Kevin Dube v. Lisa Dube , 2016 Me. LEXIS 15 ( 2016 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 15
Docket: Yor-15-231
Submitted
On Briefs: November 19, 2015
Decided: January 19, 2016
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, HJELM, and HUMPHREY, JJ.
KEVIN DUBE
v.
LISA DUBE
HUMPHREY, J.
[¶1] Kevin Dube appeals from a divorce judgment entered in the District
Court (Biddeford, Janelle, J.). He argues that the court abused its discretion in
setting his rights of contact with the parties’ daughter by (1) depriving him of
overnight visitation with his daughter, and (2) failing to set a specific contact
schedule. He also challenges the judgment as to the spousal and child support
awards, arguing that the court erred in finding that Kevin earns $175,000 per
year—a finding underpinning both awards. For the following reasons, we
conclude that the court did not abuse its discretion in setting Kevin’s rights of
contact. However, because we conclude that the court erred in its finding
regarding Kevin’s income, we vacate the judgment as to the spousal and child
support awards and remand for further proceedings consistent with this opinion.
2
I. BACKGROUND
[¶2] The following facts, drawn from the record in this contested divorce
matter, are undisputed. Kevin and Lisa Dube were married on December 24, 2002,
and have a fourteen-year-old daughter.1 Kevin is a merchant marine engineer who
works the majority of the year on the Great Lakes. Lisa is a homemaker who
earned some income over the course of the marriage through self-employment.
[¶3] Kevin filed a complaint for divorce on March 25, 2014. On
February 10, 2015, a final divorce hearing was held in the District Court,2 and on
March 13, 2015, the court entered a final divorce judgment granting Lisa and
Kevin shared parental rights and responsibilities and stating,
Kevin shall have the right to visit with and be visited by [their
daughter] at all reasonable times when he is in Maine during time off
from his work on the Great Lakes. The parents shall confer to set up a
workable schedule. Lisa and Kevin should be flexible in scheduling
parenting time and should consider the benefits to [their daughter] of
frequent, meaningful and regular contact with each parent and the
schedules of the child and each parent. Both parents shall provide the
other parent direct telephone access to [their daughter]. Phone calls
made to [their daughter] shall be promptly returned.
The court stated that it had “made certain findings regarding the parties’ incomes
and Parental Support Obligation set forth in the Child Support Worksheet that are
incorporated herein” and ordered that Kevin pay $325 per week in child support.
1
Kevin also has one adult child from a previous relationship.
2
The hearing was delayed in part to accommodate Kevin’s work schedule in the Midwest.
3
The worksheet lists Lisa’s gross income as $25,000 per year and Kevin’s as
$175,000. The court also ordered that Kevin pay general spousal support of
$3,300 per month for six years, stating,
The [c]ourt considered all of the factors listed in
19-A M.R.S. § 951-A [2015] in arriving at this spousal support award.
The [c]ourt finds that Kevin currently earns significantly more income
than Lisa and that he has a much greater earning potential than Lisa.
This spousal support award allows both parties to maintain a
reasonable standard of living after the divorce.
[¶4] On March 23, 2015, Kevin filed a motion to alter or amend the
judgment, pursuant to M.R. Civ. P. 59(e), and a motion for findings of fact,
pursuant to M.R. Civ. P. 52(a),3 concerning, in relevant part, his rights of contact
with his daughter and the court’s finding regarding his income.4 After the court
denied both motions without indicating its reasoning, Kevin timely appealed to us
pursuant to 14 M.R.S. § 1901 (2015) and M.R. App. P. 2.
3
Maine Rule of Civil Procedure 52 was recently amended, see 2015 Me. Rules 15 (effective
Sept. 1, 2015), but these amendments do not affect this appeal.
4
Both parties note that the final judgment is captioned “Defendant’s Proposed Divorce Judgment.”
However, the text of the judgment does not indicate that the court simply copied Lisa’s proposed
judgment. See Jarvis v. Jarvis, 2003 ME 53, ¶ 14, 832 A.2d 775 (“[A] trial court’s verbatim adoption of
findings or orders proposed by one party in a case is disfavored . . . .”).
4
II. DISCUSSION
A. Rights of Contact
1. Overnight Visitation
[¶5] Kevin contends that the court erred by “depriving” him of overnight
visitation with his daughter. We review determinations of rights of contact for
abuse of discretion. Sullivan v. Doe, 2014 ME 109, ¶ 19, 100 A.3d 171.
Generally, a trial court is “afforded broad discretion to determine the custodial
arrangements for a minor child.” Jackson v. MacLeod, 2014 ME 110, ¶ 23,
100 A.3d 484. Because Kevin did not timely move for findings on the issue of
rights of contact, 5 we assume that the District Court made all the findings
necessary to support its judgment on that issue, if those findings are supported by
the record. See Young v. Young, 2015 ME 89, ¶ 5, 120 A.3d 106.
