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Cross v. Cross
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 147
Docket:	Pen-98-619	
on Briefs:	September 29, 1999
Decided:	October 25, 1999




	[¶1]  Debora Cross appeals from the judgment of the Superior Court
(Penobscot County, Mead, J.), which affirmed the entry of summary
judgment by the District Court (Bangor, Russell, J.) against her post-
judgment motion to divide omitted property pursuant to 19-A M.R.S.A.
§ 953(9) (1998).  Debora Cross alleges that during her marriage to Brent
Cross and at the time of their divorce, Brent Cross owned an interest in the
Woodrow W. Cross Agency, Inc. (the Cross Agency) that was subject to
division as marital property, but was omitted from the District Court's
original divorce order.  
	[¶2]  In 1992, Debora Cross and Brent Cross were divorced by
judgment of the District Court.  In 1996, Debora Cross moved pursuant to
19-A M.R.S.A. § 953(9) for division of Brent Cross's stake in the Cross
Agency.  Claiming that he had no such interest, Brent Cross filed a motion
for summary judgment which the District Court granted and the Superior
Court affirmed. 
	[¶3]  When the Superior Court acts as an intermediate appellate
court, we review directly the decision of the District Court rather than the
decision of the Superior Court.  See Melanson v. Matheson, 1998 ME 117,
¶ 6, 711 A.2d 147, 148; Williams v. Williams, 444 A.2d 977, 978 (Me.
 	[¶4]  The District Court found that "any alleged interest in the
Woodrow W. Cross Agency is not omitted property within the meaning of
Title 19 M.R.S.A. Section 722-A(6)," now 19-A M.R.S.A. § 953(9). The
omitted property statute provides:  
If a final divorce decree fails to set apart or divide marital
property over which the court had jurisdiction, the omitted
property is deemed held by both parties as tenants in
common.  On the motion of either party, the court may set
aside or divide the omitted property between the parties, as
justice may require. 
19-A M.R.S.A. § 953(9) (1998).  
	[¶5]  Interpreting section 953(9), we have held that property
actually considered by the divorce court, although not expressly disposed of
in its order, is not necessarily omitted property.  See Carr v. Carr, 656 A.2d
743, 744 (Me. 1995).  
	[¶6]  The transcript of the 1992 trial in this case reflects that the
question of whether Brent Cross owned an interest in the Cross Agency was
brought to the divorce court's attention in 1992.  Debora Cross questioned
Brent Cross regarding why the shareholder agreement did not constitute
proof of his ownership in the corporation.  Brent Cross presented evidence
demonstrating that he had no ownership interest.  Just prior to resting,
Debora Cross discussed with the court subpoenas that had been served to
obtain documents and testimony regarding the question of Brent Cross's
stock ownership.
	[¶7]  Because the issue of whether Brent Cross had an ownership
interest in the Cross Agency was addressed in the 1992 proceedings, the
District Court was correct in ruling that any alleged ownership interest in
the Cross Agency was not omitted property.  The fact that the 1992
judgment did not address any ownership interest in the Cross Agency leads
to the inference that the court concluded that Brent Cross had no
ownership interest in the Cross Agency.  A property interest which the trial
court inferentially decided did not exist is not omitted property open to
relitigation under 19-A M.R.S.A. § 953(9).
	The entry is:
			Judgment affirmed.

Attorney for the plaintiff: David J. Van Dyke, Esq. Berman & Simmons, P.A. P O Box 961 Lewiston, ME 94243-0961 (plainitff was pro se below) Attorney for the defendant: Amy Faircloth, Esq. Pelletier & Faircloth 43 Columbia St. Bangor, Maine 0440l