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Dargie v. Dargie
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 127
Docket:	And-01-20
Argued:	May 16, 2001
Decided:	July 30, 2001

Dissenting:	DANA, J.


	[¶1]	Roger Dargie appeals from a judgment entered in the Superior
Court (Androscoggin County, Studstrup, J.), affirming the judgment of the
District Court (Lewiston, Beliveau, J.), granting a divorce on the grounds of
irreconcilable differences.  We affirm the judgment.
	[¶2]	Roger argues that the District Court erred when it failed to make
further findings of fact pursuant to his request.  A party may, pursuant to
M.R. Civ. P. 52(b), request a court to "amend its findings or make additional
findings."  The trial court "'has a duty to make findings sufficient to inform
the parties of the reasoning underlying its conclusions and to provide for
effective appellate review.'"  Sewall v. Saritvanich, 1999 ME 46, ¶ 9, 726
A.2d 224, 225 (quoting Peters v. Peters, 1997 ME 134, ¶ 10, 697 A.2d
1254, 1258).  "If the judgment does not set forth adequate findings on the
contested issues and the court does not make the requested findings
pursuant to M.R. Civ. P. 52, intelligent appellate review is impossible and the
denial of a motion for further findings of fact constitutes an abuse of
discretion."  Id. (citing Peters, 1997 ME 134, ¶ 11, 697 A.2d at 1258).
	[¶3]	The District Court's Judgment is thirty-five (35) pages long.  Of
those thirty-five pages, nineteen (19) are devoted to findings of fact.  Roger
correctly asserts that he is entitled to findings of fact sufficient to allow for
appellate review.  What Roger seeks, however, is not further findings of fact,
but the rationale used by the District Court to reach the conclusions that it
reached; that he is not entitled to.  The District Court made sufficient
findings of fact such that intelligent appellate review is not precluded in this
	[¶4]	Roger argues that the trial court erred in its division of the
marital assets.  When the Superior Court acts as an intermediate appellate
court, we review the decision of the District Court directly.  Kapler v.
Kapler, 2000 ME 131, ¶ 6, 755 A.2d 502, 506 (citation omitted).  "We
review the division of marital property for an abuse of discretion."  Long v.
Long, 1997 ME 171, ¶ 19, 697 A.2d 1317, 1324 (citing Arey v. Arey, 651
A.2d 351, 353 (Me. 1994)).  The District Court's division of marital property
will be vacated only if there is a "violation of some positive rule of law or if
the division results in a 'plain and unmistakable injustice, so apparent that it
is instantly visible without argument.'"  Doucette v. Washburn, 2001 ME 38,
¶ 23, 766 A.2d 578, 586 (quoting Pederson v. Pederson, 644 A.2d 1045,
1046 (Me. 1994) (citations omitted)).  
	[¶5]	The District Court's authority with respect to the distribution of
marital property is governed by 19-A M.R.S.A. § 953 (1998).{1}  A divorce
court is not required to divide marital property equally, but rather, "is
required to make the division fair and just considering all of the
circumstances of the parties."  Doucette, 2001 ME 38, ¶ 24, 766 A.2d at
586 (citations omitted).
	[¶6]	During the course of the marriage, the parties accumulated
numerous articles of personal property and acquired title to one parcel of
real estate.  Roger challenges the court's distribution of four items of marital
property:  (1) the $150,000 in life insurance proceeds received by Deborah
on the death of her father, (2) Roger's interest in Safe Approach, Inc., a
company in which he is a 50% owner, (3) the parties' Taywood Road
residential property, and (4) a Century cabin cruiser and boat-slip.  The
District Court awarded Deborah both the insurance proceeds and the
Taywood Road real estate.  The court awarded Roger the boat and boat-slip,
and his interest in Safe Approach, Inc., subject to a payment of $56,000 to
A.  The proceeds of the life insurance policy.
	[¶7]	 Deborah was the beneficiary of a term life insurance policy on
her father's life.  Roger contests the court's award of the life insurance
proceeds to Deborah.  At the time of the hearing, Deborah was employed by
Professional Graphics, a business owned by her now-deceased father. 
