zoning authority, they denied the conditional use application. Each decision was appealed by the Priolas to the Circuit Court for Anne Arundel County on June 7,1978.

Following the docketing of the appeal, the Priolas moved to have the two cases consolidated. Intervention in the cases as consolidated was sought by William Jabine, II, Mrs. William P. Stevens, and the City. On August 8, 1978, the circuit court (Thieme, J.) granted the motions to intervene and further ordered the City to "file its Answer or other responsive pleading... on or before thirty (30) days from the date of this Order.”

After some procedural skirmishing, which shall be discussed infra, a hearing on the merits of the Priolas’ appeal was held on February 8, 1979 before the Honorable Thomas J. Curley, Associate Judge of the District Court of Maryland, sitting by designation. On May 9, 1979, Judge Curley reversed both decisions of the Mayor and Aldermen; he ordered them to grant the liquor license to the Priolas subject to certain conditions. By "Supplemental Revisory Memorandum” dated May 17, 1979, he ordered that the Priolas receive a conditional use permit allowing them to use the Class B, "Beer and Light Wine License.” From the adverse determination of the circuit court, the City, Mr. Jabine, and Mrs. Stevens noted an appeal to this Court. They contend that the circuit court lost jurisdiction over the liquor license appeal because it did not decide the case or pass an order for extension within the thirty day period required under Md. Ann. Code, art. 2B, § 175 (e) (3) (1976) and that the circuit court erroneously reversed the decision in the conditional use appeal. We are asked to reverse the circuit court and to reinstate the decision of the Mayor and Aldermen.

I

In their brief the Priolas have urged us to dismiss the appeal because:

1) This Court has no jurisdiction to hear an appeal in a liquor license proceeding unless the circuit court has finally decided "a point of law at variance with any decision previously rendered by any other judge of the State on the same question ...” and no such variance exists in this case; and
2) None of the intervenors has standing to bring an appeal to this Court in either the liquor license or conditional use zoning cases.

For the reasons that follow, we deny the motion to dismiss, finding that we have jurisdiction and that all intervenors have standing.

A. The Jurisdiction of this Court to Hear an Appeal Involving a Liquor License Application

Under the Code, the decision of the circuit court in a liquor license appeal "shall be final and effective at once.” Md. Ann. Code, art. 2B, § 175 (f) (1979 Cum. Supp.). A limited appeal may be brought to this Court to decide a question of law determined below which is at variance with any decision previously rendered by another judge on the same question. Id. If the limited appeal is properly before us, we may decide only the question of law at variance, and we are expressly denied authority to pass upon "any question of fact.” Id.

The alleged variance in the instant appeal stems from a disputed interpretation of Md. Ann. Code, art. 2B, § 175 (e) (3) (1976), which provides:

"The failure of the court to determine an appeal within a period of 30 days after the record has been filed in court by the local board as above provided, shall constitute an automatic affirmance of the local board’s decision, unless the time has been extended by the court for good cause shown.”

(Emphasis added.) The record in the instant case was filed with the circuit court on July 10, 1978. Thus, in order to preserve its jurisdiction over the liquor license appeal, it was incumbent upon the court to decide the appeal within thirty days or to pass an order within the thirty day period, based on good cause, extending the time for decision. See Scherr v. Braun, 211 Md. 553, 128 A.2d 388 (1957); Pearce v. Board of Liquor License Commissioners, 228 Md. 515, 180 A.2d 651 (1962).

The City filed a motion to dismiss the liquor license appeal because thirty days had elapsed since the filing of the record without any order for extension having issued. A hearing was held on October 11, 1978, and the circuit court (Williams, J.) subsequently ruled that thn "action properly was extended automatically, 'without special order ...’ ” by virtue of a court order on August 8, 1978 allowing the City to intervene and affording it thirty days to file an answer. Although the intervenors persistently sought to relitigate the issue in the subsequent proceedings, Judge Williams’ decision remained undisturbed as the determinative ruling under § 175 (e) (3).

The appellants-intervenors argue that Judge Williams’ ruling is at variance with a prior decision by Judge Sachse in the case of Lederberg v. Mayor of Annapolis, Law No. C5724 (Cir. Ct. of Anne Arundel County, filed November 15, 1972). In that case, Mr. Lederberg argued that "when the Court asked for briefs and did not decide the case within the thirty days ..., it was an automatic extension by implication....” Further, he contended:

"[T]hat when the Court requested the City to submit a brief and took the matter under advisement, the matter was taken under control and was, therefore, privileged to consider the evidence in detail in order to resolve the complex question which in the interest of justice, the Court is privileged to do.”

Judge Sachse rejected this argument and held that the failure of the court to act within the stated period deprived it of any further power to proceed in the case. Judge Williams, in the instant case, specifically found that Lederberg had applied § 175 (e) (3) "somewhat overbroadly.” He concluded that the court’s order allowing the City to file an answer operated as an indefinite extension of the thirty day period.

We have little difficulty in finding a variance as to a point of law between the decisions. Judge Sachse ruled that no automatic extension was permitted under § 175 (e) (3), while Judge Williams held that the period in the instant case has been "extended automatically____” Therefore, this Court has jurisdiction of the liquor license appeal to decide the point of law at variance. Before proceeding to a consideration of that issue, we will rule upon the Priolas’ challenge to the standing of the intervenors.

B. The Standing of William Jabine, II and Mrs. William P. Stevens

The record indicates that Mrs. Stevens sought intervention in the circuit court because of her interest as a neighborhood property owner. Her petition to intervene was not opposed by the Priolas in the circuit court. The order granting intervention stated that Mrs. Stevens resided at 9 Cornhill Street in the City of Annapolis. At no time in these proceedings have the Priolas contradicted this evidence of Mrs. Stevens’ property interest. Mr. Jabine did testify during the public hearing. He stated that he was a local property owner, and that he viewed the "beer and wine place” as "being a great detriment to my property. . . .” The evidence of his property ownership was unrefuted.

