MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 98
Docket: Oxf-15-463
Submitted
On Briefs: April 21, 2016
Decided: July 7, 2016
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.
KATE T. (GOROSHIN) MCCARTHY
v.
IGOR GOROSHIN
HUMPHREY, J.
[¶1] Igor Goroshin appeals from a judgment of the District Court
(South Paris, L. Walker, J.) finding him in contempt for violating the 2011 divorce
judgment ending his marriage to Kate T. (Goroshin) McCarthy and denying his
motion to modify his child support obligation. Goroshin contends that the court
erred by (A) finding him in contempt for nonpayment of child support for 2011,
(B) finding him in contempt for nonpayment of child support for 2012, (C) finding
that he had not fully paid his child support obligations for 2013 and 2014,
(D) finding no substantial change in circumstances warranting a modification of
his child support obligation, (E) determining that he was obligated to sell the
marital home and split the proceeds, and (F) admitting a 2015 letter from an
insurance carrier to McCarthy regarding the carrier’s attempts to obtain paperwork
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from Goroshin in order to process McCarthy’s 2013 vehicular accident claim. We
vacate the judgment as to the court’s finding of contempt for nonpayment of child
support for 2012, but otherwise affirm.
I. BACKGROUND
[¶2] Goroshin and McCarthy, the parents of two minor children, were
divorced by judgment of a Family Law Magistrate (Carlson, M.) issued on
January 24, 2011. The court awarded primary residential care of the two children
to McCarthy, with Goroshin having rights of contact with the children at all
reasonable times; ordered Goroshin to pay McCarthy $182.40 per week in child
support, commencing on July 29, 2011; and ordered that the marital home “be
listed for sale, in a commercially reasonable manner. Pending the sale, [Goroshin]
will be responsible for the payment of the debt on this property. When sold, if any
profit remains, the parties will share it equally.”
[¶3] On June 18, 2014, McCarthy filed a motion for contempt alleging, inter
alia, that Goroshin had failed to pay child support as ordered and had failed to list
the marital property for sale. On June 25, 2014, Goroshin filed a motion to modify
the divorce judgment seeking to set a new contact schedule and to reduce child
support. On August 4, 2014, Goroshin moved for leave to amend his motion to
modify to include an assertion that there had been a substantial change in his
financial situation due to, among other things, a change in his employment status
3
since the divorce judgment. He was granted leave to amend, and McCarthy’s
contempt motion was heard together with his amended motion to modify on
March 5 and June 3, 2015.
[¶4] In an order dated August 19, 2015, the court (L. Walker, J.) denied
Goroshin’s amended motion to modify the divorce judgment and granted
McCarthy’s motion for contempt, in part. Relevant to this appeal, regarding the
amended motion to modify, the court found that there had not been a substantial
change in circumstances that would justify a reduction in Goroshin’s child support
obligation or a modification of parental rights. Goroshin contended that there had
been a substantial change in his earning capacity because of “his inability to
achieve his earnings forecast as a medical marijuana farmer,” but the court
concluded that his purported operating expenses were not substantiated and that
“[t]he basic arithmetic involved in [his] calculation of revenue per patient . . .
militates against a modification of his child support obligation.” The court found
that “there is a likelihood that within a year or so, [his marijuana] business will
generate income that exceeds the amount presently used to calculate child
support.” Finally, the court found that although Goroshin “declined continued
employment with [his previous employer] due to his strict refusal to take opioids to
manage pain resulting from orthopedic surgeries . . . no evidence was presented
regarding whether and to what extent . . . that pain limits [his] earning capacity.”
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[¶5] Regarding the motion for contempt, the court found that although
McCarthy had signed a quitclaim deed granting any interest she had in the marital
property1 to Goroshin in May 2013, this deed did not nullify the requirement in the
divorce judgment that the marital home be sold and the proceeds split. The court
concluded that Goroshin had not “been contemptuous in his failure to list the
property for sale,” but it ordered him to list the property in a commercially
reasonable manner within forty-five days or be found in contempt.
