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Ketchum v. Kethcum
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 13 
Docket:	Som-99-264
on Briefs:	December 17, 1999
Decided:	January 27, 2000




	[¶1]  Irene Ketchum appeals from a judgment entered in the Superior
Court (Somerset County, Marsano, J.) granting Kenneth Ketchum's motion
for relief pursuant to M.R. Civ. P. 60(b)(5).  Irene argues that the trial court
erred when it concluded that Kenneth had satisfied his obligation to pay
Irene's attorney fees related to their divorce.  We affirm the judgment.
	[¶2]  This is the third time Irene and Kenneth have been before us
regarding the dissolution of their marriage.  The Ketchums were divorced by
a judgment of the Superior Court dated June 17, 1997.  In that divorce
judgment, the Superior Court divided the parties' marital property, ordered
Kenneth to pay Irene $125 per week as spousal support, and ordered
Kenneth to pay an additional $50 per week of spousal support "[i]n order to
equalize the distribution of the marital assets."  The court also ordered
Kenneth to pay $2000 as a contribution toward Irene's attorney fees.
	[¶3]  Irene appealed the judgment.  Because the $50 per week spousal
support award was actually in the nature of a property distribution, we
vacated the judgment and remanded it to the Superior Court.  See Ketchum
v. Ketchum, 1998 ME 62, ¶ 6, 707 A.2d 803, 805 (hereinafter
"Ketchum I").  On remand, the Superior Court declined to conduct further
evidentiary hearings, relying instead on the facts presented at the initial
hearings.  The resulting amended divorce judgment did not vary from the
first except in the method by which it addressed the property distribution. 
In the amended judgment, the court expressly found that the difference in
the property distribution totalled $27,312.  Concluding that an equal
distribution was also an equitable distribution, the court ordered Kenneth to
pay Irene "one-half of that difference, or $13,656.  That sum, without
interest, shall be paid within ninety (90) days after this judgment becomes
final and if not paid within that period of time, shall bear interest thereafter
at the post-judgment rate fixed by statute."  
	[¶4]  Irene then appealed that judgment, arguing that the trial court
erred in valuing the marital property and in refusing to hold an additional
evidentiary hearing.  We affirmed the amended divorce judgment.  See
Ketchum v. Ketchum, No. 98-176 (Me. Dec. 15, 1998) (mem.) (hereinafter
"Ketchum II").
	[¶5]  Shortly thereafter, a Writ of Execution was entered against
Kenneth in the amount of $1000 in favor, not of Irene, but of one of her
previous attorneys, on the basis of the outstanding judgment against
Kenneth for contribution to Irene's attorney fees.  Kenneth filed a motion
pursuant to M.R. Civ. P. 60(b)(5) seeking relief from the writ, arguing that he
had satisfied his entire obligation to contribute to Irene's attorney fees by
paying the $2000 directly to Irene.  Specifically, Kenneth argued that he
satisfied both his obligation to pay attorney fees and his obligation to pay
$13,565 in property settlement because he assigned his $12,000 bank
account to Irene and paid her $50 per week from June of 1997 until
January of 1999.  These weekly payments totalled over $4000.  In total, he
asserted that he had paid her approximately $16,000, several hundred
dollars more than the $15,565 to which she was entitled.  Kenneth also
argued that the attorney had no right to seek the writ because Kenneth's
obligation under the judgment ran only to Irene.  The Superior Court
granted the motion for relief, concluding that Kenneth's obligation was to
Irene only and that he had fully satisfied his obligation to pay the attorney
fees.  This appeal followed.
	[¶6]  Irene urges us to conclude that the court erred when it
determined that Kenneth's weekly $50 payments to her accrued to satisfy
his property distribution and attorney fees obligation.  It is her position that
the four thousand dollars paid to her over the course of approximately
eighteen months was entirely "voluntary" and thus cannot be attributed to
Kenneth's legal obligations under the divorce judgment.  In pressing this
argument, Irene relies on our analysis in Roberts v. Roberts, 1997 ME 138, 
697 A.2d 62, where we held that it was error for the court to credit certain
alternate payments made by the obligor against his responsibility under the
divorce judgment to make monthly cash spousal support payments.  See id.
¶ 8, 697 A.2d at 64.
	[¶7]  We review the trial court's action in ruling on a motion filed
pursuant to Rule 60(b) for abuse of discretion.  See Madore v. Maine Land
Use Regulation Comm'n, 1998 ME 178, ¶ 15, 715 A.2d 157, 161-62.  If the
court has "correctly understood all material factors relevant to the exercise
of its discretion, we will not disturb its decision unless the court has made a
'serious mistake' in weighing those factors."  Id. at 162 (quoting West Point-
Pepperell, Inc. v. State Tax Assessor, 1997 ME 58, ¶ 7, 691 A.2d 1211,
1213).  Here the material factors relevant to the court's decision included
the amount that Kenneth had paid to Irene and whether that amount could
be credited against Kenneth's court-ordered obligations to Irene. 
Determination of the latter required the court to examine the circumstances
under which the payments were made.