It is now argued by the Priolas that the "record is absolutely bare as to essential facts necessary to support the appeal of the individual [intervenors]. . . .” In our view, the ¡evidence of record: that the individual intervenors were affected property owners was sufficient to give them an interest in the proceedings. Permissive intervention, by virtue of Md. Rule 208 (b), lies within the sound discretion of the circuit court, and on appeal may be reviewed only for an abuse of that discretion. Maryland Radiological Society, Inc. v. Health Services Cost Review Commission, 285 Md. 383, 402 A.2d 907 (1979). Mr. Jabine’s and Mrs. Stevens’ interests as affected property owners affirmatively supports the court’s exercise of discretion permitting them to intervene. Nyburg v. Solmson, 205 Md. 150, 156-57, 106 A.2d 483, 485-86 (1954); Md. Rule 208 (b). Having correctly acquired the status of parties in the proceedings below, they properly could take any allowable appeal to this Court.

An appeal to this Court is permitted in a liquor license case by virtue of Md. Ann. Code, art. 2B, § 175 (f) (1979 Cum. Supp.) if a variance exists, as we have found, supra, that it does. In a zoning case, an appeal to this Court is permitted under Md. Ann. Code, art. 66B, § 4.08 (e) (1978). Neither statutory provision specifically indicates who may appeal. Logically, all those parties properly in the case at the circuit court level, by intervention or otherwise, see note 8, supra, may take an appeal to this Court if the circuit court’s decision adversely affects them. Therefore, Mr. Jabine and Mrs. Stevens have standing to appeal.

C. The Standing of the City of Annapolis

The Priolas challenge the standing of the City to appeal both the liquor license and conditional use aspects of this case. It is their position that "the City has no right to appeal decisions involving its own prior rulings as either the Board of Liquor License Commissioners or the administrative agency in charge of approving conditional uses.”

There is a crucial distinction between the City of Annapolis as a municipal corporation and the Mayor and Aldermen as a local zoning authority and a liquor license board. The Court of Appeals explained the difference in the case of Mayor of Baltimore v. Borinsky, 239 Md. 611, 615-16, 212 A.2d 508, 510-11 (1964):

"The Board is an administrative body which has no official interest in the matters which come before it other than to decide them according to the law and the proved facts....
"The City, however, is clearly a proper party in these proceedings. The zoning ordinance is an exercise of the City’s police power.... The City has a legitimate interest in the effectuation of its policies.”

This distinction appeared earlier in the leading case of Board of Zoning Appeals v. McKinney, 174 Md. 551, 562, 199 A. 540, 545 (1938), wherein the Court of Appeals held that a zoning board had no power to engage in litigation involving its own decisions but also pointed out that: "apart from statute, the general rule is that a municipality has the same right to appeal as any other litigant.” Id. (Emphasis added.)

We believe the distinction between the City qua municipal corporation and the Mayor and Aldermen qua administrative agency is applicable to both the conditional use and liquor license appeals. Zoning matters and the regulation of alcoholic beverages are encompassed by the City’s police power. While the Mayor and Aldermen have no interest sufficient to give them standing in their administrative roles, Board of Liquor License Commissioners v. Leone, 249 Md. 263, 239 A.2d 82 (1968); Board of Zoning Appeals v. McKinney, supra, 174 Md. at 562, 199 A. at 545, the same considerations do not apply to the standing of the City as a municipal corporation. Because of its "legitimate interest in the effectuation of its policies” the City was a proper intervenor in the circuit court proceedings, and therefore, it has standing to appeal both cases to this Court in the same manner as the individual intervenors.

II. Resolution of the Variance in the Liquor License Appeal

The variance between the decisions of Judge Sachse and Judge Williams relates to whether or not the statutory thirty day period under Md. Ann. Code, art. 2B, § 175 (e) (3) (1976) is automatically extended merely by a court order permitting a party to intervene and participate in the proceedings. Judge Sachse held that a specific and express order of extension based on a finding of good cause was required under § 175 (e) (3). Judge Williams, on the other hand, felt that the statutory period could be extended without a specific order to that effect.

In the leading case under § 175 (e) (3), Judge Hammond, for the Court of Appeals, spoke of the thirty day period in jurisdictional terms:

"We think the restriction on the court’s right to act after thirty days is not modal but is so interwoven with the special authority granted the court as to be a part of it, a limitation on its powers. We read the statute as if it said in terms to the Courts: 'You have thirty days to decide the appeal — or as much longer as you have, within the thirty days, extended the time. If you fail to act within the stated time, the authority given in the first instance to decide or act in the case is automatically withdrawn and you have no further power whatever in the matter.’ ”

Scherr v. Braun, 211 Md. 553, 566, 128 A.2d 388, 394 (1957). See also Pearce v. Board of Liquor License Commissioners, 228 Md. 515, 520-521, 180 A.2d 651, 653-54 (1962). Of course, the narrow question presented here is: what is the precise action that must be taken by the circuit court in order to extend the time and preserve its jurisdiction under § 175 (e) (3)?

The statute provides that an affirmance of the liquor board’s decision is automatic after thirty days "unless the time has been extended for good cause shown.” It thus appears incumbent upon the parties appealing to the circuit court (the Priolas in the instant case) either to obtain, within thirty days, a decision on the merits or an order, premised upon good cause, extending the time for review. Indeed, this is the procedure that the Court of Appeals envisioned back in 1957:

"For good cause shown, any judge of the court to which the appeal has been taken may extend the time for the determination of the case. In this way, the court has full control of the matter. It can meet any practicality that may arise. True, the obligation is cast upon the parties to make sure that the court in due time either decides the case or passes the proper order of extension. Such an order must be passed within a prescribed period or be ineffective. This is not an unusual requirement.”

Scherr v. Braun, supra, 211 Md. at 564-65, 128 A.2d at 393. (Emphasis added.) We further note that in both Scherr and Pearce intervention had been permitted during the thirty day period. See Scherr v. Braun, supra, 211 Md. at 558, 128 A.2d at 389; Pearce v. Board of Liquor License Commissioners, supra, 228 Md. at 518, 180 A.2d at 652. In both cases it was recognized that the circuit court lost its jurisdiction over the liquor license appeal because an order of extension was not passed during the thirty day period.

