MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2015 ME 97
Docket: Ken-14-286
Argued: May 12, 2015
Decided: July 30, 2015
Panel: MEAD, GORMAN, JABAR, and HJELM, JJ.
CHRISTINE V. VIOLETTE
v.
RANDY R. VIOLETTE
MEAD, J.
[¶1] Christine V. Violette appeals from a judgment of divorce entered in the
District Court (Waterville, Dow, J.). Christine contends that the court (1) clearly
erred in its calculation of Randy R. Violette’s income; (2) abused its discretion in
its spousal support award; (3) clearly erred in finding that two assets, a piece of
real estate and a business, were nonmarital; and (4) violated her fundamental right
to parent her children when it ordered the parties to discipline their children in a
specific fashion upon the occurrence of particular events. We vacate the portion of
the judgment that mandates specific disciplinary measures and affirm in all other
respects.
I. CASE HISTORY
[¶2] Christine and Randy were married on October 2, 1993, in Lewiston.
They have three children together: a seventeen-year-old son, a thirteen-year-old
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son, and a ten-year-old daughter. Christine filed a complaint for divorce on
November 9, 2012. At the final hearing on December 12, 2013, the court heard
evidence of the following facts relevant to this appeal.
[¶3] Separately or together, the parties own a total of six parcels of real
estate. All but one are encumbered by various debts. Only one parcel, located in
Sidney, is at issue on appeal. Prior to the parties’ marriage, Randy purchased the
parcel in Sidney and built a building there, which he rents to his own business,
Power Equipment Plus. Subsequent to the parties’ marriage, a storage building
was added to the Sidney parcel. The parties did not dispute that the property
currently has a value of $313,900, is encumbered by debts of $106,725 and $869,
and has a net value of $206,306. Christine offered and the court accepted a table
that states that on October 30, 2012, the Sidney property had two debts: “$130,000
as of [February 18, 1993]” and “$55,000 SBA mort” dated June 6, 1998. Randy
testified that the debts on the property are for nonpayment of taxes and one or more
loans. Christine did not testify or otherwise offer evidence explaining the notations
in her table regarding the debts.
[¶4] Power Equipment Plus is a Subchapter S Corporation, incorporated
before the marriage, and Randy owns 100 percent of the shares. During their
marriage, Randy and Christine worked together at the business. Each drew salaries
from the corporation. Randy testified that the current value of Power Equipment
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Plus is “no value,” and he introduced evidence that the business’s debts outweigh
its assets and that the company was taking a loss in recent years. Christine testified
that, at an unspecified time (“when the market wasn’t as good”), the couple began
using their home equity line of credit to support the business, first testifying that
the loan was used “strictly” for the business and then testifying that “half” of it was
used for the business. Power Equipment Plus, in turn, made payments on the home
equity loan. However, Christine did not testify to or offer evidence regarding the
alleged business practices or intermingling of personal and business funds that
would allow the court to make findings regarding specific monetary amounts
involved. Christine also testified that the business takes in more money than the
books reflect, but she offered no specific amounts or methodology that would
allow the court to impute additional income to the business.
[¶5] During the marriage, Randy borrowed over $200,000 from his parents.
One loan—for $100,000—was used to pay off a debt that was incurred by Randy
prior to the marriage as part of the Power Equipment Plus start-up process. The
remainder of the loan proceeds was used to support the family’s lifestyle.
[¶6] Neither party offered an expert witness on the complex financial issues
at stake in the dissolution of their marriage.1
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The court ordered the parties to have all of their property appraised or evaluated, and it ordered them
to borrow against their parcels of real estate if necessary to pay for the appraisals or evaluations. Randy
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[¶7] Randy testified and produced evidence that his income is
approximately $50,000 per year based on his salary at Power Equipment Plus and
some rental income he makes from the Sidney property and others. Christine
testified that Randy makes more than $50,000 per year because he makes some
unreported income through his business. She also asked the court to consider an
earlier case management order in the divorce action that ordered Randy to pay
expenses totaling more than $50,000 per year.