Evidence was introduced showing that Deborah's father increased Deborah's
weekly compensation to aid her in the payment of the term life insurance
	[¶8]	In justifying its award of the full $150,000 to Deborah, the court
succinctly stated that 
	[t]here is . . . no question in this court's mind that the
proceeds of this insurance policy although marital are hereby
awarded to [Deborah].  She is entitled to all the proceeds
because the facts support this position.  The father intended to
benefit his daughter by providing her with the insurance policy
and placed it in her name.  The father's estate plan took this
into consideration.  The plaintiff will not receive a special
bequest upon the death of her mother.  However, her siblings
are entitled to a $100,000 bequest.  It is obvious to the court
without further comment that the "intention" of the plaintiff's
father and his company was to provide for plaintiff separate from
the other children because of her involvement over the years
with Professional Graphics, Inc.[,] her father's business.
	[¶9]	The District Court determined that the insurance proceeds were
marital property, and then, based on the unique and special facts of this
case, properly awarded the proceeds to Deborah.  We cannot say that
awarding Deborah the life insurance proceeds "results in a 'plain and
unmistakable injustice, so apparent that it is instantly visible without
argument.'"  Doucette, 2001 ME 38, ¶ 23, 766 A.2d at 586 (quoting
Pederson, 644 A.2d at 1046).  
B.  The parties' home.
	[¶10]  The parties jointly own a home located on the Taywood Road in
Auburn, which they stipulated is valued at $118,000.  There is a first
mortgage on the home, held by Androscoggin Savings Bank, with a balance
of approximately $51,000.  The court awarded Deborah the home, where
she lives with the parties' daughter, subject to a mortgage debt for which
Deborah is responsible.
	[¶11]  Awarding Deborah the Taywood Road home does not "result[] in
a 'plain and unmistakable injustice, so apparent that it is instantly visible
without argument.'"  Id.  
C.  Safe Approach, Inc., and Roger's boat.
	[¶12]  The court awarded to Roger his interest in Safe Approach, Inc. 
In determining the value of the company, the District Court heard testimony
from two expert witnesses.  Based on that testimony, the court concluded
that the fair market value of Roger's 50% interest in Safe Approach, Inc. was
$112,000.  The District Court, in determining Safe Approach's market
value, noted that its valuation, "is . . . conservative considering all of the . . .
options. . . ."  We will not substitute our judgment for it on that issue.  See
Kapler, 2000 ME 131, ¶ 9, 755 A.2d at 507.  
	[¶13]  The court determined that Roger's interest in Safe Approach
was marital property.  It awarded that interest to Roger and ordered him to
pay one-half of the value attributed to that interest in the company to
Deborah.  The court also assigned Roger the responsibility for repayment of
the debt secured by the second mortgage on the Taywood Road real estate. 
Roger borrowed this money in 1994 and, subsequently, loaned it to Safe
Approach.  Safe Approach has been amortizing the debt. 
	[¶14]  The parties requested that the court award Roger the boat and
boat-slip.  The court subsequently awarded Roger the parties' Century cabin
cruiser and the boat-slip at the Jordan Bay Marina. 
	[¶15]  When making its property award, the District Court noted that 
the court is convinced that an equal division of marital assets
would not be equitable or just under the circumstance of this
case.  There is no question that the plaintiff's insurance
proceeds should not be divided equally or fractionally but should
be awarded entirely to the plaintiff.  Also the court has
considered in detail the value of the defendant's interest in Safe
Approach, Inc[.] and considers its conclusion of value as the
more conservative considering all of the other options . . . . 