In the instant case, no specific order of extension was sought or granted within thirty days of July 10, 1978, the date on which the record was filed with the circuit court. Therefore, by virtue of § 175 (e) (3), the decision of the Board of Liquor License Commissioners for the City of Annapolis denying the Priolas’ application was automatically affirmed, and the court should have granted the City’s timely motion to dismiss that aspect of the consolidated appeal. We resolve the variance in the point of law in favor of Judge Sachse’s view expressed in Lederherg, supra, and hold, therefore, that the circuit court erred in the instant case when it denied the City’s motion. The judgment of the circuit court granting the liquor license to the Priolas in Law No. D-2702 must be reversed.

III. The Merits of the Conditional Use Appeal

As previously noted, the Priolas were required to obtain both a Class B "Beer and Light Wine License” and a conditional use permit in order to be able to sell beer and wine on the Villa Romana premises. Pursuant to Annapolis City Code, § 22-29 (1969, as amended), the Priolas’ application for a conditional use permit was reviewed by the Annapolis Planning and Zoning Commission which recommended that it be denied because of a "saturation of restaurants serving alcoholic beverages in the downtown area. ...” In addition, the commission found that the proposed conditional use would "be detrimental to or endanger the public health, safety, morals, convenience, or general welfare;” would "be injurious to the use and enjoyment of other property;..and would "impede the normal and orderly development and improvement of the surrounding property....”

After the April 17,1978 public hearing during which both the liquor license and conditional use applications were considered, the Mayor and Aldermen agreed with the commission’s findings, and further stated that "property values would be depressed as the dispensing of alcoholic beverages would have an adverse effect and impact on the small residential homes nearby,” and that the "establishment of the conditional use for alcoholic beverages will subtract from the already established neighborhood and will have, in effect, a devastating impact.”

The circuit court in reversing the decision of the Mayor and Aldermen, ruled first that "the sole issue in these consolidated cases is the liquor license.” Starting with that premise, the court found that "there was presented no evidence that pinpointed, zeroed in on the issue of the license itself.” Finally, the court held the Mayor and Aldermen decision to be "arbitrary and unreasonable” because they reached "conclusions unsupported by competent evidence, hard or soft.”

When a decision of a zoning authority is appealed to the circuit court, the authority’s decision will be upheld if it is, in the language of our Maryland cases, "fairly debatable.” Sedney v. Lloyd, 44 Md. App, 633, 410 A.2d 616, 819 (1980). As this Court recently indicated:

"A reviewing court, at either the circuit level or the appellate level, will not substitute its judgment for that of the board whan the board is acting in its discretionary range. The granting or denying of a special exception will be affirmed unless the action of the board is shown to be arbitrary, capricious or illegal.”

B. P. Oil, Inc. v. County Board of Appeals, 42 Md. App. 576, 577, 401 A.2d 1054, 1055 (1979); see also McLean v. Soley, 270 Md. 208, 215-16, 310 A.2d 783, 787-88 (1973).

Our review of the record discloses that the circuit court, sitting as a reviewing court, overstepped its bounds and intruded upon the discretion vested by law in the Mayor and Aldermen of Annapolis. Despite apparent similarities, it is essential that the liquor license and zoning aspects of the case be segregated. They are controlled by different statutory sections, have separate procedural and substantive provisions, and basically serve disparate purposes. That they tended to coalesce in this case does not permit a court, on review, to blur all distinctions whatsoever.

Under the Annapolis City Code, the planning and zoning commission cannot favorably recommend a conditional use unless the use meets the criteria delineated in the ordinance. In the instant case the commission was unable to so find, and accordingly, it recommended against granting the Friólas’ conditional use application. The Mayor and Aldermen relied on the commission’s recommendation and made similar, but expanded, findings in accordance with the criteria set out in the zoning ordinance. The circuit court, in reviewing those findings, ignored the existing distinctions between liquor license and zoning proceedings. As noted above, our cases make clear that the decisions of a zoning authority are to be judged by the "fairly debatable” rule. It is nowhere evident in its decision that the lower court ever evaluated the conditional use appeal under that standard.

In evaluating the Priolas’ application, both the planning commission and the Mayor and Aldermen looked at the operation of the restaurant as it then existed, compared to the operation of the restaurant as it would exist with a Class B license. Upon such a review, the Mayor and Aldermen considered the diverse criteria set out in the zoning ordinance for conditional uses, as they were bound to do by the ordinance. They had before them the adverse report of the planning and zoning commission which contained evidence that there was no need in the area for an additional restaurant selling beer and wine. They also were presented with the testimony of the opponents which, while largely directed in opposition to any restaurant on the site, also served to provide a basis for the finding that a busier restaurant, i.e., one attracting greater numbers of customers because of beer and wine sales, would be detrimental to the surrounding residential community. Of course, the Priolas introduced evidence in support of their application. In sum, there was supporting evidence on each side of the issue, and it was the duty of the Mayor and Aldermen to make the final decision according to that evidence under the standards enunciated in the ordinance.

While the Priolas presented a strong case in favor of the conditional use, we do not believe that their evidence was such as to compel the granting of the permit. Cf. B. P. Oil, Inc. v. County Board of Appeals, 42 Md. App. at 579-80, 401 A.2d at 1056. There is a distinction between evidence which compels a certain result and that which merely permits it. We believe that the evidence before the Mayor and Aldermen was of the latter quantity and quality. In support of their decision denying the conditional use application, the Mayor and Aldermen had before them the commission’s findings and recommendations, the testimony of the opponents relating to the impact of the restaurant on the neighborhood, and evidence that the restaurant’s business volume and impact would increase if the conditional use were permitted. While the Priolas’ evidence would certainly have supported the granting of a conditional use, we are reminded of Judge Moylan’s words in B. P. Oil:

"There is frequently such a middle ground wherein it is neither arbitrary, capricious or illegal to say, 'Yes,’ nor arbitrary, capricious or illegal to say, 'No’. The decision here was ' in that discretionary range of the Board and was not compelled either way as a matter of law.”

