A Rule 54(b) Dilemma: Divorces Lacking "Finality" Due to Undismissed Counterclaims

Recent decisions of the Maine Law Court bring into sharp focus certain difficulties inherent in applying rules of civil procedure developed in the context of federal practice to a state law setting. In such instances, the rules must operate on certain types of litigation peculiar to state law, notably the entire field of domestic relations. In a field bearing the unique features and demands of domestic relations, it is not surprising that federally patterned rules raised problems not anticipated by their drafters. In the 1981 case of Parent v. Parent, the Maine Law Court, in customary observance of Rule 54(b) of the Maine Rules of Civil Procedure, dismissed an appeal from the Superior Court because of a pending counterclaim. Under that rule, patterned after Federal Rule of Civil Procedure 54(b), the court has no jurisdiction to entertain appeals from orders in multiple-party or multiple-claim litigation until the lower court enters judgment on all claims by and against all parties, absent special certification by the trial judge. In the meantime, any order by the trial court is subject to revision. Rule 54(b) dismissals have become commonplace in federal courts and in Maine, as well as in the many state courts that have adopted the federal rules in substantial part. The Parent decision gave this procedure a new twist. Because the action in question was an action for divorce and the pending counterclaim was an undismissed counterclaim for divorce, the court warned in a footnote that the faulty procedure "may mislead unsophisticated litigants into believing that they are in fact finally divorced before the entry of a final judgment and acting in reliance thereon to their detriment." In other words, the overlooked counterclaim apparently forestalled any divorce. Shortly after rendering its opinion, the court denied a motion for rehearing, although neither party had raised, briefed, or had an opportunity to argue the Rule 54(b) issue previously. Because counterclaims for divorce have become routine and many courts have routinely neglected to enter judgment on the losing party's claim and because parties make critical life decisions in reliance upon divorce decrees, the concern and fear generated by the Parent opinion have been considerable.