[¶8] When they were first married and the business was just getting started,
Christine worked a separate full-time job and helped at Power Equipment Plus in
the evenings. For years before their separation, however, the parties drew equal
annual salaries of $29,824.60 from their jobs at the business and, in addition, they
paid the majority of their household expenses through the business, including
clothing, utilities, tuition for private school, car expenses, health insurance, and
medical bills. Christine has Adult Stills Disease, which does not affect her ability
to work, but does cause her to incur expenses of $200 per month for medication
and $350 to $400 per month for health insurance under the Affordable Care Act.
Christine has a bachelor’s degree in marketing information systems and is
currently enrolled in a master’s program at Thomas College, which will take her
testified that he was not able to get a loan on any of the parcels, nor was he able to afford to pay for any
assessments himself.
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about two years to complete, and during which time she probably will be unable to
work except during summer breaks. She was not employed during the year
preceding the final hearing on December 12, 2013.
[¶9] The court heard extensive testimony about the family’s dynamics from
the guardian ad litem appointed to the case. The parties have very different
parenting styles, each with strengths and weaknesses. The guardian ad litem
testified that, while Randy can be overly harsh and blunt with the children,
Christine does not have “discipline standards where she can set a course of action
and [have] the children follow it.” Randy and the eldest child are estranged, and
the child expressed to the guardian ad litem a preference to never have visits with
Randy. The transfers of the two younger children from Christine to Randy for
visitation have been difficult, and on one occasion Christine called the Falmouth
Police Department for assistance because she was unable to compel the children to
get out of her car for a visit. The guardian ad litem testified that the parties would
need a “tight,” detailed order.
[¶10] The court entered a divorce judgment on May 21, 2014, granting the
parties a divorce on the grounds of irreconcilable marital differences. The court
ordered Randy to pay to Christine transitional spousal support in the amount of
$300 per week for 156 weeks, based on its findings that the parties were married
for nineteen years, one month, and seven days before the complaint was filed;
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Randy is forty-eight years old and Christine is forty-five years old; Christine
“holds a bachelor’s degree in the business field”; she “intends to complete a
master’s degree at Thomas College”; she will be required to obtain health
insurance after the divorce; she and Randy lived beyond their means during their
marriage and after their separation; and “Christine contributed to the family
substantially as a parent and homemaker” but “has the ability to become
self-supporting within three years by reducing her expenses, furthering her
education, and looking hard for work.” The court also ordered Randy to pay to
Christine child support in the amount of $275 per week for the three children. In
its attached and incorporated child support worksheet, the court listed Randy’s
annual gross income as $50,000, and Christine’s as $15,600. The court ordered
that Christine could claim all three children as her dependents for tax purposes.
[¶11] In its division of property, the court found that the real estate in
Sidney is Randy’s nonmarital property, and set it aside to him. In a table attached
to the judgment and incorporated therein, the property was listed as having a value
of $313,900 and debts of $106,725 and $869, with a net value of $206,306.
Further, the court found that Power Equipment Plus is Randy’s nonmarital
property and set it aside to him. In the table, Power Equipment Plus was recorded
as a “business interest” with a value of “0.” The court set aside the marital home
to Christine, subject to the property’s $98,512 home equity loan.
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[¶12] In its order of parental rights and responsibilities, the court found that,
although separately the parties are “strong parents,” the parties “are unable to
effectively share parental rights at this time” due to the “unusual degree of conflict
and strife between [the parties].” The court declined to “enter a special
‘no-contact’ schedule for [the oldest child and Randy],” finding that it was not in
the child’s or his siblings’ best interests “to allow him to simply opt out of the
family.” The court ordered:
When any of the children are scheduled to be with a parent and they
refuse to be with that parent, the other parent shall require the refusing
child to stay in his or her bedroom, and they may not have access to
the Internet, telephone, text messaging, television, or video games
during such time. Neither party shall dramatize the imposition of this
consequence of a child’s choice.