B. P. Oil, Inc. v. County Board of Appeals, supra, 42 Md. App. at 580, 401 A.2d at 1056. We view the evidence in the instant case in the same light, and therefore, it was error for the circuit court to reverse the decision of the Mayor and Aldermen as a matter of law. See Zengerle v. Board of County Commissioners, 262 Md. 1, 17-18, 276 A.2d 646, 654 (1971). Cf. Anderson v. Sawyer, 23 Md. App. 612, 625, 329 A.2d 716, 724-25 (1974) (more than a scintilla of evidence is required to make an issue fairly debatable).

Judgments reversed; cause remanded to the Circuit Court for Anne Arundel County with instructions to dismiss the appeal in Law No. D-2702 and to affirm the decision of the Mayor and Aldermen of the City of Annapolis in Law No. D-2703; costs to be paid by the appellees.

      . The restaurant is located in a C2 (Conservation Business District) zone. At the time, in early 1978, a restaurant was a permitted use in a C2 zone; however, the sale of alcoholic beverages in a C2 zone required not only the appropriate liquor license but also a conditional use permit. We are informed that presently all restaurants are now conditional uses in a C2 zone by recent amendment to the City Code. Annapolis City Code 8 22-175 (i) (1969, as amended.)

      . In Annapolis, the "mayor, counsellor, and aldermen” are designated to act as the Board of Liquor License Commissioners for the City; the corresponding Anne Arundel County Board is without jurisdiction in the city. Md. Ann. Code, art. 2B, § 152 (1976).
      The Mayor and Aldermen, as the local legislative body, also possess the zoning authority in the city as delegated to them by the General Assembly. Md. Ann. Code, art. 66B, § 4.01 (1978).

      . In a report to the Mayor and Aldermen, dated April 14, 1978, the Annapolis Planning and Zoning Commission had recommended that the application for a conditional use permit be denied because "there exists a saturation of restaurants serving alcoholic beverages in the downtown area and ... this problem should not be compounded.” The commission also stated that if the permit were granted eight conditions on the use should be imposed by the Mayor and Aldermen.

      . The complete section reads:

        Finality of appeal. — The decision of the court thus given shall be final and effective at once. No further appeal shall lie nor shall there be any other remedy by which the local board’s decision may be reviewed in court, either by way of mandamus, injunction, certiorari or otherwise. However, if any judge of the circuit court of any county, or the Baltimore City Court, shall in any ease ñnally decide a point of law at variance with any decision previously rendered by any other judge of the State on the same question, an appeal may be taken from the decision rendered to the Court of Special Appeals. Any such appeal shall not stay the action of the lower court. The Court of Special Appeals shall only decide the question of law involved in such an appeal and shall not pass upon any question of fact. (Emphasis added.)

      . The City’s motion to dismiss was filed on August 28,1978, which was within the thirty days from August 8th given by the court for the filing of an answer, but subsequent to the statutory thirty day period running from the filing of the record on July 10th.

      . After Judge Williams’ decision, Judge Nathaniel W. Hopper denied a motion to dismiss filed by Mr. Jabine and Mrs. Stevens. Judge Curley, in his opinion and order from which this appeal is taken, stated: "This Court declines to reverse Judge Williams and, therefore, again denies the motions to dismiss.”

      . It is necessary that the variance be shown in the record in order for an appellant to invoke this Court’s jurisdiction under § 175 (f). Here, the opinions of Judge Sachse in Lederberg and of Judge Williams’ in the instant case are contained in the record, and are printed in the record extract. This is sufficient to satisfy the requirements of § 175 (f). Gianforte v. Bd. of License Comm’rs, 190 Md. 492, 58 A.2d 902 (1948) (copies of conflicting opinions in record properly presents question for appellate review); Scherr v. Braun, 211 Md. 553, 128 A.2d 388 (1957). See Suttleman v. Bd. of Liquor License Comm’rs, 209 Md. 134, 120 A.2d 388 (1956); Good Citizens Community Protective Ass’n v. Bd. of Liquor License Comm’rs, 217 Md. 129, 141 A.2d 744 (1958).

      . Those who may initiate an appeal to the circuit court from a decision of the board of liquor license commissioners are limited to "[alny licensee or applicant for a license, or any group of not less than ten persons who are residents or real estate owners in the precinct or voting district....” Md. Ann. Code, art. 2B, § 175 (b) (1) (1979 Cum. Supp.). It is apparent from this section that Mr. Jabine and Mrs. Stevens, by themselves, could not have initiated the appeal to the circuit court, but we do not read the section as creating a barrier to their intervention as interested parties in an appeal properly taken by a licensee, applicant, or qualified group of ten persons.

      . We recognize that intervention alone is not sufficient to give a litigant standing to appeal from the circuit court; an interest, adversely affected by the court’s decision, must also be shown. Kreatchman v. Ramsburg, 224 Md. 209,217,167 A.2d 345, 349 (1961); Brashears v. Lindenbaum, 189 Md. 619, 628, 56 A.2d 844, 849 (1948). Mr. Jabine and Mrs. Stevens have demonstrated that interest by virtue of their status as affected property owners.

      . There is dictum in the case of Brashears v. Lindenbaum, supra, 189 Md. at 628, 56 A.2d at 849, which can be read to indicate that only the applicant or the requisite group of ten or more property owners may take an appeal to this Court from the circuit court in a liquor license case. However, the Court of Appeals actually dismissed the appeal in Brashears because the ten appellants had not intervened in the circuit court and because their interest did not appear on the face of the record. Id. at 628-29, 56 A.2d at 849. Moreover, the dictum stemmed from a concession made by the parties themselves and not from a holding of the Court of Appeals. In any event, it is our view that Md. Ann. Code, art. 2B, § 175 (f) (1979 Cum. Supp.), and not § 175 (b) (1), controls appeals to this Court.