[¶6] The court did find Goroshin in contempt for nonpayment of child
support for 2011 and 2012. The court also found that he was in arrears for 2013
and 2014 despite his assertions that McCarthy had verbally agreed to accept $500
per month and the fact that he had paid this amount during those years. However,
the court concluded, in light of the parties’ alleged agreement to reduce Goroshin’s
child support obligation, that Goroshin had not “willfully violate[d]” the child
support order; it therefore did not find him in contempt for failing to pay the full
amount of child support for 2013 and 2014. Goroshin timely appealed to us.
1
Goroshin purchased the home during the marriage; even though the title was in his name only, the
court determined that the home was marital property.
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II. DISCUSSION
A. Child Support for 2011
[¶7] Goroshin contends that the court erred by finding that he was in arrears
for child support for 2011 and by finding him in contempt because McCarthy
waived her right to receive child support and because the parties cohabited during
that year. The court found that Goroshin’s “explanation[] regarding his 2011 . . .
arrearage[] [is] not persuasive” but did not specify which of Goroshin’s various
arguments it considered and rejected.2 However, because Goroshin did not move
for additional findings of fact and conclusions of law, we assume that the trial
court made all findings necessary to support its judgment, if those findings are
supported by the record. See Finucan v. Williams, 2013 ME 75, ¶ 16, 73 A.3d
1056.
[¶8] The court did not err by implicitly determining that McCarthy did not
waive the 2011 obligation. “Waiver is the voluntary and knowing relinquishment
of a right and may be shown by a course of conduct signifying a purpose not to
stand on a right, and leading, by a reasonable inference, to the conclusion that the
2
The court’s judgment found that Goroshin owed child support but did not, on its face, order
Goroshin to make payments or make specific findings regarding the amount owed. In other words,
McCarthy would still have to bring an action to collect child support if Goroshin continues to not pay the
arrears. Although the court was not required to order any specific form of relief, it would have been a
better practice for the court to have found the specific amount owed and to have ordered that Goroshin
meet his obligations by a certain date, as the court did with its order concerning the sale of the marital
home.
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right in question will not be insisted upon.” Dep’t of Human Servs. v. Bell, 1998
ME 123, ¶ 6, 711 A.2d 1292 (quotation marks omitted). When the trial court
determines that there is no waiver, we review any factual findings for clear error
and review de novo whether the facts are sufficient to constitute waiver. Dep’t of
Health & Human Servs. v. Pelletier, 2009 ME 11, ¶ 15, 964 A.2d 630.
[¶9] McCarthy’s December 2014 statement to the Department of Health and
Human Services, which was before the court, indicates her understanding that
Goroshin continued to owe her child support for 2011. In addition, any delay on
McCarthy’s part in seeking to collect the 2011 arrearage did not constitute waiver.
We have previously stated, albeit in the context of actions brought by the
Department, that even a multi-year delay is not sufficient to constitute waiver if a
party eventually seeks to collect on the obligation and did not indicate that he or
she is voluntarily and knowingly waiving the right to support. See id. ¶ 16; see
also Bell, 1998 ME 123, ¶ 6, 711 A.2d 1292 (“Mere delay in the bringing of an
action . . . does not support a reasonable inference that the party has voluntarily
and knowingly relinquished the right to act.” (quotation marks omitted)).
Furthermore, the court did not err by determining that the parties’ cohabitation in
2011 did not release Goroshin from his obligation to pay child support, in light of
the fact that the only specific evidence that Goroshin paid various family expenses
was his own testimony.
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[¶10] The court also did not err by finding Goroshin in contempt despite his
asserted belief that he was not obligated to pay child support for 2011. “A civil
contempt proceeding is a coercive, and therefore remedial, action brought to
benefit another party. The contemnor allegedly violated a court order directed
toward securing the rights of another party. The contempt proceeding is brought to
coerce compliance and to obtain for the other party the benefits of the court order.”