[¶6] A court’s discretion in determining rights of contact is constrained by
the principle that “except when a court determines that the best interest of a child
would not be served, it is the public policy of this State to assure minor children of
5
Kevin’s Rule 52(a) motion for findings of fact was untimely as to the issue of his rights of contact
with his daughter. Kevin filed the motion ten days after the divorce judgment was docketed, but
M.R. Civ. P. 52(a) establishes a seven-day deadline. Kevin contends that his motion should be treated as
a Rule 52(b) motion for additional findings of fact, with a fourteen-day deadline, see M.R. Civ. P. 52(b),
notwithstanding the motion’s caption. However, we have established that a motion for findings of fact is
governed by Rule 52(a) when the trial court “had not issued findings of fact and conclusions of law on the
issues that were the subject of the motion.” Young v. Young, 2015 ME 89, ¶ 10, 120 A.3d 106 (emphasis
added). Because the court did not make any findings as to parent-child contact in the judgment, Kevin’s
motion was governed by Rule 52(a) as to that issue, and was therefore untimely.
5
frequent and continuing contact with both parents.” 19-A M.R.S. § 1653(1)(C)
(2015). The District Court did not determine that frequent contact with Kevin
would not be in his daughter’s best interest. We therefore assume that the court
made the necessary findings to support its judgment that Kevin and Lisa can work
together to create a schedule assuring their daughter of frequent and continuing
contact with Kevin.
[¶7] The record demonstrates that such cooperation is possible. Lisa
testified that she would like to keep Kevin involved in their daughter’s life, and
that she has the ability to co-parent and communicate with Kevin. Lisa proposed
that Kevin would have the right to “visit with and be visited by” their daughter
every other day when he is home in Maine, from noon until 8:00 p.m. on days
when she is not in school, and from 3:30 p.m. until 8:00 p.m. on school days.
Finally, Lisa testified that it was Kevin who did not keep to the contact schedule
during the pendency of the divorce by missing scheduled visits with their daughter.
[¶8] Kevin’s contention that the court “deprived” him of overnight
visitation is not accurate. Despite evidence in the record that Lisa will not allow
Kevin to visit overnight with their daughter, the court’s judgment does not itself
purport to limit overnight visitation in any way. If the parties are able, over time,
to agree to expanded visits between Kevin and his daughter, the judgment will not
prevent that.
6
2. Contact Schedule
[¶9] Kevin also argues that the court abused its discretion by denying his
timely motion to alter or amend the judgment to include a specific contact schedule
for the times when he is in Maine. Essentially, Kevin’s argument is based on his
contention that the lack of a specific contact schedule “will jeopardize any
continuing relationship with [his daughter] and undoubtedly require further legal
proceedings.”6 “We review a trial court’s grant or denial of a motion seeking
clarification and amendment of a judgment for an abuse of discretion.”
Theberge v. Theberge, 2010 ME 132, ¶ 21, 9 A.3d 809. There is evidence in the
record supporting the court’s finding that Lisa and Kevin can arrange a contact
schedule ensuring frequent and continuing contact between Kevin and his
daughter. For these reasons, we affirm the judgment as it pertains to rights of
contact.7
6
Kevin’s Rule 59 motion was timely, see M.R. Civ. P. 59(b), but he has not preserved the argument
that the court’s judgment is ambiguous or vague as to the rights of contact because he failed to raise that
issue in his motion. See Foster v. Oral Surgery Assocs., P.A., 2008 ME 21, ¶ 22, 940 A.2d 1102 (“An
issue raised for the first time on appeal is not properly preserved for appellate review.”).
7
We note that if Lisa denies Kevin “frequent, meaningful and regular contact” with their daughter in
violation of the judgment, Kevin can seek modification of the terms of rights of contact and remedial
sanctions. 19-A M.R.S. § 1653(7) (2015); M.R. Civ. P. 66; see Hogan v. Veno, 2006 ME 132, ¶¶ 19-20,
909 A.2d 638.
7
B. Spousal Support
[¶10] Kevin argues that the trial court’s findings are inadequate to sustain
the amount of the spousal support award. We review a decision regarding spousal
support for abuse of discretion. Jandreau v. LaChance, 2015 ME 66, ¶ 14,
116 A.3d 1273. The trial court “has a duty to make findings sufficient to inform
the parties of the reason underlying [its] conclusions and to provide for effective
appellate review.” Brown v. Habrle, 2008 ME 17, ¶ 10, 940 A.2d 1091 (quotation
marks omitted). Because Kevin timely moved for findings of fact on his income,8
which is a consideration underlying a court’s spousal support award,
see 19-A M.R.S. § 951-A(5)(B), (E), we cannot assume that the court’s findings
were sufficient to support the judgment. See Douglas v. Douglas, 2012 ME 67,
¶ 27, 43 A.3d 965 (stating that when a motion for findings has been filed and
denied, “the court’s decision must include sufficient findings to support its result or
the order must be vacated”); Bayley v. Bayley, 602 A.2d 1152, 1154 (Me. 1992)
8
We treat Kevin’s motion for findings of fact as a timely Rule 52(b) motion regarding the issue of his
income because the court did make findings on that issue. See Most v. Most, 477 A.2d 250, 256 n.2
(Me. 1984) (stating that we will regard a motion as though it were brought pursuant to the appropriate
rule of civil procedure, regardless of its caption).