      . When the liquor license board’s decision is appealed to the circuit court "the local board or the local licensing official involved may be represented by some qualified attorney designated for such service by said board or official.” Md. Ann. Code, art. 2B, § 175 (e) (2) (1976). The limited right given to the board to participate in the circuit court proceedings does not automatically make the board a party to the appeal; it merely allows the board’s views to be presented at the hearing in the circuit court. See Bd. of Liquor License Comm’rs. v. Leone, 249 Md. 263, 269, 239 A.2d 82, 86 (1968); Mayor of Annapolis v. Hartge, 38 Md. App. 629, 632, 382 A.2d 345, 347 (1978). Moreover, the statutory provision does not apply to the City which must, in our opinion, intervene in a liquor license appeal in the same manner as any other potential intervenor.
      Although the City in its motion to intervene did not clearly recognize the dual capacities served by the Mayor and Aldermen, it sought intervention in both appeals and alleged its interest therein. The motion states, in part:
      "The Mayor and Aldermen of The City of Annapolis is [sic] necessarily and properly interested in and concerned with the proper resolution of said issues and questions and should be allowed to intervene and participate in the appeals, as consolidated.”

      . McKinney recognized the municipal interest in zoning matters by virtue of its police power interest over the subject matter. 174 Md. at 562, 199 A. at 545. See Mayor of Baltimore v. Borinsky, supra, 239 Md. 616, 212 A.2d at 511. Such considerations apply as well to municipal regulations concerning the sale and use of alcoholic beverages. In maintaining control over the granting of liquor licenses, the City is exercising the police powers delegated to it by the General Assembly. Fowler v. Harris, 174 Md. 398, 402, 200 A. 825, 826 (1938) (alcoholic beverage control is "a police regulation of a trade or occupation in which there is a public interest----”); Benesch v. State, 129 Md. 505, 513-16, 99 A. 702, 705-6 (1916) (liquor regulation is valid exercise of police power). See also Mayhue’s Super Liquor Store, Inc. v. Meicklejohn, 426 F.2d 142, 147 (5th Cir. 1970) (recognition of validity of police power control over liquor business).

      . During the proceedings below the City attempted to participate both as a municipal corporation and an administrative agency. The City’s answers to the Priolas’ petitions of appeal refer to "The Mayor and Aldermen of the City of Annapolis, a municipal corporation, in its capacity as the Board of Liquor License Commissioners for the City of Annapolis” and to "The Mayor and Aldermen of the City of Annapolis, a municipal corporation, Intervening Defendant.” Additionally, the City’s Order for Appeal to this Court provides:
      "Please enter an appeal on behalf of The Mayor and The City of Annapolis, a municipal corporation, and on behalf of The Mayor and Aldermen of The City of Annapolis, in its capacity as the Board of Liquor License Commissioners for the City of Annapolis, Intervening Defendant, to the Court of Special Appeals of Maryland, from the Memorandum Opinion and Order of the Circuit Court for Anne Arundel County, dated May 9, 1979, and from the Supplemental Revisory Memorandum and Order of the Circuit Court for Anne Arundel County, dated May 17, 1979.” (Emphasis added.)
      As recognized in Mayor of Baltimore v. Borinsky, supra, 239 Md. at 615-16, 212 A.2d at 510, the board’s attempted participation as a party is clearly without legal authority. However, the City qua municipal corporation stands on different legal ground, as we indicate in the text. The City’s attempt to participate both as a municipal corporation and an administrative agency does not denigrate the City’s legitimate interest as a municipal corporation. Nor is the City’s interest affected by the happenstance that the Mayor and Aldermen constitute the governing body of the municipal corporation, the board of liquor license commissioners, and the local zoning authority. This fortuity in no way impairs the City’s police power interest sufficient to accord it standing to intervene as a party in the proceedings.

      . Our position here is entirely consistent with our prior case of Mayor of Annapolis v. Hartge, 38 Md. App. 629, 382 A.2d 345 (1978). There, the City attempted to appeal on general jurisdictional grounds without alleging a variance as required by Md. Ann. Code, at 2B § 175 (f) (1979 Cum. SuppJ. Moreover, the City never intervened in the circuit court proceedings and thus was not a proper party entitled to appeal. Brashears v. Lindenbaum, 189 Md. 619, 628, 56 A.2d 844, 849 (1948) (normally, intervention by a non-party is an absolute predicate to appeal, unless an adversely affected direct interest is clearly shown on the face of the record).

      . The authority and procedure for the issuance of a liquor license is set out in Md. Ann. Code, art. 2B (1976,1979 Cum. Supp.) and. Annapolis City Code, §§ 14-4 to 14-18.1 (1969, as amended). Zoning and all related matters are controlled by Md. Ann. Code, art. 66B (1978, 1979 Cum. Supp.) and Annapolis City Code, §§ 22-1 to 22-245 (1969, as amended).

      . The City Code reads, in part:
      "No conditional use shall be recommended by the planning and zoning commission unless such commission shall find that:
      (1) The establishment, maintenance or operation of the conditional use will not be detrimental to or endanger the public health, safety, morals, convenience or general welfare.
      (2) The conditional use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor substantially diminish and impair property values within the neighborhood.
      (3) The establishment of the conditional use will not impede the normal and orderly development and improvement of the surrounding property for use permitted in the district.
      (4) Adequate utilities, access roads, drainage and/or necessary facilities have been or are being provided.
      (5) Adequate measures have been or will be taken to provide ingress and egress so designed as to minimize traffic congestion in the public streets.
      (6) The conditional use shall, in all other respects, conform to the applicable regulations of the district in which it is located, except as such regulations may, in each instance, be modified by the mayor and aldermen pursuant to the recommendations of the planning and zoning commission.
      (7) In the case of food service establishments, the following additional standards for review shall apply.
      The review of the proposed food service operation shall be based upon an analysis of the proposed use’s impact in the following problem areas:

        Environmental:

      Noise: Including the noise of the mechanical equipment and of the patrons while on the premises.
      Odors: Control of odors from the cooking process and from the storage of garbage.
      Trash and litter: The type of trash and garbage the food service operation will generate. The precautions to be taken to prevent littering of the streets.

        Traffic:

      Streets: Adequacy of the street system to handle additional traffic.
      Loading/unloading: Off-street loading facilities available and adequate to handle the intensity and the type of trucks needed to service the proposed use. If on-street loading facilities are used, whether such use will impede traffic flow.
      Parking: Adequate parking available either on-site or within the area for employees and patrons.

