Adriana M. Berntsen v. David L. Berntsen

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 111
Docket: Cum-16-300
Submitted
On Briefs: April 27, 2017
Decided: June 6, 2017

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

ADRIANA M. BERNTSEN

v.

DAVID L. BERNTSEN

MEAD, J.

[¶1] Adriana M. Berntsen appeals from a judgment of divorce from

David L. Berntsen entered in the District Court (Portland, J. French, J.). Adriana

contends that the court erred or abused its discretion (1) by limiting her

financial discovery from a third party; (2) in its valuation of marital property;

(3) by failing to find that David’s discovery violations constituted economic

misconduct; (4) by making insufficient findings supporting its award of spousal

support and failing to award her additional support; and (5) declining to award

her attorney fees. We affirm the judgment.

I. BACKGROUND

[¶2] Following a contested hearing, the court made the following

findings, which are supported by the record. See Hutt v. Hanson, 2016 ME 128,
2

¶ 2, 147 A.3d 352. Adriana and David were married in Italy on May 6, 1982.

David was serving in the U.S. Army, and Adriana “was the homemaker and

caregiver” of their four children while the family relocated to various places.

David retired from the military in 1998, and the family eventually all moved to

Maine by 2002. In 2011, the marriage broke down, and Adriana moved to

Florida. David agreed to give Adriana his military pension payments for

support, and Adriana also worked part-time at a military base selling cosmetics.

She had sold cosmetics part-time in the past, but had not worked outside the

home while residing in Maine.

[¶3] In 2013, David met his current partner. He told Adriana about his

partner in September of that year. In June 2014, without Adriana’s knowledge

or consent, David liquidated his IRA valued at about $61,000 and put most of

the funds into a bank account he owned jointly with his partner. Around that

time, he also borrowed about $11,000 against his 401(k) account. David used

the IRA funds and loan proceeds to purchase and renovate a condominium in

his partner’s name, where he and his partner currently reside.

[¶4] Adriana returned to Maine in October 2014 and filed a complaint

for judicial separation; David counterclaimed for divorce. On December 17,

2014, the court (Goranites, J.) entered an interim order on the parties’ points of
 3

agreement resulting from mediation by which they would maintain their

current life insurance policies and that David would pay Adriana $2,000 per

month in spousal support.

[¶5] On October 30, 2015, Adriana served a subpoena to take David’s

partner’s deposition and for production of documents related to her finances

and the condominium. The court (Kelly, J.), in an order entered without specific

findings, granted David’s partner’s motion to quash. On March 2, 2016, Adriana

subpoenaed David’s partner to testify at the divorce hearing and produce

financial documents. David’s partner filed another motion to quash.

[¶6] A contested hearing was held on March 15 and 23, 2016. At the

outset of the hearing, the court (J. French, J.) reminded the parties that it had

ruled at a discovery conference conducted during the previous week that the

subpoena for the appearance of David’s partner would not be quashed, but she

would not be required to produce any documents that had not been under

David or Adriana’s control. After giving the parties the opportunity to argue

the motion further, the court elaborated on its decision, ruling that Adriana did

not need documents from David’s partner to make her arguments at trial and

that they were irrelevant to the issue of the division of marital property. The

court also emphasized that while it would not limit Adriana’s access to relevant
4

information, it was taking into consideration “the burden [on] and privacy o[f]

a nonparty.”

[¶7] In a judgment dated April 11, 2016, the court found that David had

engaged in economic misconduct when he borrowed against the

401(k) account and liquidated the IRA—actions that collectively reduced the

marital estate by $72,000—and stated that this misconduct was a factor in

determining the property distribution and spousal support. The court found

that David’s 401(k) account is currently worth about $31,317 but is subject to

a loan of approximately $10,000 that he used for improvements to the condo;

he earns a salary of $85,686.90 per year; and he has a military retirement

pension, 82% of which is marital, from which he receives monthly payments of

$1659.10. Concerning Adriana, the court found that she earns $10.10 per hour

working up to 30 hours per week at a department store selling cosmetics. The

court also found, however, that she is able to work up to 40 hours per week and

earn commissions, and it therefore determined that her earning potential is at

least $21,008 per year.