	[¶8]  There are three distinct periods of time during which Kenneth
made the $50 per week payments.  First is the period following entry of the
initial divorce judgment through the entry of the mandate after appeal in
Ketchum I (June 16, 1997-March 5, 1998:  $1900).  Next is the time
between the entry of the mandate and the entry of the amended divorce
judgment (March 5, 1998-May 14, 1998:  $500).  Finally, there is the period
between the entry of the amended divorce judgment and the date Kenneth
stopped making the weekly payments (May 14, 1998-January 1999: 
	[¶9]  When Kenneth began making those $50 payments, he did so
pursuant to the first divorce judgment.  The payments were ordered by the
court "[i]n order to equalize the distribution of the marital assets of the
parties."  Because the court had labeled the payments "alimony," Kenneth
was not relieved of the obligation to make the payments during the
pendency of the first appeal.  See M.R. Civ. P. 62(a) (judgment relating to
separate support not stayed during pendency of appeal).  Accordingly, not
only were his payments not voluntary, Kenneth could have been subjected to
enforcement proceedings or a contempt finding had he failed to make the
payments.  See id.; M.R. Civ. P 66(a)(2)(A)(ii).  
	[¶10]  Similarly, in the final timeframe, that is, the period following
the entry of the amended divorce judgment, Kenneth was again under a
court order to pay a total of $13,656 to Irene.  By continuing to make the
$50 payments, he was acting in partial satisfaction of the amended
judgment.  Although the payments were not for spousal support and may not
have been enforceable during the pendency of Irene's second appeal, they
were made pursuant to an outstanding order of the court.  To categorize
such payments as "voluntary," as the term was used in Roberts, reflects a
fundamental misapprehension of the concept addressed in Roberts, as
addressed below.  In addition, Irene's request that the trial court deny
Kenneth credit for payments made during the pendency of her appeal runs
entirely counter to the goal of encouraging parties in these situations to
maintain the status quo notwithstanding the pendency of an appeal.  
	[¶11]  Ultimately then, it was only during the brief interim period,
after the entry of the mandate following our decision in Ketchum I, but
before the entry of the amended judgment, that Kenneth's payments were
not made pursuant to a specific order of the court.{1}  Nonetheless we
conclude that those payments were not "voluntary" as we used that term in
	[¶12]  In Roberts, we addressed a situation where an obligor spouse
failed to make spousal support payments of over $22,000.{2}  See Roberts.
1997 ME 138, ¶ 5, 697 A.2d at 64.  When faced with a contempt charge,
the obligor argued that his true obligation had been reduced to under
$10,000 because he had made several indirect payments.{3}  See id.  We
concluded that because his payments were essentially unilateral
modifications of the spousal support they were voluntary and thus could not
be used as a credit against any spousal support owed.  See id. ¶¶ 7-12, 697
A.2d at 64-66.  Our analysis there focused on the unilateral nature of the
proffered alternative payments.  Allowing an obligor spouse to determine,
contrary to the express terms of the divorce judgment, how, when, and in
what form a spousal support award will be satisfied would have the
detrimental effect of interfering with the predictability of cash income
available to support the obligee.  The obligor's actions in Roberts were
directly at odds with the court's order requiring periodic payments in cash
for the support of the obligee.
	[¶13]  Kenneth's actions in the matter at bar are in sharp distinction
to those of the obligor spouse in Roberts and do not implicate the policy
concerns underpinning our opinion in Roberts.  The obligor spouse's actions
in Roberts left the obligee spouse without the "financial assurance" intended
by the court order, thereby stripping the obligee spouse of the security of
knowing that sum-certain periodic payments would be forthcoming.  In
contrast, Kenneth made consistent weekly cash payments under court
orders in varying stages of finality and enforceability.  These payments were
not "voluntary" in the sense addressed in Roberts.  The fact that Irene
appealed both of the divorce judgments does not deprive Kenneth of credit
for payments made pursuant to those judgments during the pendency of the
appeals.{4}  Accordingly, the court did not err in determining that the
payments made to Irene in $50 weekly increments should be applied
against Kenneth's court-ordered obligations to her.
	[¶14]  Irene also argues that the court erred when it found that
Kenneth had been ordered to pay Irene directly in contribution to her
attorney fees, rather than the attorneys.  We find no error in the court's
conclusion on that issue or on its denial of attorney fees to Irene related to
Kenneth's Rule 60(b) motion.  Finally, not only were the court's findings and
conclusions amply stated on the record, the court committed no error in
declining to enter findings of fact and conclusions of law.  See M.R.
Civ. P. 52(a) ("Findings of fact and conclusions of law are unnecessary on
decision of motions . . . ."). 
	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: Robet J. Ringer Jr., Esq. Daviau, Jabar & Batten One Center Street Waterville, ME O4901-5495
FOOTNOTES******************************** {1} . Similarly, the spousal support obligation of $125 per week, included in the first judgment, was effectively vacated by action of the mandate in Ketchum I. Kenneth continued to make those payments nonetheless, thereby eliminating the need for Irene to seek an interim court order requiring spousal support or to be without spousal support pending hearing on remand. {2} . Although required by the divorce judgment to make monthly payments in the amount of $400 to his ex-wife, Roberts had made only six payments over a course of almost six years. See Roberts v. Roberts, 1997 ME 138, ¶ 5, 697 A.2d 62, 64. {3} . In addition to being ordered to pay spousal support, the obligor spouse was ordered to purchase a car valued at $5200 for the obligee spouse, to continue to cover the obligee spouse on his insurance, and to loan $7600 to a daughter so that she could purchase the marital home. See Roberts, 1997 ME 138, ¶ 5, 697 A.2d at 64. The obligor spouse paid $7,413.75 for the obligee spouse's vehicle, and paid an additional $931.76 for her insurance. See id. He also assigned the $7600 note to the obligee spouse such that she would receive repayment from the daughter whenever payments were made. {4} . The court also correctly concluded that the parties' tax treatment of the $50 payments, which may have created a "slight income tax problem" as a result of the label assigned to the payments in the first judgment, was not relevant on the issue of whether the payments would be credited to his obligation to pay attorney fees.