        Neighborhood:

      Hours: The hours of operation are compatible with the surrounding commercial and/or residential neighborhood.
      Loitering: The measures the restaurant will employ to discourage loitering. Whether the type of use is compatible with the surrounding commercial and residential neighborhood.

        Adequacy of public facilities:

      Water and sewer: Excess capacity exists and is available
      Police: Police coverage is available.
      Fire: The fire department has access to the site. Sufficient water pressure for fire-fighting purposes is available and the building meets life safety standards.

        Community need:

      A community need for the use has been established.”
      Annapolis City Code, § 22-29 (e) (1969, as amended).

      . The authority of a reviewing court on appeal from a decision of a zoning authority is strictly limited, and the court may not substitute its judgment for that of the zoning authority. Sedney v. Lloyd, 44 Md. App. 633, 410 A.2d 616, 619 (1980). In reviewing the zoning authority’s decision, the court must consider all of the evidence in the administrative record, id.; see also Mayor of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 394-98, 396 A.2d 1080, 1087-89 (1979). The reviewing court’s role, however, is confined to determining the legality of the procedure employed and whether the decision was fairly debatable in light of the evidence adduced before the zoning authority. Entzian v. Prince George’s County, 32 Md. App. 256, 257-58, 360 A.2d 6, 8 (1976).

      . According to the City Code, the commission’s recommendation "shall be placed in evidence” at the hearing before the Mayor and Aldermen. Annapolis City Code, § 22-29 (f) (1969, as amended).


author: Melvin, J.,

text:
    BENJAMIN FRANKLIN DISHMAN v. STATE OF MARYLAND
    [No. 699,
    September Term, 1979.]

      Decided April 10, 1980.

    The cause was submitted on briefs to Morton, Melvin and Liss, JJ.
    Submitted by Gerald A. Kroop for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Bonnie A. Travieso, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and John Prevas, Assistant State’s Attorney for Baltimore City, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

On December 11, 1978, pursuant to a plea bargain with the State’s Attorney’s Office of Baltimore City, the appellant, Benjamin Franklin Dishman, entered guilty pleas to two counts of larceny and two counts of receiving stolen goods contained in four separate criminal informations filed against him. In return for the guilty pleas, the State agreed to recommend a total sentence not to exceed ten years. After verdicts of guilty were rendered by the Criminal Court of Baltimore, sentence was deferred pending a pre-sentence report.

At the subsequent sentencing hearing, defense counsel asked the court if he could "address the Court in mitigation at this time concerning the sentence.” Upon receiving an affirmative response, defense counsel addressed the court at length on appellant’s behalf. In addition, defense counsel called appellant’s employer to testify in his behalf. Defense counsel then again addressed the court urging that a ten year sentence be imposed but that all but 18 months be suspended and the appellant be permitted to serve the 18 months at the Baltimore City Jail so that he could be put on the "work release program.”

After stating that he was taking into consideration "everything” defense counsel had said, the employer’s testimony, the pre-sentence report, and the appellant’s "extensive history with the judicial system,” the judge imposed a total sentence of ten years, "three years of which is to be served and seven years of which is suspended, and he will be on probation to the Department of Parole and Probation for a period of five years.” Court costs were suspended. Defense counsel thanked the judge and said, "I think it is an effort by the Court to find some medium ground that will balance out.” At counsel’s further urging, the judge announced that it would "recommend” that the appellant serve the three years at the Baltimore City Jail. The proceedings were concluded with counsel’s advice to the appellant concerning his right to appeal to the Court of Special Appeals, his right to petition the sentencing judge within 90 days for reconsideration or modification of the sentence, and his right to sentence review by a three-judge panel.

The appellant did not seek reconsideration or modification of his sentence by the sentencing judge. Nor did he seek a three-judge sentence review. He did, however, enter a timely appeal to this Court in which his sole complaint is that "the trial judge failed to provide the appellant his right to allocution pursuant to Maryland Rule 772 [(d)].”

Maryland Rule 772 d became effective July 1, 1977 and provides as follows:

"d. Allocution.
Before imposing sentence the court shall inform the defendant that he has the right, personally and through counsel, to make a statement and to present information in mitigation of punishment, and the court shall afford an opportunity to exercise this right.” (Emphasis added).

Former Rule 761 a provided:

"Sentence shall be imposed without unreasonable delay. Before imposing sentence the court shall afford an accused or his counsel an opportunity to make a statement and to present information in mitigation of punishment.” (Emphasis added).

It can thus be seen that whereas the former Rule seemed to permit the court to allow but one exercise of the right of allocution — either by the defendant or his counsel, the current Rule clearly requires that both have the opportunity to make a statement and present mitigating evidence. The word "and” has replaced the word "or” in this regard. Of particular relevance here, the new Rule also requires not only an opportunity for allocution but that the court inform the defendant that he has that right.

In Green v. United States, 365 U.S. 301, 81 S. Ct. 653 (1961), rehearing denied, 365 U.S. 890, 81 S. Ct. 1024 (1961), the Supreme Court discussed Rule 32(a) of the Federal Rules of Criminal Procedure, 18 U.S.C. A. At that time the Federal Rule, in pertinent part, provided:

"Before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment.”