[¶8] The court awarded Adriana general spousal support of $1,500 per

month, as well as reimbursement support of $237 per month for a period of

ten years. The court explained that it carefully considered the factors
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enumerated in 19-A M.R.S. § 951-A(5) (2016), “including but not limited to the

length of the marriage, Adriana’s contributions as homemaker, and David’s

economic misconduct.” It also awarded Adriana 100% of the remaining

balance of the 401(k) account and 59% of the marital portion of David’s

military pension. The judgment ordered that David and Adriana each retain

ownership of the personal property already in their possession and their

personal bank accounts, which the court found to be equal in value. The court

declined to award attorney fees to either party, noting that both parties had

incurred “substantial legal fees” and “consider[ing] the manner in which both

parties litigated the case.”

[¶9] Adriana moved for amended or additional findings of fact and

conclusions of law pursuant to M.R. Civ. P. 52(b), which the court denied. This

timely appeal followed. See M.R. App. P. 2.

II. DISCUSSION

A. Limitations on Financial Discovery

[¶10] Adriana contends that the court erred when it limited her

discovery by effectively granting David’s partner’s motions to quash the

subpoenas for her deposition and for the production of her personal financial

documents. “We review a court’s decision on a motion to quash for an abuse of
6

discretion.” State v. Marroquin-Aldana, 2014 ME 47, ¶ 33, 89 A.3d 519; see also

State v. Watson, 1999 ME 41, ¶ 5, 726 A.2d 214; Corey v. Norman, Hanson &

DeTroy, 1999 ME 196, ¶ 17, 742 A.2d 933 (“A party aggrieved by a discovery

order must show . . . that the trial judge committed error in the discovery ruling

despite the considerable discretion vested in the judge . . . .” (quotation marks

omitted)).

[¶11] Generally, the scope of discovery in civil proceedings is broad, and

“[p]arties may obtain discovery regarding any matter, not privileged, which is

relevant to the subject matter involved in the pending action.”

M.R. Civ. P. 26(b)(1); see 2 Harvey & Merritt, Maine Civil Practice § 26:3 at

643-48 (3d, 2016-2017 ed.). However, “[t]he broad scope of discovery

generally permitted in civil actions is restricted in divorce proceedings,” largely

to “money and property matters.” Levy, Maine Family Law § 4.4[1] at 4-14

(8th ed. 2013); see M.R. Civ. P. 112(a)(1) (“In any proceeding under this chapter,

a party may obtain discovery on issues of spousal and child support, counsel

and guardian ad litem fees, and disposition of property and debt as in any other

civil actions.”).

[¶12] Here, it was within the court’s discretion to quash the subpoenas

for David’s partner’s deposition and production of personal financial
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documents. She was not a party to the case, and, on this record, it was not an

abuse of discretion for the court to determine that records pertaining to David’s

finances and the testimony of both David and his partner were sufficient to

demonstrate his financial status and inform the court’s awards of spousal

support and distribution of marital property.1

B. Findings Regarding the Value of Marital Property

[¶13] Adriana asserts that there is insufficient evidence to support the

court’s findings regarding the balances in the parties’ bank accounts. She also

asserts that the court erred in finding that the value of David’s 401(k) account

was about $21,000 when a document produced by David at the hearing showed

it has a net value of $25,270.49. “We review a divorce court’s determination of

the value of marital property for clear error.” Burrow v. Burrow, 2014 ME 111,

¶ 20, 100 A.3d 1104 (quotation marks omitted). The court’s valuation of assets

“must reflect a reasoned evaluation by the court of all of the evidence.” Cole v.

Cole, 561 A.2d 1018, 1020 (Me. 1989).

1 We note that at the hearing, Adriana had the opportunity to inquire of David’s partner—and did

so extensively—regarding her employment and income, joint living expenses incurred with David,
the condominium purchase and renovations, and specific transactions as shown on bank statements
for an account she owns jointly with David. Additionally, David testified that he had used money from
the IRA and 401(k) account to, among other things, purchase the condominium in his partner’s name.
8