	[¶16]  We again emphasize the general rule that a divorce court is not
required to make an equal distribution of marital property; rather, it is
required to make the division "fair and just considering all of the
circumstances of the parties."  Doucette, 2001 ME 38, ¶ 24, 766 A.2d at
586 (citation omitted).  It is clear to us that the District Court properly
considered all of the circumstances of the parties.  Therefore, we cannot
conclude that the court exceeded the bounds of its discretion when dividing
the marital assets and debts.  See Long, 1997 ME 171, ¶ 19, 697 A.2d at
1324 (citation omitted).  
	[¶17]  Roger also contends that the trial court erred in: (1) finding
that Deborah's income is $27,000 per year, (2) finding that Roger's income
is $65,000, and (3) calculating spousal and child support.
A.  The parties' income.
	[¶18]  The court's determination of the parties' income is a finding of
fact that we review pursuant to the clearly erroneous standard.  Ramsdell v.
Ramsdell, 1997 ME 14, ¶ 5, 688 A.2d 918, 921 (citing Quin v. Quinn, 641
A.2d 180, 181 (Me. 1994)).  Deborah's testimony, and her M.R. Civ. P. 80(C)
financial statement, shows that, at the time of the hearing, she was earning
$500 per week plus fringe benefits.  In light of the less-than-exact evidence,
we cannot say that the trial court was clearly erroneous in its determination
of Deborah's income.  
	[¶19]  Roger also asserts that the court erred in not imputing
additional  income to Deborah for (1) income that she may earn as a result of
Roger's payment to her for her marital interest in Safe Approach, Inc., and
(2) her receipt of the life insurance proceeds.  Contrary to Roger's
contentions, the District Court did not err in refusing to impute additional
income to Deborah.  To impute such income would be purely speculative. 
Deborah's only source of earnings at the time of the divorce hearing was
derived from her employment by Professional Graphics. 
	[¶20]  Roger also challenges the District Court's finding that his
income is approximately $65,000 per year.  To assist the court in its
determinations, Roger had an obligation to provide the court with clear and
complete evidence of his earning capacity.  Beattie v. Beattie, 650 A.2d 950,
953 (Me. 1994).  Roger is a fifty-percent (50%) owner of Safe Approach.  He
receives a base salary of $1,000 per week and employment benefits that
include the free use of a 1998 Ford Expedition, health insurance benefits,
vacation pay, and a liberal expense account.  Roger is also the owner of two
patents, the Hatch Net 120 and Hatch Net 121.  Prior to the divorce
hearing, he received royalties from Safe Approach for its use of the patents
through 1998.  Although Roger no longer receives royalties on account of his
patents, Safe Approach continues to benefit from the use of his patents.
	[¶21]  Roger's income from the Hatch Net royalties has steadily
increased over the years, with Roger receiving $8,957 in royalties from Safe
Approach in 1998.  Roger's 1998 tax return also shows that he received a
$10,000 bonus from Safe Approach.  Roger testified, however, that he has
received only one bonus from Safe Approach during the history of the
company.  In total, Roger's 1998 adjusted gross income was $72,550. 
	[¶22]  Based on the evidence presented at trial and the parties'
financial affidavits, the trial court did not commit a clear error in
determining that Roger's income was "in the vicinity of approximately
$65,000."  See Ramsdell, 1997 ME 14, ¶ 5, 688 A.2d at 921 (citing Quin,
641 A.2d at 181).
B.  Child and spousal support.
	[¶23]  Roger argues that the District Court erred in calculating child
and spousal support.  We review child support determinations for an abuse of
discretion.  Robinson v. Robinson, 2000 ME 101, ¶ 13, 751 A.2d 457, 460
(quoting Knight v. Knight, 680 A.2d 1035, 1037 (Me. 1996)).  The trial
court's judgment in such matters is entitled to "substantial deference."  Id.