Speaking for eight of the nine justices on the point, Mr. Justice Frankfurter rejected the Government’s contention that merely affording defendant’s counsel the opportunity to speak in mitigation of punishment satisfies the mandates of the Rule. The Court said, at 365 U.S. 304, 81 S. Ct. 655:

"The design of Rule 32(a) did not begin with its promulgation; its legal provenance was the common-law right of allocution. As early as 1689, it was recognized that the court’s failure to ask the defendant if he had anything to say before sentence was imposed required reversal. See Anonymous, 3 Mod. 265, 266, 87 Eng. Repl. 175 (K.B.). Taken in the context of its history, there can be little doubt that the drafters of Rule 32(a) intended that the defendant be personally afforded the opportunity to speak before imposition of sentence. We are not unmindful of the relevant major changes that have evolved in criminal procedure since the seventeenth century — the sharp decrease in the number of crimes which were punishable by death, the right of the defendant to testify on his own behalf, and the right to counsel. But we see no reason why a procedural rule should be limited to the circumstances under which it arose if reasons for the right it protects remain. None of these modern innovations lessens the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation. The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself. We are buttressed in this conclusion by the fact that the Rule explicitly affords the defendant two rights: 'to make a statement in his own behalf,’ and 'to present any information in mitigation of punishment.’ We therefore reject the Government’s contention that merely affording defendant’s counsel the opportunity to speak fulfílls the dual role of Rule 32(a). See Taylor v. United States, 9 Cir., 1960, 285 F.2d 703. (Emphasis added).
... [T]o avoid litigation arising out of ambiguous records in order to determine whether the trial judge did address himself to the defendant personally, we think that the problem should be, as it readily can be, taken out of the realm of controversy. This is easily accomplished. Trial judges before sentencing should, as a matter of good judicial administration, unambiguously address themselves to the defendant. Hereafter trial judges should leave no room for doubt that the defendant has been issued a personal invitation to speak prior to sentencing.” (Emphasis added).

In Hill v. United States, 368 U.S. 424, 82 S. Ct. 468 (1962) the Supreme Court reaffirmed its view that Federal Rule 32 (a) "requires a district judge before imposing sentence to afford every convicted defendant an opportunity personally to speak in his own behalf. There thus remains no doubt as to what the Rule commands.” (Emphasis added).

Following the Green and Hill decisions the Federal Rule was amended in 1966 to write into the Rule the holdings of those two cases. The present Maryland Rule and Federal Rule are now substantially the same. Each rule requires the sentencing judge, before imposing sentence, to address the defendant personally to inform him of his right to speak in his own behalf and present information in mitigation of punishment.

At least since Green, the Supreme Court and the lower Federal courts have concluded that where a violation of Rule 32 (a) is found to have occurred, the proper course of action is to vacate the sentence and remand the case for resentencing. See Van Hook v. United States, 365 U.S. 609 (1961); U.S. v. Latimer, 548 F.2d 311 (10th Cir. 1977); United States v. Van Drunen, 501 F.2d 1393 (7th Cir. 1974), cert. den., 419 U.S. 1091; United States v. Gardner, 480 F.2d 929 (10th Cir. 1973), cert. den., 414 U.S. 977; United States v. Eads, 480 F.2d 131 (5th Cir. 1973).

We have no doubt that Maryland Rule 772 d is patterned in large part after current Federal Rule 32 (a), and that, in adopting it, the Court of Appeals was cognizant of and intended to apply in this State the concepts and procedures set forth in Green v. United States. The Rule is precise and unequivocal in that regard. It directs exactly what Mr. Justice Frankfurter suggested in Green, and we can find no compelling reason not to enforce it in the same way that the Federal Rule is enforced.

Quite apart from the Federal analogy, however, we note that the new requirement imposed upon the court — to advise the defendant personally of his right of allocution — is couched in the same mandatory language, and is of similar purpose, as Maryland Rules 731 and 735 d, pertaining respectively to the acceptance of guilty pleas and the waiver of a jury trial. It sets forth a procedure designed to protect an underlying right (albeit the right of allocution is a common law right and not a constitutional right. See Hill v. United States, supra) to assure that any waiver of it is a knowing and voluntary one. Such a requirement, though not mandating any particular litany, is nevertheless one of those "precise rubrics” intended to be more than merely a helpful guideline. It is meant to be followed in the same manner as Rules 731 c and 735 d. See Countess v. State, 286 Md. 444 (1979); Priet v. State, 45 Md. App. 1 (1980).

The Rule was not obeyed in this case. It is incumbent upon the court not only to follow the Rule, but to make certain that the record clearly reflects that it has done so. Trial judges, in the words of Mr. Justice Frankfurter, should "unambiguously address themselves to the defendant” and "leave no room for doubt that the defendant has been issued a personal invitation to speak prior to sentencing.” The appropriate remedy for noncompliance with this requirement is to vacate the sentences improperly imposed and remand the case for resentencing.

The State argues that when counsel allocutes on defendant’s behalf before sentence is pronounced, "it can be assumed that counsel also is aware of the defendant’s right to allocute individually, that he has informed defendant of that right, and that defendant has waived his right of allocution.” We are not so persuaded. If such assumptions could be made there would of course be no reason for the Rule. Nor are we persuaded by the State’s further argument that in view of defense counsel’s "eloquent address” to the sentencing judge, the failure to follow the Rule is "harmless error” — for as said by Mr. Justice Frankfurter, "The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.” Green v. United States, supra.

Conviction affirmed; sentence vacated; case remanded for resentencing pursuant to Maryland Rule 772 d.

Costs to be paid by Mayor and City Council of Baltimore.

      . See Notes of Advisory Committee on Rules, pertaining to the 1966 amendment. Federal Rule 32 (a) now provides:
      "Sentence shall be imposed without unreasonable delay. Before imposing sentence the court shall afford counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment. The attorney for the government shall have an equivalent opportunity to speak to the court.”

      . Compare United States v. Scallion, 533 F.2d 903 (5th Cir. 1976); United States v. Core, 532 F.2d 40 (7th Cir. 1976); United States v. Cardall, 550 F.2d 604 (10th Cir. 1976). In these cases, the Courts concluded either that the requirements of Rule 32(a) were not applicable or that there had been no violation of them. Except possibly for Scallion, which we are at a loss to explain in light of Green, the factual situation in those cases was quite different from what is before us, and we do not, therefore, regard those cases as apposite here.

      . See Wright v. State, 24 Md. App. 309, 316, 330 A.2d 482 (1975) and Brown v. State, 11 Md. App. 27, 31-32, 272 A.2d 659 (1971), where we held that former allocution Rule 761 a was also mandatory and, when not followed, the proper remedy in the appellate court is to "remand the case for resentencing with the proper formalities.”


text:
    JOAQUIM F. NAZARIO v. WASHINGTON ADVENTIST HOSPITAL, INC. et. al.
    [No. 799,
    September Term, 1979.]