The court granted Christine primary residence of all three children, ordered the
parties to attend a high-conflict parenting course, and set out a detailed allocation
of parental rights and responsibilities and a visitation schedule.
[¶13] Subsequently, Christine filed a motion for further findings of fact and
conclusions of law, see M.R. Civ. P. 52(b), requesting further findings to support
the court’s spousal support award, its determination of Randy’s income, and its
“overall distribution of marital property.” On August 5, 2014, the court entered an
order making additional findings. The court stated that the judgment contained
adequate findings to support its spousal support order and that it had also
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considered in its award the fact that Christine would have the right to claim the
children on her tax returns. Regarding Randy’s income, the court stated that
Randy “provided evidence that his income will be $50,000 per year” and stated
that Christine’s evidence was insufficient for the court to conclude that Randy’s
income would be higher. Regarding the property division, the court stated that the
judgment contained adequate findings and that the distribution was just given that
the parties were in a difficult financial situation and the court had “exercise[d] its
discretion to distribute the difficulty fairly.” Christine appeals. See
M.R. App. P. 2(b)(1), (3); 14 M.R.S. § 1901(1) (2014).
II. LEGAL ANALYSIS
A. Randy’s Income
[¶14] Christine argues that the court clearly erred in finding that Randy’s
gross income would be $50,000 per year when “[t]he most competent evidence on
the record was not Randy’s” evidence but hers. She argues that the court abused
its discretion in its child support and spousal support awards by basing them on the
erroneous finding.
[¶15] We review factual findings for clear error, which exists only if “there
is no competent evidence in the record to support” the finding, the finding “is
based on a clear misapprehension by the trial court of the meaning of the
evidence,” or if “the force and effect of the evidence, taken as a total entity,
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rationally persuades to a certainty that the finding is so against the great
preponderance of the believable evidence that it does not represent the truth and
right of the case.” In re A.M., 2012 ME 118, ¶ 29, 55 A.3d 463 (quotation marks
omitted). “Factual findings should not be overturned in an appellate proceeding
simply because an alternative finding also finds support in the evidence. We defer
to the trial court’s determination of witnesses’ credibility and its resolution of
conflicts in testimony.” Gordon v. Cheskin, 2013 ME 113, ¶ 12, 82 A.3d 1221
(citation omitted) (quotation marks omitted).
[¶16] Although Christine testified that Randy’s income is higher than
$50,000 because his business takes in more money than he reports and because a
case management order by the court ordered him to pay expenses totaling more
than $50,000 per year, the court heard Randy testify that his income will be
$50,000, and it is the trial court’s province to make credibility determinations
between competing evidence. See id. Further, there is no indication that the court
misapprehended the evidence before it, nor does the record persuade us to a
certainty that the finding “does not represent the truth and right of the case.” See
In re A.M., 2012 ME 118, ¶ 29, 55 A.3d 463. Therefore, the court did not clearly
err by finding that Randy’s gross income was $50,000 per year, and did not abuse
its discretion by relying on that finding in its child support and spousal support
awards.
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B. Spousal Support
[¶17] Christine contends that the court abused its discretion in awarding the
spousal support that it did, arguing that it should have awarded a greater amount of
support for a longer term.
[¶18] We review an award of spousal support for an abuse of discretion.
Miliano v. Miliano, 2012 ME 100, ¶ 27, 50 A.3d 534. In a divorce action, a court
may, but is not required to, make an award of spousal support. See 19-A M.R.S.
§ 951-A(2) (2014). A court may award transitional spousal support “to provide for
a spouse’s transitional needs, including, but not limited to: (1) [s]hort-term needs
resulting from financial dislocations associated with the dissolution of the
marriage; or (2) [r]eentry or advancement in the work force, including, but not
limited to, physical or emotional rehabilitation services, vocational training and
education.” 19-A M.R.S. § 951-A(2)(B). In making an award of spousal support,
the court must consider a number of factors enumerated by statute. See
19-A M.R.S. § 951-A(5) (2014).
