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Williams v. Williams
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Decision:1998 ME 32
Argued:	January 6, 1998
Decided:February 13, 1998




	[¶1] Defendant Julianna Williams appeal from a judgment of the
Superior Court (Kennebec County, Alexander, J.).  On plaintiff Timothy
Williams' appeal, the Superior Court vacated a divorce judgment entered in
the District Court (Waterville, O'Rourke, A.R.J.) and remanded for further
consideration of parental rights and economic issues.  Julianna contends
that the District Court judgment is free from error and should be affirmed. 
Agreeing in part, we vacate the judgment of the Superior Court and remand
only with respect to a disputed savings account.
	[¶2] The relevant facts may be briefly summarized as follows: The
parties were married in 1990 and have one child, Timothy Williams, Jr. 
Divorce proceedings were commenced in September of 1994 and trial was
held on two separate days in October and November of 1995.  Judgment was
not entered until eleven months after the trial concluded.{1} The evidence
revealed that, although sober for over a year, Timothy has a history of alcohol
abuse.  He also admitted to experiencing difficulty with gambling. Julianna
testified that she was aware of plaintiff's drinking problem prior to marrying
him and that it continued on and off throughout the course of the marriage. 
She testified that on one occasion Timothy had physically abused her.  Four
professional witnesses provided somewhat mixed and conflicting
assessments of the parties' parenting skills.  
	[¶3] Julianna presented evidence of the existence of a savings account
in the name of Timothy, Jr. that she claimed as marital property.  The
account was derived from the proceeds of the sale of jointly-owned real
estate that had been purchased with Timothy's nonmarital funds. Julianna
testified that Timothy opened the bank account for their son because of
"something about the interest occurred [sic] and him being under 18 or
something, with [sic] tax purposes." Timothy denied that the account was
marital property, but acknowledged that he was the trustee for his son.  He
testified that he had withdrawn almost $20,000 from the account in the
three years preceding the trial and had used those funds to pay legal fees
and other business and living expenses.
	[¶4]  When issued, the divorce judgment was accompanied by
extensive findings of fact and included the provisions that are now the
subject of this appeal:  The award of sole parental rights and responsibilities
to Julianna; the award of alimony to Julianna; and the division of the savings
account as marital property.{2}  On appeal by Timothy, the Superior Court
concluded that the court had erred with regard to each of the foregoing
provisions and remanded for further proceedings.  At the time of the
remand, the trial judge had retired fully from the bench.  Julianna ignored
the remand and appealed to this Court.
	[¶5] Initially, Julianna acknowledges that her appeal is interlocutory,
but invokes the judicial economy exception to the final judgment rule.  As a
general proposition, a case is ripe for appellate review only when there is a
final judgment.  See Rosenbery v. Taylor, 685 A.2d 768, 769 (Me. 1996).  A
judgment is final when the court's decision fully decides and disposes of the
whole matter, leaving nothing further for the consideration and judgment of
the trial court.  See In re Erica B., 520 A.2d 342, 343-44 (Me. 1987).  In
recognition of the fact that the application of the final judgment rule is not
always appropriate, we have recognized a few narrow, well-defined
exceptions.  Rosenbery v. Taylor, 685 A.2d 768, 769 (Me. 1996).
	[¶6] The judicial economy exception is implicated "when the interests
of judicial economy dictate that the merits of the case should be addressed
immediately."  Department of Human Servs. v. Lowatchie, 569 A.2d 197,
199 (Me. 1990).  We apply this exception, however, only when the interests
of justice require an immediate review of the non-final order and the review
will "establish a final, or practically final, disposition of the entire litigation." 
	[¶7] The present litigation has been subject to inordinate delay.  The
complaint for divorce was filed in August of 1994 and trial was held more
than one year later.  For reasons beyond the control of the parties, eleven
months elapsed between the end of the trial and the court's judgment.  The
appeal to the Superior Court involved an additional five months, and resulted
in a remand that imposes a new trial of the entire case before a different
judge.  Due to the unique circumstances of this case and because it is
possible to finally resolve virtually every issue and avoid retrial, we accept
this interlocutory appeal in the interest of judicial economy.
	[¶8] The trial court has broad discretion in determining the custody of
minor children.  See also Gerber v. Peters, 584 A.2d 605, 607 (Me. 1990). 
We review the court's award of parental rights and responsibilities for an
abuse of discretion.  See El-Shafei v. Elshafei, 649 A.2d 1106, 1108 (Me.
1994).  The court is required to apply the best interests of the child
standard, 19-A M.R.S.A. § 1653(3) (Supp. 1997), and may award "allocated,"
"shared," or "sole," parental rights and responsibilities.  19-A M.R.S.A. §
1501 (Supp. 1997).  If the parents agree "to an award of shared parental
rights and responsibilities . . . the court shall make that award unless there
is substantial evidence that it should not be ordered." 19-A M.R.S.A. §
1653(2)(A) (Supp. 1997).