      Decided April 10, 1980.

    The cause was argued before Morton, Thompson and Melvin, JJ.

      Robert C. Heeney, with whom were Heeney, Armstrong & Heeney on the brief, for appellant.

      Theodore B. Comblatt and Philip Sturman, with whom were S. Woods Bennett and Smith, Somerville & Case on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

The issue presented by this appeal is to what extent an insurance carrier, who has paid Workmen’s Compensation benefits, has a claim on proceeds from an employee’s medical malpractice settlement which arose out of the same injury.

On May 25, 1972, Joaquim F. Nazario, the appellant, injured his eye in the course of his employment. He was treated for the injury at Washington Adventist Hospital by Dr. A. J. Martin; a few days later he lost his eye by enucleation at Holy Cross Hospital. Nazario filed a Workmen’s Compensation claim in August, 1972 from which he received $25,605 to cover temporary total disability and permanent partial disability and $3,318.75 for medical expenses. These sums were paid by the insurer of his employer, the appellee, the American Casualty Company. Appellant brought an action for malpractice against Dr. Martin and the Washington Adventist Hospital. On August 3, 1977, judgments nisi were entered by consent of the parties in favor of appellant for Twenty-Five Thousand Dollars ($25,000) and jointly in favor of appellant and his wife for Twenty-Five Thousand Dollars ($25,000) for loss of consortium. In late July, 1977, the attorney for Washington Adventist Hospital called the American Casualty Company’s claim office in order to ascertain the amount of its compensation claim. On September 1, 1977, American Casualty Company filed a motion to intervene in the proceeding. Thereafter, the hospital’s insurer filed a bill of interpleader in the Circuit Court for Prince George’s County and deposited $25,000 in the registry of the court. At the interpleader hearing, Nazario testified that he had received no notice from American Casualty that he would have to reimburse them, and that he would not have accepted the $50,000 settlement had he known that American Casualty Company would take part of it. He said that he settled his suit because of the uncertainty of what a jury might do in this case. He admitted that his counsel in the malpractice case knew of his Workmen’s Compensation claim but did not represent him for that claim. He also said that he had no idea that the insurance company might have an interest in his malpractice case. Neither Nazario nor his counsel had notified American Casualty of the malpractice proceedings. American Casualty Company made no attempt to exercise its right pursuant to Art. 101, § 58 to sue the doctor or the hospital. The trial court, (Fisher, J.) found that American Casualty Company was entitled to recover $25,000, less attorney’s fees, court costs, and expenses. The parties have agreed as to these expense items and also that American Casualty Company is entitled to no part of the $25,000 settlement for the loss of consortium.

The appellant argues here that the insurance company is estopped from claiming any part of the proceeds of his suit because it did not intervene in the action until the settlement was already effectuated, and it failed to notify the appellant of its claim. Appellant claims that the settlement demand would have been higher to include the carrier’s claim if he had known of the claim. Equitable estoppel is applicable only where there is a duty imposed upon the party remaining silent to speak. Mason v. Dulaney, 144 Md. 108, 114, 124 A. 390 (1923). The statute imposes no duty on the insurance company to inform appellant that it would make a claim and the company did not know of any lack of knowledge in the appellant as to its rights, thus the estoppel argument fails.

Appellant’s second argument is that Art. 101, § 58 does not allow an insurance carrier to claim the malpractice proceeds. He argues that malpractice is an entirely separate and unrelated claim, and hence there is no right of subrogation. This question has not been decided in Maryland but it is universally held that a Workmen’s Compensation award includes any aggravation of an injury which may have occurred through a physician’s or hospital’s negligence. Larson, Workmen’s Compensation Law § 13.21 (1979). We see no reason Maryland should not follow the universal rule. Once it is determined that the aggravation caused by the physician and the hospital are compensable under the Workmen’s Compensation Act, the result herein is obvious. In pertinent part, Art. 101, § 58 says: "Where . . . compensation is payable ... under circumstances creating a legal liability in some person other than the employer. .. the employer [or] insurance company shall be reimbursed for the compensation already paid...”, etc. We so hold.

The appellant has referred us to cases in other jurisdictions. We, however, need not rely on them because our statute is susceptible of but one rational interpretation. Our holding is consisent with our holding in Brocker Manufacturing and Supply Co. v. Mashburn, 17 Md. App. 327, 301 A.2d 501 (1973) and with the language in Flood v. Merchants Insurance Co., 230 Md. 373, 378, 187 A.2d 320 (1963).

Decree affirmed.

Appellant to pay the costs.

      . Article 101, § 58 of the Annotated Code of Maryland sets forth the guidlines for actions against third parties in Workmen’s Compensation cases. This section provides in pertinent part:
      "Where injury or death for which compensation is payable under this Article was caused under circumstances creating a legal liability in some person other than the employer ... the employee ... may proceed ... against that other person to recover damages or against the employer for compensation under this article, or in case of joint tort-feasors against both; and if compensation is claimed and awarded or paid under this article, any employer, ... may enforce for their benefit, ... the liability of such other person; provided, however, if damages are recovered in excess of the compensation . .. such excess shall be paid to the injured employee .... If any such employer, insurance company ... shall not, within two months from the passage of the award of this Commission, start proceedings to enforce the liability of such other person, the injured employee, ... may enforce the liability of such other person, ... and the employer, insurance company, . . . shall be reimbursed for the compensation already paid or awarded and any amount or amounts paid for medical or surgical services, ... or for any of the other purposes enumerated in § 36 of this article ,...’

      . Schulz v. Standard Acc. Ins. Co. v. Detroit, 125 F. Supp. 411 (D. Wash. 1954); Industrial Commission v. Standard Ins. Co., 149 Colo. 587, 370 P.2d 156 (1962); Travelers Ins. Co. v. Georgia Power Co., 51 Ga. App. 579, 181 S.E. 111 (1935); Powell v. Galloway, 229 Ky. 37, 16 S.W.2d 489 (1929) and Lakeside Bridge & Steel Co. v. Pugh, 206 Wis. 62, 238 N.W. 872 (1932).