[¶19] Contrary to Christine’s contentions, the court did not abuse its
discretion by awarding transitional spousal support in the amount of $300 per week
for 156 weeks. The court’s findings reflect the factors it is required to consider,
see 19-A M.R.S. § 951-A(5)(A), (C)-(G), (I), (K), (N)-(O), (P)(2), and its findings
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were supported by competent evidence in the record, see In re A.M., 2012 ME 118,
¶ 29, 55 A.3d 463.
C. Property
[¶20] Christine argues that the court clearly erred by finding that the Sidney
real estate and Power Equipment Plus were Randy’s nonmarital property.
[¶21] “We review a court’s classification of property as marital or
nonmarital for clear error.” Miliano, 2012 ME 100, ¶ 15, 50 A.3d 534. In dividing
property in a divorce action, a court must first determine what property is marital
and what property is nonmarital, then set apart each party’s nonmarital property,
and finally divide the marital property as it deems just. 19-A M.R.S. § 953(1)
(2014); Miliano, 2012 ME 100, ¶ 14, 50 A.3d 534. Once a party makes a showing
that property was acquired before the marriage, absent evidence of a marital
component, the court is required to set the property aside as nonmarital. Miliano,
2012 ME 100, ¶ 16, 50 A.3d 534. However, if the other party shows that the
property has a marital component in a determinable amount, the burden shifts back
to the spouse claiming the property is nonmarital to show “what portion of the
property [is] nonmarital.” Williams v. Williams, 645 A.2d 1118, 1120 (Me. 1994);
Miliano, 2012 ME 100, ¶ 23, 50 A.3d 534.
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1. Sidney Real Estate
[¶22] Christine argues that the court clearly erred when it found that the
Sidney property was wholly nonmarital. She argues that the value of the marital
component of the property is equal to the amount by which the mortgage was
decreased during the marriage.
[¶23] When “a spouse obtains title to real property before the marriage, but
mortgage payments are made during the marriage, the property will include both
marital and nonmarital components.” Coppola v. Coppola, 2007 ME 147, ¶ 20,
938 A.2d 786 (quotation marks omitted); see also Williams, 645 A.2d at 1120
(reasoning that property is acquired as it is paid for).
[¶24] In this case, Randy undoubtedly met his burden of showing that he
purchased the Sidney property prior to the marriage. The burden then shifted to
Christine to show a marital component, which she contends on appeal is the
portion of the property acquired during marriage via mortgage payments.
Christine offered only a table, prepared by her, indicating that two debts on the
property were reduced during the marriage. The information contained in the table
was never admitted as substantive evidence either through testimony or a duly
admitted exhibit. Because Christine failed to put forth evidence that would allow
the court to find a specific amount of marital interest in an otherwise nonmarital
asset, she has failed to meet her burden of proof, and the court did not clearly err in
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finding that the Sidney property was wholly nonmarital. See Miliano,
2012 ME 100, ¶ 13, 50 A.3d 534 (noting that, when a court is presented with
insufficient evidence to meaningfully undertake the analysis required by
section 953(1), “the issue should be resolved against the party with the burden of
proof” (quotation marks omitted)).
2. Power Equipment Plus
[¶25] Christine argues that the court clearly erred when it found that Power
Equipment Plus was an entirely nonmarital asset because, she alleges, (1) the
company increased in value during the marriage, and (2) marital debts were
incurred to support the business.
[¶26] An increase in value of nonmarital property is marital if it resulted
“from the investment of marital funds . . . in the nonmarital property[,] . . . from
marital labor[,] . . . [or] from reinvested income and capital gain if either or both
spouses had a substantial active role during the marriage in managing, preserving
or improving the property.” 19-A M.R.S. § 953(2)(E) (2014). In addition,
property has marital and nonmarital components if both marital and nonmarital
funds were invested in it. Hedges v. Pitcher, 2008 ME 55, ¶ 8, 942 A.2d 1217
(“Employing this approach, known as the ‘source of funds’ rule, we regard[]
acquisition as an ongoing process through which some marital and some
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nonmarital funds might be invested in certain property, thereby rendering property
partially marital and partially nonmarital.”).
