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Sorey v. Sorey
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Decision:	1998 ME 217
Docket:	Wal-98-42	
On Briefs:	September 2, 1998
Decided:	September 23, 1998




	[¶1]  Donald Sorey appeals from a judgment of the Superior Court
(Waldo County, Marsano, J.) denying his appeal from an amended divorce
judgment (Belfast, Staples, J.) entered after appeal and remand from the
Superior Court (Waldo County, Alexander, J.).  On appeal, Mr. Sorey argues
that the award of spousal support was patently unjust; that the division of
marital property was erroneous; that the order to maintain Ms. Sorey as
beneficiary of a life insurance policy was erroneous; and that the original
judgment by the District Court should be reinstated.  We affirm the
I. Background
	[¶2]  The Soreys were married in 1962.  They have three children
who are now adults.  In 1992, Mr. Sorey filed a complaint for divorce. 
Following trial, the District Court entered a divorce judgment finding, inter
alia, that Ms. Sorey was employed part-time as a real estate broker, earning
between $10,000 and $13,000 per year, "with a significant earning
potential if she would accept full-time employment," and that she
"suffer[ed] from a multitude of physical problems," which did not "curtail or
impact upon her ability to work full time as a broker."  It also found that the
value of the marital home was "between $72,000 and $125,000."  The court
awarded Ms. Sorey $1,200 per month in spousal support for a period of two
years or the death or remarriage of Ms. Sorey, whichever occurred first. 
The court also attempted to divide the marital property equally.  
	[¶3]  After the court denied her post-trial motions, Ms. Sorey appealed
the judgment to the Superior Court, which vacated the property division
along with the spousal support award because of the uncertainty inherent in
the court's property valuation.  The court remanded the matter to the
District Court for the court to establish the value of the marital home more
precisely, to divide the marital property, and to award spousal support "as it
deem[ed] appropriate in accordance with the provisions of law."  It left the
decision on whether to take additional evidence to the discretion of the
District Court.
	[¶4]  Upon remand, the District Court held a hearing at which it took
new evidence.  In the resulting amended divorce judgment, the court found
that the marital home had a value of $81,000 of which $65,000 was equity;
divided the marital property; found, contrary to the findings in its first
judgment, that Ms. Sorey was employed full-time, probably at her maximum
potential, as a real estate broker earning approximately $10,000 per year;
and ordered Mr. Sorey to pay $2,000 per month in spousal support until her
death, remarriage, or cohabitation.  After another limited remand for
clarification, the court also ordered Mr. Sorey to maintain a life insurance
policy designating Ms. Sorey as irrevocable beneficiary.  
	[¶5]  Mr. Sorey appealed to the Superior Court, which denied his
appeal.  From that judgment, Mr. Sorey appeals.
II. Appeal from the First Divorce Judgment
	[¶6]  We first address Mr. Sorey's contention that the Superior Court
erred when it vacated the original judgment of the District Court.  Ms. Sorey
argues that the first decision of the Superior Court is not before us.  Contrary
to her contention, however, Mr. Sorey could not have immediately appealed
the Superior Court's first decision, which remanded the case to the District
Court, because in such cases, "[i]f the issue which the parties seek to
present to this court might be affected by the action taken pursuant to the
remand order, we will usually refrain from entertaining the appeal." 
Wheeler v. Maine Unemployment Ins. Comm'n, 477 A.2d 1141, 1145 (Me.
1984).  Therefore, this issue is now properly before us as an appeal from a
final judgment.  See In re Erica B., 520 A.2d 342, 343-45 (Me. 1987); see
also Melanson v. Matheson, 1998 
ME 117, 711 A.2d 147, 148.  
	[¶7]  Nevertheless, reviewing the first divorce judgment of the District
Court directly, as we do whenever the Superior Court acts as an
intermediate appellate court, see Page v. Page, 671 A.2d 956, 957 (Me.
1996), we conclude that the uncertainty of the property values contained in
that judgment required that the judgment be vacated and remanded for
further consideration to the District Court.  Consequently, the Superior
Court did not err when it did just that.
III. Spousal Support
	[¶8]  Only if the 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 trial
court's spousal support award.  See Ramsdell v. Ramsdell, 1997 ME 14, ¶ 5,
688 A.2d 918, 920-21 (quoting language originally attributed to Bryant v.
Bryant, 411 A.2d 391, 395 (Me. 1980)).  Mr. Sorey asserts both that the
court erred as a matter of law when it set out to provide approximately equal
income to the parties and that its award of $2,000 per month was unjust.
	[¶9]  We first address the court's reference to equal incomes between
the parties.  When the Superior Court vacated and remanded the first
judgment, it noted that "the District Court was evidently attempting a
relatively equal distribution of property and income."  The District Court
responded to that finding by including the following language in the second
judgment:  "It is still this court's intent to divide the marital property
equally and to provide for nearly equal incomes . . . ."  Mr. Sorey argues that
this exchange demonstrates that the District Court considered an improper
factor--a desire to equalize the parties' incomes--when it calculated the
spousal support award.
	[¶10]  If the District Court had simply set out to equalize the parties'
incomes, without regard to the statutory factors, Mr. Sorey's argument
would be more compelling.  Here, however, the resulting similar incomes
are a consequence of the court's application of the statutory factors to the
facts before it.  Among the factors the court was required to consider were
"[t]he length of the marriage," "[t]he ability of each party to pay," "[t]he
income history and income potential of each party," and "[t]he standard of
living of the parties during the marriage."  19 M.R.S.A. § 721(1) (repealed,
effective Oct. 1, 1997).{1}  The court was also authorized to consider "[a]ny
other factors the court consider[ed] appropriate."  See id. § 721(1)(O).