[¶14] The court found that the parties’ bank account balances “fluctuate

in value” and were “equal for purposes of the division of marital property.” The

record supports these findings: David testified from memory that he had less

than $100 in one account, $400-500 in the account jointly owned with his

partner, and $300-400 in another account. Adriana’s financial statement

indicated that she has two checking accounts containing $500 and $1,330.77

respectively, as well as $65 in a savings account. Evidence indicated that the

balances of the parties’ bank accounts fluctuated. Overall, the court’s findings

regarding the parties’ bank accounts reflect a “reasoned evaluation” of the

evidence, and are not clearly erroneous. Peters v. Peters, 1997 ME 134, ¶ 14,

697 A.2d 1254 (quotation marks omitted).

[¶15] Regarding the 401(k) account, the court found that it was worth

about $21,000; however, an account statement dated March 11, 2016, indicates

that the 401(k) account has a vested value of $35,091.03 and is subject to a

$9,820.54 loan, making it worth $25,270.49. Nonetheless, any error in the

court’s finding as to the value of the 401(k) account actually inures to Adriana’s

benefit because the court ordered David to transfer “100% of the 401(k) less

the loan balance” to her, which resulted in her receiving a larger award than the

court had accounted for in its order.
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C. Economic Misconduct

[¶16] Although the court found that David committed economic

misconduct when he liquidated his IRA and took a loan against his

401(k) account, Adriana asserts that the court erred when it did not find that

David committed economic misconduct when he failed to sign and file an

updated financial statement; failed to produce a letter indicating that he gave a

$50,000 “gift” to his partner, contradicting his deposition testimony that he

made no such gifts; and concealed money received from his partner used to pay

for his living expenses. We review the court’s finding that a party did or did not

commit economic misconduct for clear error. Catlett v. Catlett, 2009 ME 49,

¶ 31, 970 A.2d 287.

[¶17] At the hearing, David identified his financial statement, which was

admitted as an exhibit, and explained that he “[didn]’t know” why it wasn’t

signed; he also testified to his current income, assets, and expenses.

Accordingly, the court had evidence regarding David’s finances and did not err

by declining to find that the failure to sign his affidavit constituted economic

misconduct.

[¶18] Concerning the gift letter, David testified that he had not initially

remembered that the gift letter existed and could not recall the circumstances
10

surrounding his signing of the letter. He had failed to disclose the gift or

reference any letter regarding any gifts in his deposition and answers to

Adriana’s interrogatories. David testified that the $50,000 transaction

mentioned in the gift letter corresponds to the money that he received when he

drew from the IRA. The court found that David committed economic

misconduct when he liquidated that asset, and considering the court’s

discretion in determining witness credibility, see Hutt, 2016 ME 128, ¶ 14,

147 A.3d 352, did not clearly err by failing to find that David committed

additional misconduct by failing to produce the gift letter at an earlier time.

[¶19] David’s partner testified that she gave him $1,500 per pay period

to pay bills, but David contradicted his partner’s testimony and asserted that

those amounts were applied to her own attorney fees—not to him. We find no

error in the court’s declining to specifically find, upon this conflicting

testimony, economic misconduct regarding the manner in which David may

have paid his expenses pending the divorce.

D. Spousal Support

[¶20] Adriana asserts that the court made insufficient findings to

support its awards of general spousal support and reimbursement support, and

that it erred by declining to award a higher amount of support. We review an
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award of spousal support for an abuse of discretion. Dube v. Dube, 2016 ME 15,

¶ 10, 131 A.3d 381. Because Adriana moved for further findings of fact and her

motion was denied, “we cannot infer findings from the evidence in the record.”

Douglas v. Douglas, 2012 ME 67, ¶ 27, 43 A.3d 965. “Instead, the court’s

decision must include sufficient findings to support its result or the order must

be vacated.” Id.

[¶21] In an order awarding spousal support, the court must make

“sufficient findings to inform the parties of the reasons for its conclusions, and

to allow for effective appellate review.” Finucan v. Williams, 2013 ME 75, ¶ 15,

73 A.3d 1056 (quotation marks omitted). However, “a court is not required to

detail the rationale it uses to reach each finding of fact or conclusion of law.”

Miele v. Miele, 2003 ME 113, ¶ 11, 832 A.2d 760.

