Mark A. Amero v. Maria C. Amero

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 150
Docket: Fra-15-609
Argued: September 13, 2016
Decided: October 13, 2016

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.

MARK A. AMERO

v.

MARIA C. AMERO

MEAD, J.

[¶1] Maria C. Amero appeals from a judgment of the District Court

(Farmington, Dow, J.) terminating a prior spousal support award based on its

finding that Maria was cohabiting with an adult partner, which triggered

termination of the support pursuant to the parties’ divorce judgment. Maria

contends that there was insufficient evidence supporting the court’s finding of

cohabitation. We find no error and affirm the judgment.

I. BACKGROUND

[¶2] Mark and Maria divorced in 2006 after over thirty years of

marriage. The court (McElwee, J.) entered a divorce judgment in September

2006 that ordered Mark to pay Maria general spousal support in the amount

of $1,100 per month. The award was subject to certain conditions, including
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that it “shall terminate upon . . . [Maria]’s remarriage or cohabitation with an

adult partner.”1

[¶3] In April 2015, Mark filed a motion to modify the spousal support

award, alleging that Maria was cohabiting with an adult partner, thereby

triggering termination of the support award pursuant to the terms of the

parties’ divorce judgment. Mark amended his motion to modify in September

2015, reiterating his assertion that Maria was cohabiting with an adult

partner and citing an impending change in his financial circumstances due to

his upcoming retirement. The court held a testimonial hearing in November

2015 at which Mark and Maria were the only witnesses.

[¶4] The trial court issued an order in November 2015 finding “by a

preponderance of the evidence [that Maria] has cohabitated with an adult

partner . . . since some time in 2010,” but it did not elaborate on the basis for

this finding. Because the court determined that Maria was cohabiting with an

adult partner, it ordered termination of the spousal support award pursuant

to the divorce judgment. The court declined to analyze the alternative

1 The full spousal support provision in the divorce judgment provides:

Upon consideration of the relevant factors of 19-A M.R.S.A. § 951-A(5), the plaintiff
shall pay general spousal support to the defendant in the amount of $1,100 per
month commencing on September 1, 2006, which shall be tax deductible to the
plaintiff, taxable to the defendant, shall not be increased, and shall terminate upon
the death of either party or upon the defendant’s remarriage or cohabitation with an
adult partner, subject to a minimum period of three years.
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question of whether a substantial change in circumstances warranted

modification because it deemed the finding of cohabitation a sufficient basis

on which to terminate support.

[¶5] Neither party moved for further findings of fact pursuant to

Rule 52(b) of the Maine Rules of Civil Procedure. Maria timely appealed,

challenging the court’s determination that she was cohabiting with an adult

partner.

II. DISCUSSION

[¶6] We review a trial court’s factual findings for clear error, which

exists 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, 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.” Violette v. Violette, 2015 ME 97, ¶ 15, 120 A.3d

667 (quotation marks omitted). We will not overturn a factual finding “simply

because an alternative finding also finds support in the evidence[, and w]e

defer to the trial court’s determination of witnesses’ credibility and its

resolution of conflicts in testimony.” Id. (quotation marks omitted). As noted
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above, there was no motion for further findings of fact, so “we must assume

the trial court made all findings necessary to support its judgment, but only to

the extent that those findings are supported by competent record evidence.”

McLeod v. Macul, 2016 ME 76, ¶ 9, 139 A.3d 920 (quotation marks omitted);

see also M.R. Civ. P. 52(b).

[¶7] We review the trial court’s ultimate decision to modify spousal

support for an abuse of discretion. Pettinelli v. Yost, 2007 ME 121, ¶ 11,

930 A.2d 1074.

[¶8] The court found that Maria was cohabiting with an adult partner

since some time in 2010, triggering cessation of the support pursuant to the

terms of the parties’ divorce judgment. Maria’s own testimony about her

living circumstances provides some support for this finding. Specifically, she

testified that, in 2010, she began a sexual relationship with an adult partner

that lasted for approximately a year. She rented housing at that time, and her

partner was homeless. That year, Maria purchased a “big rig” truck, which she

registered in her partner’s name. Maria “lived across the states” in the truck

for about one year, and her partner was the sole driver of the truck. After that,
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Maria and her partner moved into a condominium where they lived together

for three to four years.2

[¶9] Maria explained that she and her partner now live in another

condominium, where they maintain separate living quarters; Maria lives on

the first floor and her partner lives on the lower level. She told the court that

the two have separate beds and bathrooms but that the home has only one

shower, which they share. Maria testified that she attends to her partner’s

personal healthcare needs, shops for his groceries, and provides care for his

son with special needs when he visits, including taking him to school. Finally,

Maria told the court that her partner gives her money for his portion of the

rent and does not contribute to her food or housing expenses.