	[¶11]  These factors provide a trial court with extremely broad
discretion to do justice in individualized circumstances, but do not provide
explicit guidance on what the court should do in specific circumstances.{2} 
While it is axiomatic that a court must do justice and act reasonably, in the
context of spousal support determinations neither of these concepts is
susceptible of explicit delineations that will assure justice in all cases.  The
extraordinary range of factual differences among cases in which spousal
support awards are sought requires flexibility in the application of the
statutory considerations.  The court must therefore use its best judgment in
applying the statutory factors in a fashion that will do justice under the
circumstances before it.  For this reason, a "divorce court is vested with
broad powers to order one spouse to pay [spousal support] to the other if the
amount is reasonable and takes into account the paying spouse's ability to
pay."  Gray v. Gray, 609 A.2d 694, 698 (Me. 1992) (citing Jacobs v. Jacobs,
507 A.2d 596, 600 (Me. 1986)). 
	[¶12]  Here the trial court considered the factors listed under the
applicable statute and expressly found, inter alia, that the parties had been
married for over 31 years;{3} that Mr. Sorey has an income of $60,700; that
Mr. Sorey's present wife's income and resources were sufficient, although
barely so, to meet her own needs;{4} that Ms. Sorey's income was $10,000
per year; that "she has reached her maximum potential as a real estate
broker"; and that "her education and training do not admit to a higher
income potential."{5}  The court was also cognizant of the tax consequences of
its order and the significant impact that the award of spousal support would
have on Mr. Sorey's finances. 
	[¶13]  When the court has appropriately considered the factors
established by the Legislature, no positive rule of law prohibits a court from
considering the justice or fairness of equalizing income between the parties
in its determination of a spousal support award.  See generally Beattie v.
Beattie, 650 A.2d 950, 952 (Me. 1994) (dicta) ("While a court need not
divide . . . income equally, it must do so equitably.").  Here, it was within the
court's discretion to conclude that a reasonable and just award of spousal
support would be one that provided for incomes that were approximately
	[¶14]  Mr. Sorey also argues that the evidence was insufficient to
support an award of $2,000 per month in spousal support and that the
award was patently unjust.  However, "[a]s long as there is rational or
credible evidence in the record supporting the divorce court's decision, the
judgment will not be overturned on appeal."  Knight v. Knight, 680 A.2d
1035, 1037 (Me. 1996).  The court had before it evidence of Ms. Sorey's
needs, Mr. Sorey's ability to pay, and the history of the parties' lifestyle
during their lengthy marriage.  Mr. Sorey does not persuasively assert that
he cannot pay the awarded spousal support.  Rather, he contends that the
court erroneously accepted Ms. Sorey's testimony regarding her current
needs and that her income potential is greater than the court determined it
to be.  Where there is competent evidence in the record to support the
court's findings, we will not disturb the factual findings of the court.  See
Pongonis v. Pongonis, 606 A.2d 1055, 1057-58 (Me. 1992).  Based on those
factual findings, the award of spousal support fell within the broad discretion
accorded to the court.
	[¶15]  Finally, we discern no error in the court's valuation and
distribution of the marital property, or in its order requiring Mr. Sorey to
maintain a life insurance policy designating Mrs. Sorey beneficiary until she
remarries, cohabits, or predeceases Mr. Sorey.
	The entry is:
Judgment affirmed.

Attorney for plaintiff: Martha J. Harris, Esq. Paine Lynch & Harris, P.A. P O Box 1451 Bangor, ME 04402-1451 Attorney for defendant: Sandra Hylander Collier, Esq. P O Box 1391 Ellsworth, ME 04605
FOOTNOTES******************************** {1} . This section was repealed and replaced by a comprehensive rewriting of the Domestic Relations law. See P.L. 1995, ch. 694, § B-2 (effective Oct. 1, 1997). The complete list of factors the court was required to consider under the applicable statute were as follows: A.The length of the marriage; B. The ability of each party to pay; C. The age of each party; D. The employment history and employment potential of each party; E. The income history and income potential of each party; F. The education and training of each party; G. The provisions for retirement and health insurance benefits of each party; H.The tax consequences of the division of marital property, including the tax consequences of the sale of the marital home, if applicable; I. The health and disabilities of each party; J.The tax consequences of an alimony award; K.The contributions of either party as a homemaker; L.The contributions of either party to the education or earning potential of the other party; M.Economic misconduct by either party resulting in the diminution of marital property or income; N.The standard of living of the parties during the marriage; and O.Any other factors the court considers appropriate. The current version of the spousal support statute set out at 19-A M.R.S.A. § 951(1) (1998) is identical to former section 721 except that it replaces the term "alimony" with the phrase "spousal support." {2} . See generally John C. Sheldon & Nancy Diesel Mills, In Search of a Theory of Alimony, 45 Me. L. Rev. 283 (1993). The authors note that "anyone who reads the [alimony] statute looking for a reason for awarding alimony will search in vain." Id. at 284. {3} . The court made specific findings regarding each factor in its first divorce judgment. Those findings were implicitly restated in the amended judgment to the extent not deleted or amended. Because of the potential for confusion, it would be a better practice for the court to reissue its findings with the changes incorporated. {4} . During the extended pendency of these proceedings, the trial court separately granted a divorce judgment to the parties. Neither party has challenged that process, and we are not called upon to address it here. {5} . The court made explicit findings regarding Ms. Sorey's financial needs in its first judgment but deleted those findings and made no such explicit findings in its amended judgment. Where no request for findings was made, we will assume that the court found that the amount awarded was necessary to meet her needs. See Murray v. Murray, 529 A.2d 1366, 1368 n.1 (Me. 1987), cited with approval in Bayley v. Bayley, 602 A.2d 1152, 1154 (Me. 1992).