Because Kevin did not raise the calculation of Lisa’s income as an issue in his Rule 59 motion, or
move for findings on this issue in his Rule 52 motion, his argument that the trial court improperly
calculated Lisa’s income in regards to the spousal and child support awards is not preserved, and there is
no obvious error. See Foster, 2008 ME 21, ¶ 22, 940 A.2d 1102. Kevin’s motion for findings of fact was
also untimely as to Lisa’s alleged economic misconduct because the court did not make findings on that
issue. Nevertheless, the evidence on that issue could reasonably have led the court to conclude that Kevin
and Lisa were equally to blame for their poor financial situation.
8
(“[W]here a party has moved for specific findings of fact the [court] is obliged to
do more than recite the relevant criteria and state a conclusion.”).
[¶11] Kevin’s most recent child support affidavit and financial statement
both listed his estimated income as $136,420 for 2015. The court did not provide
any explanation for its finding, contained in the child support worksheet, that
Kevin’s gross income is $175,000, and it is not clear whether the court was
imputing income to Kevin, despite his testimony that he is planning to no longer
take additional “winter work,” or basing its finding on previous years in which
Kevin had made more than $136,000.
[¶12] We have vacated and remanded a divorce judgment where the trial
court relied on something other than a party’s most recent statement of income
without providing its reasons for doing so, or otherwise arrived at an income figure
without adequate explanation. See Williams v. St. Pierre, 2006 ME 10, ¶¶ 9-10,
889 A.2d 1011 (vacating and remanding the judgment because the “court may have
had a reason for concluding that Williams’s earning capacity was higher than the
earnings estimated by his most recent child support affidavit, but without explicit
findings to justify the reliance on the older affidavit, our appellate analysis is
hindered”); Jarvis v. Jarvis, 2003 ME 53, ¶¶ 22-23, 832 A.2d 775 (vacating and
remanding the judgment because the “trial court did not state its reasoning for
ignoring [the party’s] current income and relying on his income . . . from his
9
former employment”); Payne v. Payne, 2006 ME 73, ¶¶ 10-11, 899 A.2d 793
(vacating and remanding the judgment where it was unclear whether an income
finding was based on imputation of income by the court).
[¶13] The trial court, despite Kevin’s Rule 52 motion, did not make findings
concerning Kevin’s income sufficient to inform the parties of the reasoning
underlying its conclusion and to provide for effective appellate review. It is
possible that Kevin “currently earns significantly more income than Lisa” no
matter how his income is computed, but we cannot speculate how a different
calculation of Kevin’s gross income would inform the trial court’s spousal support
award. Because we conclude that the court’s finding regarding Kevin’s income,
which the court implicitly relied upon in determining the spousal support award, is
insufficient to support the judgment, we vacate the spousal support award and
remand the matter for further proceedings regarding spousal support. 9
C. Child Support
[¶14] Finally, Kevin contends that the child support award should be
vacated and remanded because of the court’s unsupported finding regarding his
income. We review an award of child support for abuse of discretion. Young,
9
Kevin also argues that the trial court erred in setting the duration of the spousal support award.
Because we are vacating the spousal support award in its entirety, we do not address this aspect of the
award. However, we remind the trial court to consider the rebuttable presumption controlling the
duration of spousal support awards, 19-A M.R.S. § 951-A(2)(A)(1) (2015), on remand.
10
2015 ME 89, ¶ 7, 120 A.3d 106. Because the court’s finding concerning Kevin’s
income, which is cited in connection with the child support award, is insufficient to
support the judgment for the reasons discussed above, we also vacate the child
support award and remand the matter for further proceedings regarding child
support.10
The entry is:
Judgment as to spousal and child support vacated.
Judgment affirmed in all other respects. Remanded
for further proceedings consistent with this opinion.
On the briefs:
Gene R. Libby, Esq., and Tyler J. Smith, Esq., Libby O’Brien
Kingsley & Champion, LLC, Kennebunk, for appellant Kevin
Dube
Jeffrey P. Buhrman, Esq., South Portland, for appellant Lisa
Dube
Biddeford District Court docket number FM-2014-111
FOR CLERK REFERENCE ONLY
10
In her brief, Lisa asks us to require Kevin to pay her attorney fees because she contends that his
appeal is frivolous. Ordinarily, a request for sanctions of this kind must be made in a separately filed
motion. M.R. App. P. 13(f). In addition, as we are vacating and remanding the judgment in part, it is
clear that Kevin’s appeal does not meet the usual standard for sanctions—an “egregious case” of an
obviously frivolous appeal taken with no reasonable likelihood of prevailing, or with the purpose of
causing delay. See id.; Estate of Dineen, 2006 ME 108, ¶ 8, 904 A.2d 417.