[¶10] The parties’ divorce judgment does not specifically define

“cohabitation,” but it was not required to do so. See Wandishin v. Wandishin,

2009 ME 73, ¶ 15, 976 A.2d 949 (“The term[ ‘cohabitation’] . . . does not

require further definition in a divorce order. Application of the term after

entry of the divorce may depend on discrete factual situations that may be

difficult to predict and anticipate through a more specific definition.”). We

have defined “cohabitation” as “maintaining a relationship with another

2 The record is not entirely clear as to the specific dates that Maria and her partner lived at each

of their residences.
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person that is the practical equivalent of marriage.”3 Charette v. Charette,

2013 ME 4, ¶ 10, 60 A.3d 1264 (quotation marks omitted); Levy, Maine Family

Law § 8.4[1] at 8-21 (8th ed. 2013) (quotation marks omitted).

[¶11] There is competent evidence in the record to support the trial

court’s finding that Maria was, and is, cohabiting with an adult partner in a

marriage-like relationship. Notably, Maria admitted that she and her partner,

with whom she had an intimate relationship in the past, lived with one

another in the same condominium for a period of several consecutive years

and continue to live together in another condominium. As to the time before

they began living in the condominiums, the record supports the inference that

Maria and her partner lived in a truck together for about a year, as Maria

testified that she “lived across the states” in the truck while her partner drove

it.

[¶12] Furthermore, the record and appropriate inferences support the

notion that Maria and her partner maintained a marriage-like relationship.

The two had a year-long sexual relationship beginning in 2010 and have

3 In her brief, Maria references 19-A M.R.S. § 951-A(12) (2015), which provides that “an order

awarding spousal support is subject to modification to terminate spousal support when it can be
shown that the payee and another person have entered into a mutually supportive relationship that
is the functional equivalent of marriage that has existed for at least 12 months of a period of
18 consecutive months.” We note that this statute is not implicated in this case because the court’s
termination of spousal support was based on a provision in the parties’ divorce judgment—not on
the statutory basis for cessation of spousal support due to cohabitation.
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maintained at least a close, interpersonal relationship since then,

demonstrated by how Maria tends to her partner’s personal healthcare needs,

shops for his groceries, and provides care for his son. Furthermore, despite

their allegedly separate living spaces, the record supports the inference that

Maria and her partner have access to each other’s areas in the residence at

which they currently reside. There is also evidence in the record that Maria

and her partner have some level of financial dependence on one another: the

two are invested in a truck, which was paid for by Maria and registered in her

partner’s name; and Maria pays rent to the landlord on behalf of them both,

though she testified that her partner reimburses her for his portion. Finally,

the court could have inferred financial dependence and a marriage-like

relationship from the fact that Maria and her partner elected to move together

to at least two different homes and have lived with each other for a period of

several consecutive years.

[¶13] Although Maria contended at the modification hearing that she

and her partner no longer have a romantic relationship and that they maintain

separate living quarters and finances, “the court, as fact-finder and sole

arbiter of witness credibility, was free to selectively accept or reject portions

or all of” her testimony. Efstathiou v. Efstathiou, 2009 ME 107, ¶ 12, 982 A.2d
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339; see also Pelletier v. Pelletier, 2012 ME 15, ¶ 13, 36 A.3d 903

(“Determinations of witness credibility are uniquely within the fact-finder’s

authority, and the fact-finder is free to discount or entirely ignore testimony

the fact-finder finds incredible.” (quotation marks omitted)). In light of this

level of discretion and the absence of a motion for further findings pursuant to

Maine Rule of Civil Procedure 52(b), we conclude that the court’s finding that

Maria and her partner were cohabiting was not clearly erroneous.4

[¶14] The plain language of the parties’ divorce judgment provides that

the spousal support award terminates if Maria cohabits with an adult partner,

and the finding of cohabitation provided a sufficient basis for the court’s

decision to terminate the support award. Accordingly, the court did not abuse

its discretion when it terminated the spousal support award.

The entry is:

Judgment affirmed.

4 Any error in regard to when the cohabitation began is harmless and does not provide grounds

for vacating the court’s order. See M.R. Civ. P. 61. That Maria cohabited with an adult partner at any
time after the divorce judgment was issued is sufficient to trigger termination of spousal support
pursuant to the divorce judgment, subject only to the judgment’s prescribed minimum of three
years of support. See supra note 1. The court declined to terminate the support retroactively, so
the specific date when cohabitation began is not of consequence.
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On the briefs and at oral argument:

James P. Howaniec, Esq., Lewiston, for appellant Maria C. Amero

David M. Sanders, Esq., Sanders & Hanstein, P.A., Farmington, for
appellee Mark A. Amero

Farmington District Court docket number FM-2005-160
FOR CLERK REFERENCE ONLY