[¶27] Again turning to the shifting burdens, Randy has met his burden of
showing that he acquired Power Equipment Plus prior to the marriage by
incorporating it and owning all of the stock before he and Christine married. The
burden then shifted to Christine to show that some portion of this otherwise
nonmarital property is marital. The first way she sought to meet her burden was by
attempting to prove that the asset had increased in value over the course of the
marriage. However, Christine offered no evidence of the value of Power
Equipment Plus before or at the start of the marriage. Further, as to Power
Equipment Plus’s current value, the court’s finding that the asset is worth $0 is
supported by record evidence that the business’s debts outweigh its assets, as well
as evidence that Power Equipment Plus was losing money in recent years. See
Peters v. Peters, 1997 ME 134, ¶ 15 & n.5, 697 A.2d 1254 (concluding that the
record supported the trial court’s finding that a party’s share in a corporation had
no value when the corporation’s liabilities exceeded its assets).
[¶28] The second way that Christine sought to meet her burden was to show
that the parties invested marital funds in the asset. Christine testified to no specific
details regarding the money invested in the business from the home equity line of
credit, and the only evidence the court heard regarding the $100,000 loan Randy
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borrowed from his family was that he used it to pay off a premarital debt he owed
to his uncle. Therefore, Christine offered no competent evidence that would
permit the court to find that a quantifiable amount of marital funds was invested in
Power Equipment Plus, and thus the court did not clearly err by finding that the
asset was wholly nonmarital. See Miliano, 2012 ME 100, ¶ 13, 50 A.3d 534.
D. Parental Discipline
[¶29] Finally, Christine contends that the court violated her fundamental
right to parent her children when it ordered the parties to discipline their children if
and when they refuse to visit with one of their parents. See Troxel v. Granville,
530 U.S. 57, 65-66 (2000). However, we need not reach this constitutional
question because we conclude that the court’s attempt to fashion a creative solution
to this challenge exceeded the bounds of the court’s discretion in this portion of its
judgment.
[¶30] Trial courts issue parental rights and responsibilities orders pursuant
to 19-A M.R.S. § 1653 (2014). We review an award of parental rights and
responsibilities for an abuse of discretion. Grant v. Hamm, 2012 ME 79, ¶ 6,
48 A.3d 789. Our review of a court’s exercise of discretion requires us to consider
(1) whether factual findings, if any, are supported by the record
pursuant to the clear error standard; (2) whether the court understood
the law applicable to its exercise of discretion; and (3) given the facts
and applying the law, whether the court weighed the applicable facts
and made choices within the bounds of reasonableness.
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Charette v. Charette, 2013 ME 4, ¶ 7, 60 A.3d 1264 (alterations omitted)
(quotation marks omitted).
[¶31] Here, under the third prong of the abuse of discretion test, it cannot be
said that the court made choices within the bounds of reasonableness when it
ordered the parties to discipline their children in such a very specific and inflexible
fashion upon the occurrence of particular future events with no discretion left to
the parents in this case. Although we acknowledge the challenging nature of the
problem the court was attempting to address, we must conclude that the court’s
rigid order of isolation constitutes an abuse of discretion that we now vacate. In all
other respects, the judgment is affirmed.
The entry is:
The portion of the judgment that orders the parties
to discipline their children is vacated. In all other
respects, the judgment is affirmed.
On the briefs and at oral argument:
Elizabeth J. Scheffee, Esq., Givertz, Scheffee & Lavoie, PA,
Portland, for appellant Christine V. Violette
Kenneth P. Altshuler, Esq., Childs, Rundlett, Fifield &
Altshuler, LLC, Portland, for appellee Randy R. Violette
Waterville District Court docket number FM-2012-314
FOR CLERK REFERENCE ONLY