	[¶24]  We are cognizant that, in the normal course of calculating child
support, the District Court will look at, and consider, all income, including
income from investments and employment.  We cannot speculate what
interest or principal Deborah will receive from Roger in satisfaction of the
court's order to pay her $56,000, or how Deborah will use principal
payments from Roger or the insurance proceeds.  Conceivably, Deborah
might use the insurance proceeds to satisfy all her outstanding debt.  In this
scenario there would be no additional income to impute to Deborah. 
	[¶25]  In the event that there is a substantial change in either parties'
income in the future, either party may seek to modify the child support
award at that time.{2}  See 19-A M.R.S.A. § 2009.  The District Court did not
err in declining to include potential income in its calculation of Deborah's
	[¶26]  Roger also argues that the District Court "abused its discretion
and erred as a matter of law when it refused to consider all sources of
income for Deborah when awarding" spousal support.  We note that the trial
court's judgment specifically stated that "the court has considered all the
factors contained in T19-A M.R.S.A. [sic] § 721(1)(A-O)."  Only in those
instances where the District Court "'has violated some positive rule of law or
has reached a result which is plainly and unmistakenly an injustice that is so
apparent as to be instantly visible without argument'" will we vacate the
District Court's spousal support award.  Sorey v. Sorey, 1998 ME 217, ¶ 8,
718 A.2d 568, 570 (quoting Ramsdell v. Ramsdell, 1997 ME 14, ¶ 5, 688
A.2d 918, 920-21)).  
	[¶27]  The District Court's authority with respect to spousal support
determinations was governed by 19-A M.R.S.A. § 951,{3} the statute then in
effect.{4}  The factors enumerated in 19-A M.R.S.A. § 951 gave the District
Court broad discretion when awarding spousal support.  Id. ¶ 11, 718 A.2d
at 570. 
	[¶28]  Relying on Eastman v. Eastman-Veres, 1997 ME 26, 690 A.2d
494, Roger argues that the court erred in not considering Deborah's various
sources of potential interest income when making its spousal support award.
In Eastman, the trial court properly included the former husband and his
current wife's interest income when determining alimony.  This case is,
however, distinguishable from Eastman.  In Eastman, the parties were
actually receiving interest income; in this case, Deborah is not currently
receiving interest income.
	[¶29]  A review of the factors listed in 19-A M.R.S.A. § 951 supports
the District Court's spousal support award.  Roger's projected income
appears, at a minimum, to be at least twice that of Deborah's.  In addition to
his base salary of $52,000 per year, the trial court found that Roger receives
substantial benefits from his company, including the free use of a vehicle and
a very liberal expense account, which reimburses him for meals,
entertainment, and travel expenses when he is "on the road" or
"entertaining" clients.  We conclude, therefore, that the District Court did
not err in awarding Deborah $150 per week in spousal support.
	[¶30]  Finally, Roger argues that the court exceeded the bounds of its
discretion in ordering him to pay a portion of Deborah's attorney fees. 
"When making a final decree, the court may order a party to pay reasonable
attorney's fees. . . ." 19-A M.R.S.A. § 952(3) (1998).  The determination of
whether to award attorney fees lies within the sound discretion of the trial
judge.  Largay v. Largay, 2000 ME 108, ¶ 16, 752 A.2d 194, 198.  We review
the trial court's award of attorney fees for an abuse of discretion.  Id.
(citation omitted).  
	[¶31]  "An award of attorney fees should 'be based on the parties'
relative capacity to absorb the costs of litigation' . . . and all relevant factors
that serve to create an award that is 'fair and just under the circumstances.'"
Id. (quoting Clum v. Graves, 1999 ME 77, ¶ 17, 729 A.2d 900, 907)
(emphasis omitted). 
	[¶32]  Roger's income, plus liberal fringe benefits, is nearly twice that
of Deborah's.{5}  In light of the facts of this case, the District Court did not
exceed the bounds of its discretion in obligating Roger to pay a portion of
Deborah's attorney fees.
	[¶33] Rogers other contentions are meritless and will not be
	The entry is:
Judgment affirmed.

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