Wells v. State, 474 A.2d 846, 850 (Me. 1984). In a civil contempt proceeding
addressing an alleged failure to pay support for a period of time, the court must
determine, by clear and convincing evidence, whether a party did or did not
comply with a court order to pay support and, if the party did not comply, whether
he or she had the ability to comply. See M.R. Civ. P. 66(d)(2)(D).
[¶11] We review factual findings forming the basis of a court’s decision
regarding contempt for clear error and review the ultimate judgment of contempt
for an abuse of discretion. Lewin v. Skehan, 2012 ME 31, ¶ 18, 39 A.3d 58. A
factual finding “is clearly erroneous when there is no competent evidence in the
record to support it.” Id. Here, Goroshin does not dispute that there was a court
order in place that required him to pay child support for the latter half of 2011, that
he did not pay child support for that period, and that he had the ability to do so. He
contends, though, that even if McCarthy did not “waive” her right to receive child
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support, he reasonably believed that he was not obligated to pay child support for
2011.
[¶12] The person alleged to be in contempt has a “right to be heard in
defense and mitigation.” M.R. Civ. P. 66(d)(2)(D). However, given that the court
did not find Goroshin’s explanation for his failure to pay the support ordered
persuasive, the court did not abuse its discretion by finding Goroshin in contempt.
B. Child Support for 2012
[¶13] Goroshin also contends that the court erred by finding that he had not
fully paid child support for 2012 and that he was in contempt for nonpayment for
that year. The record demonstrates that the parties agreed that Goroshin had paid
child support for 2012, and no evidence was presented that Goroshin did not pay
for that year. The court erred by finding that he did not pay child support for 2012
and therefore erred by finding him in contempt for that period of time. For this
reason, we vacate the portion of the judgment finding Goroshin in contempt for
nonpayment for 2012.
C. Child Support for 2013 and 2014
[¶14] Goroshin next contends that the court erred by finding that he owed
child support for 2013 and 2014. He asserts that McCarthy verbally agreed to
reduce his child support obligation during this period, and that this agreement was
binding on the parties and constituted a waiver on her part. Given McCarthy’s
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testimony disputing the existence of a verbal agreement between the parties, the
court did not err by finding that the evidence of waiver “was not particularly
reliable.” And, for the reasons discussed above, see supra ¶¶ 8-9, the court did not
err by determining that any delay on McCarthy’s part in pursuing collection of the
arrearage did not constitute a waiver of the child support obligation.
D. Substantial Change in Circumstances
[¶15] Goroshin also contends that the court erred by finding that there was
no substantial change in circumstances warranting a modification of his child
support obligation. We review a finding that there was no substantial change in
circumstances for clear error. Jabar v. Jabar, 2006 ME 74, ¶ 13, 899 A.2d 796.
The trial court’s judgment concerning child support is entitled to substantial
deference. Holbrook v. Holbrook, 2009 ME 80, ¶ 13, 976 A.2d 990. The court
reasonably determined, based on the record evidence, that Goroshin’s marijuana
business could generate increased income in the near future; that his purported
overhead expenses were not substantiated; and that, despite medical issues that led
him to quit his previous job, he had a generally “unfettered ability to work.” For
these reasons, the court did not err by finding no substantial change in
circumstances warranting a modification of Goroshin’s child support obligation.
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E. Sale of Marital Home
[¶16] Goroshin also asserts that the trial court erred by concluding that he
was obligated to sell the marital home and split the proceeds, as directed by the
divorce judgment, based on the court’s determination that McCarthy’s quitclaim
deed did “not obviate or alter in any way the requirement set forth by the
[j]udgment.” The court’s conclusion regarding the effect of the deed on the
judgment is a legal determination that we review de novo. See Gray v. TD Bank,
N.A., 2012 ME 83, ¶ 10, 45 A.3d 735.