	[¶9] Both parties in the present case submitted proposed judgments
that included a provision for shared parental rights and responsibilities. 
The court, however, awarded sole parental rights and responsibilities to
Julianna.  Contrary to Timothy's contention, however, the court relied on
"substantial evidence" in making its determination.  The court specifically
found that Timothy was unstable, that he was uncooperative towards
Julianna, that he had difficulty with drinking and gambling, and that he had
been physically abusive.  The court noted expert testimony that Timothy was
overly dependent on others and would be an ineffective parent.  Based on
the evidence and its findings, the court did not abuse its discretion in
awarding sole parental rights and responsibilities to Julianna.
	[¶10] An award of alimony is controlled by the factors set forth in 19-A
M.R.S.A. § 951(1)(A-O) (Supp. 1997).  These include the length of the
marriage, the ability of each party to pay, employment history, income
history, the parties' education, retirement provisions, tax consequences,
economic misconduct, the health and disability of the parties and any other
factor the court deems appropriate.  Id.  In its judgment, the court ordered
Timothy to pay $200 monthly alimony for a period of two years and then $1
annually.  We review this award for an abuse of discretion.  See Pongonis v.
Pongonis, 606 A.2d 1055, 1058 (Me. 1992).
	[¶11] The court found that "as a result of Timothy's addiction to
gambling and drinking, there was economic misconduct on the part of
Timothy and this resulted in the consumption of considerable income
during their marriage, resulting in the diminution of marital property or
income." Furthermore, the court found that Timothy was in better financial
condition than Julianna.  Although his anticipated earnings for the tax year
were roughly equivalent to Julianna's, Timothy owned nonmarital rental
property and held a license to sell real estate.  Again, we find no abuse of
	[¶12] A major dispute between the parties was whether the savings
account in the name of their son was marital or nonmarital property.  The
court ruled that the account was marital and ordered a division.  The
Superior Court, relying on Dubord v. Dubord, 579 A.2d 257 (Me. 1990),
ruled that the account was nonmarital because it could be traced to a
nonmarital source.  Defendant asks that we reinstate the trial court's ruling
on the basis of our recent opinion in Long v. Long, 1997 ME 171, 697 A.2d
1317, overruling Dubord.  Neither of the courts nor the parties attach any
significance to the fact that the savings account stands in the name of the
minor son.  Although the issue has not been raised, we are compelled to
consider the obvious interest of the minor son.
	[¶13]  The Maine Uniform Transfers to Minor Act provides that when
funds are deposited in an account in the name of the transferror, followed,
in substance, by the words "as custodian for" a minor child, a custodial trust
for the benefit of the minor is created.  33 M.R.S.A. § 1660(1)(B) (Supp.
1997).  Here, the savings account contained the following designation:
"Timothy J. Williams, Jr. BY Timothy J. Williams, Sr., Cust." The transfer of
funds into such an account is irrevocable, and the custodial funds are
indefeasibly vested in the minor.  33 M.R.S.A. § 1662(2) (Supp. 1997).  As
custodian, plaintiff maintains certain rights and duties, 33 M.R.S.A. §§ 1663-
1666 (Supp. 1997), but the account could not be used for his benefit except
for reimbursement of reasonable expenses and compensation for services
performed.  33 M.R.S.A. § 1666(1) & (2) (Supp. 1997).  Neither can the
account be distributed as the marital property of the parties. Accordingly,
we vacate this provision in the court's divorce judgment and remand for
further consideration of the legal status of the account.{3}
	The entry is:
Judgment of the Superior Court vacated.  Remanded
with instructions to affirm the District Court
judgment with the exception of the provision
relating to the savings account, and to remand to the
District Court for further proceedings consistent
with the opinion herein.

Attorney for plaintiff: Robert E. Sandy, Jr., Esq., (orally) Sherman & Sandy P O Box 499 Waterville, ME 04903-0499 Attorney for defendant: Joseph M. Jabar, Esq., (orally) Daviau, Jabar & Batten One Center Street Watervillle, ME 04901-5495
FOOTNOTES******************************** {1} The judge, serving in an active retired capacity, experienced health problems. The judge has since retired fully from the bench. {2} The court found that the $40,226 balance on deposit at the time of separation was marital property. At the time of trial, the balance in the account was approximately $20,000. The court ordered Timothy to pay Julianna $17,713 as her share of the martial account. {3} On remand, the trial court may find it necessary to appoint a guardian ad litem for the minor child. If the account is finally determined to belong to the son, the award of marital property to Julianna must inevitably be reduced by $17,713. Such a significant change would ordinarily require reconsideration of all economic issues. In this case, however, there was no other significant marital property to be divided, nor was there sufficient income to support an increased award of alimony. If, in the final analysis, Timothy is liable for unauthorized expenditures from the son's account, and defendant is denied the martial award, the parties are left substantially in equipoise.