Dubord v. Dubord

GLASSMAN, Justice,

with whom Roberts, J., joins, dissenting.

I must respectfully dissent. The trial court found that the funds expended by Susan Dubord for the acquisition of the marital home “were contributions by Susan Dubord to the marital estate” and accordingly held that the residence at Cherry Hill Terrace was marital property and divided it between the parties in accordance with that determination. Susan Dubord challenges this finding by the trial court.

The law is well settled that

[a] divorce court's determination of what property is marital and what is non-marital is reviewed for clear error, and will not be disturbed if there is competent evidence in the record to support it.

West v. West, 550 A.2d 1132, 1133 (Me.1988). A review of the record in this case supports the court’s finding. It is undisputed that Susan Dubord had certain investments at the time of her marriage to Daniel J. Dubord, which were and remained her separate property. She maintained a separate bank account and testified, inter alia, that the dividends, interest and the *261proceeds from the sale of any of that property were deposited in that account. It is from this checking account that Susan Du-bord secured the funds for the purchase of the property. She also drew funds from this- account to pay for a multiplicity of other purchases and services for herself and her two children. She had no records and offered no other evidence that would allow the trial court to determine what portion of the funds in her checking account at any time was proceeds from the sale of her separate property and what was income derived from that property in the form of interest or dividends.

It is not disputed that any interest on or dividends from her investments paid to Susan Dubord after her marriage would be income to her and marital property. The court erroneously states that the trial court “determined that the funds from Susan’s investments used to purchase the Cherry Hill Terrace residence were non-marital property.” What the trial court found was that those moneys were “from her non-marital investment accounts,” not that the funds were non-marital. The presumption that all property acquired after marriage is marital property is expressly stated in 19 M.R.S.A. § 722-A(3) (1981). It was Susan Dubord’s burden to overcome that presumption. See 19 M.R.S.A. § 722-A(2). The record would not support a finding that she had met this burden. The trial court was not compelled to find that the funds used by Susan Dubord toward the purchase of the family home were “an exchange for property acquired prior to her marriage,” see 19 M.R.S.A. § 722-A(3), rather than marital property in the form of dividend and interest income derived from her separate property. This record does not require that either the trial court or this court determine the presence or absence of a “donative intent” on the part of Susan Dubord or the effect, if any, of the presence or absence of such intent. I would affirm the judgment of the Superior Court.