[¶17] We have established that when a divorce judgment requires the sale of
a marital home, it imposes an in personam obligation on the parties, and that this
legal obligation is not undone if only one party holds legal title to the property.
See Fitzgerald v. Trueworthy, 476 A.2d 183, 185-86 (Me. 1984); see also Estate of
Gordan, 2004 ME 23, ¶¶ 12-15, 842 A.2d 1270. Goroshin’s obligation was not
vitiated by McCarthy’s transfer to him of any rights she held in the marital
property. The language of the divorce judgment also demonstrates that the
obligation is not in any way contingent on who holds title to the marital home. The
judgment merely orders that the “property will be listed for sale [and] [w]hen sold,
if any profit remains, the parties will share it equally.” See Bonner v. Emerson,
2014 ME 135, ¶ 13, 105 A.3d 1023 (stating that a divorce judgment must be
enforced in accordance with the plain meaning of its language). We conclude that
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the court did not err by determining that Goroshin is still obligated to sell the
marital home and divide the proceeds pursuant to the terms of the divorce
judgment.3
F. Admission of Insurance Letter
[¶18] Lastly, Goroshin contends that the court erred by admitting a
February 26, 2015, letter from an insurance carrier to McCarthy. At the hearing,
McCarthy testified that she signed the quitclaim deed to the marital home because
Goroshin threatened to not transfer title to a truck he left in her possession, thereby
preventing her from obtaining insurance payments for an accident, if she did not
sign. In support of her contention that she was forced to sign the deed under
duress, she proffered the letter, which stated that the insurance carrier had made
several attempts to obtain the necessary paperwork on the vehicle from Goroshin
before finally receiving it on April 11, 2013. Goroshin objected on the ground that
the letter was hearsay, but the court allowed McCarthy to introduce the letter for
the nonhearsay purpose of showing what McCarthy believed at the time she signed
the quitclaim deed.
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Goroshin challenges the court’s statement that if he “really thought that part of the [j]udgment was
obviated by the conveyance of [McCarthy]’s interest in [the marital home] to him, he would have brought
the issue forward in any number of his motions to modify.” Contrary to his contention, Goroshin could
have moved under Maine Rule of Civil Procedure 60(b) for relief from the terms of the divorce judgment
regarding the marital home if he believed that this portion of the judgment had been satisfied or released
based on McCarthy’s assignment of her interest in the property. See Wardwell v. Wardwell,
458 A.2d 750, 752-53 (Me. 1983).
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[¶19] We review a ruling on the admissibility of evidence for clear error or
an abuse of discretion. See Bard v. Lord, 2010 ME 48, ¶ 8, 997 A.2d 101.
However, whether or not the court erred, we conclude that any error was harmless
because the court’s judgment regarding the marital home did not in fact rely on a
finding that McCarthy signed the quitclaim deed under duress. See In re Scott S.,
2001 ME 114, ¶¶ 24-25, 775 A.2d 1144.
G. Conclusion
[¶20] In summary, we vacate and remand the portion of the judgment
finding Goroshin in contempt for nonpayment of child support for 2012 but
otherwise affirm the judgment.
The entry is:
Judgment on Goroshin’s amended motion to
modify is affirmed. That portion of the judgment
on McCarthy’s motion for contempt finding
Goroshin in contempt for nonpayment of child
support for 2012 is vacated. The judgment on
McCarthy’s motion for contempt is affirmed in all
other respects.
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On the briefs:
Elliott L. Epstein, Esq., Owen Pickus, D.O., Esq. & Associates,
Kennebunk, for appellant Igor Goroshin
Sarah L. Glynn, Esq., Oxford Hills Law, South Paris, for
appellee Kate T. (Goroshin) McCarthy
South Paris District Court docket number FM-2010-177
FOR CLERK REFERENCE ONLY