[¶22] Here, the court awarded Adriana general support in the amount of

$1,500 per month. The court stated that it carefully considered the statutory

factors prescribed in 19-A M.R.S. § 951-A(5), “including but not limited to the

length of the marriage, Adriana’s contributions as homemaker, and David’s

economic misconduct,” and it made findings pertaining to those factors. The

court found that while David was in the military, Adriana did not work out of

the home and was the “homemaker and caregiver” of the parties’ four children;
12

made thorough findings regarding the parties’ employment histories; and

found that David has an annual salary of $85,686.90, and that Adriana can earn

at least $21,008 per year through her hourly wages and commission at the

department store.2 These findings were not clearly erroneous, and the court

did not abuse its discretion in its award of general spousal support.

[¶23] The court also awarded Adriana reimbursement support in the

amount of $237 per month for ten years, citing David’s economic misconduct.

Although the court did not explain in detail its methodology for computing

reimbursement support, we note that the court awarded the entire remaining

balance in the 401(k) account to Adriana due to David’s economic misconduct,

and that the reimbursement support figure, when computed to a ten-year total,

approaches nearly half of the value of the $61,000 IRA that David liquidated.

[¶24] Adriana’s Rule 52(b) motion did not request greater specificity

regarding the court’s methodology in awarding reimbursement support; it

simply asks the court to “incorporate the following finding[] of fact and

conclusion[]of law”:

15. The Court amends its finding that the Defendant shall pay
Ms. Berntsen reimbursement support, for a period of 10 years, in

2 Contrary to Adriana’s contention, this finding is supported by the record. Adriana testified that

she can choose the shifts and hours that she works at the department store, “can count on the hours
that [she] will work” due to her “good rapport” with other employees, and sells “quite a bit of
product,” on which she earns a three percent commission.
 13

the amount of $237 per month. Absent the Defendant’s economic
misconduct, Ms. Berntsen would have been entitled to 50% of the
depleted asset, or $36,000. The Court amends the reimbursement
support to $328.66 per month for a period of 10 years.

The court’s methodology in determining an amount of reimbursement support

clearly paralleled Adriana’s approach but did not use the balance of the

depleted marital estate as an express starting point.3 Accordingly, we discern

no error in the findings underlying the court’s award, see Miele, 2003 ME 113,

¶ 11, 832 A.2d 760; Bayley v. Bayley, 602 A.2d 1152, 1154 (Me. 1992) (“[W]here

a party has moved for specific findings of fact the divorce court is obliged to do

more than recite the relevant criteria and state a conclusion.” (emphasis

added)), and, given the other provisions of the judgment, no abuse of discretion

in the amount of reimbursement support awarded.

E. Attorney Fees

[¶25] Finally, Adriana contends that the court erred by failing to award

her attorney fees. “We review the court’s decision not to award attorney fees

for an abuse of discretion.” Jandreau v. LaChance, 2015 ME 66, ¶ 29,

116 A.3d 1273. “[T]he court has discretion to consider all factors that

reasonably bear on the fairness and justness of the award,” including “the

3 Because the court awarded Adriana the entire remaining balance of the 401(k) account, the

additional awarding of reimbursement support amount based upon that same amount would create
a double recovery.
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parties’ relative capacity to absorb the costs of the litigation and conduct by one

party that increases the costs of the litigation.” Id. (quotation marks omitted).

[¶26] In declining to award attorney fees, the court explained:

An award of counsel fees is based upon all relevant factors in
determining what is fair and just under the circumstances,
including the parties’ relative capacity to absorb the costs of
litigation. Both parties have incurred substantial legal fees in this
matter, and the [c]ourt has considered the manner in which both
parties litigated the case in determining the reasonableness of the
fees request. In light of the rest of the provisions contained in the
Divorce Judgment, including the award of spousal support and
disposition with respect to David’s military pension, the court
orders both sides to bear the costs of his and her own counsel.

(Citations omitted.)

[¶27] Here, the court properly considered the relevant factors and

delineated its reasoning for declining to award attorney fees to either party.

Considering the other provisions of the judgment, including the spousal

support award to Adriana and the distribution of marital assets, we conclude

that the court did not abuse its discretion in denying Adriana’s request for

attorney fees.

The entry is:

Judgment affirmed.

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Jeffrey Bennett, Esq., and Joan Egdall, Esq., Legal-Ease, LLC, South Portland, for
appellant Adriana M. Berntsen

Christopher P. Leddy, Esq., Ainsworth, Thelin & Raftice, P.A., South Portland, for
appellee David L. Berntsen

Portland District Court docket number FM-2014-1092
FOR CLERK REFERENCE ONLY