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Tibbetts v. Tibbetts

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 210
Docket:	Lin-00-255	
on Briefs:	October 26, 2000
Decided:	December 6, 2000



	[¶1]  Samuel R. Tibbetts appeals from the judgment entered in the
Superior Court (Lincoln County, Atwood, J.) affirming in part the divorce
judgment entered in the District Court (Wiscasset, Foster, J.).  Samuel
argues that the District Court erred by entering a judgment that obligates
him to pay more than he is able and by requiring him to pay the judgment
within an unrealistic time frame.  He also argues that the Superior Court
erred in reviewing the divorce judgment.  We affirm in part and vacate in
	[¶2]  In 1996, the District Court granted Deborah A. Tibbetts a
divorce from Samuel.  In the divorce judgment, the court provided that both
parties would share parental rights and responsibilities with regards to their
two minor children.  It ordered, however, that Deborah would provide their
primary physical residence and that Samuel would pay $126 per week in
child support.  The court also ordered Samuel to pay $250 per month in
spousal support.  In doing so, it considered the length of the marriage;
Deborah's devotion of some of her potential wage-earning years to rearing
the children; her role early in the marriage as the primary wage earner; her
modest income as a relatively new entrant in the work force; her interest,
ability, and perseverance in furthering her education; and her uncertain
retirement security.  
	[¶3] In addition, because the court found that both parties
contributed equally, in funds or labor, to the marital home, it divided the
home's value, $59,500, equally between the parties.  The court set aside the
property, which was surrounded by property owned by Samuel's family, to
Samuel.  It set aside personal property valued at $6055 to Samuel and
personal property valued at $4276 to Deborah.  It required Samuel to
assume the entire amount of marital debt, $12,287, but credited one-half of
that liability against Deborah's share of the value of the marital home.  Thus
reduced, Deborah's share totaled $24,497.  The court ordered Samuel to
pay that amount within ninety days of the entry of judgment.  
	[¶4]  In a subsequent motion for findings of fact, Samuel requested
that the court make findings regarding his ability to pay spousal support and
Deborah's interest in the marital home within ninety days.  Specifically, he
asserted that there was "uncontroverted evidence that he has no savings and
is unable to mortgage the house and land due to his father's position."  
Samuel's father, as joint owner of the land on which the marital residence
was located, testified that he would never allow Samuel to mortgage the
property.  The court, however, explained that although Samuel's father was
clearly opposed to mortgaging the property, "there was not evidence that
[Samuel] had made any attempt to partition the property or to mortgage his
interest in it."  
	[¶5]  Samuel appealed.  The Superior Court found that the District
Court's order that Samuel pay $24,497 within ninety days was a plain
injustice because it would be nearly impossible for him to comply.  It
affirmed the judgment in all other respects and remanded the case to the
District Court "for the sole purpose of entering an order for the defendant
to pay the plaintiff for her interest in the parties' marital residence under
terms that are realistic and just."  On remand, the District Court reduced
the amount of Deborah's award to reflect her use of the residence, found
that Samuel had no current ability to pay the judgment, and left Deborah
with her civil remedies to collect on the judgment.  Both parties appealed. 
The Superior Court reinstated the original amount of the award and found
that leaving Deborah to collect with her civil remedies was a realistic and
just mechanism for payment.  Samuel then appealed to this Court.
	[¶6]  "Issues arising out of a divorce action, such as property division
[and] alimony . . . are within the court's sound discretion . . . and the
judgment of the [trial] court on such matters is entitled to substantial
deference."  Quin v. Quinn, 1997 ME 131, ¶ 3, 696 A.2d 432, 433 (internal
quotations omitted) (omissions in original).  Thus, we review the trial
court's findings of fact for clear error and do not disturb an alimony award
or property division "unless it violates a positive rule of law or reaches a
plainly and unmistakably unjust result."  Beattie v. Beattie, 650 A.2d 950,
951 (Me. 1994).  Such an injustice must be "instantly visible without
argument."  St. Heart v. Abbott, 1998 ME 67, ¶ 7, 707 A.2d 1322, 1324
(quoting Schultz v. Dellaire, 678 A.2d 46, 47 (Me. 1996)).  
	[¶7]  Some of the issues that Samuel presses on appeal arise from
intermediate rulings of the Superior and District Courts.  We, however,
review directly the District Court's divorce judgment when the other courts
act as intermediate appellate tribunals.  See Quin, 1997 ME 131, ¶ 3, 696
A.2d at 433.  Therefore, we consider only those issues that Samuel presents
arising from the divorce judgment itself. 
	[¶8]  Samuel argues that the financial obligations of the divorce
judgment as a whole and the award of spousal support in particular are
plainly and unmistakably unjust because they exceed his ability to pay.  He
argues that the combined court ordered payments for the first three months
following the divorce judgment would be approximately $28,635 while his
income would only be $5000.  He also maintains that even without being
required to pay Deborah for her interest in the marital home, his weekly
budget, less court ordered debt, alimony, and child support payments,
would be only $78.52 per week.{1}  
	[¶9]  Samuel relies primarily on Beattie v. Beattie, 650 A.2d 950 (Me.
1994).  In Beattie, we found that the District Court's orders dividing marital
property, including debts, and awarding alimony to the wife had a
"cumulative effect" that was plainly and unmistakably unjust even though
each order could be supported independently.  Id.  at 953.  The Superior
Court had ordered the husband to pay substantially all of the parties' debts
and $1000 per month in alimony.  Id. at 951-52.  The combined obligation
of $3200 exceeded the husband's monthly income of $2525.  Id.  When both
parties were working, the disparity in their incomes was not significant; the
husband earned approximately $27,000 per year and the wife approximately
$22,300.  Id. at 952.  Thus, we found that the judgment was unjust "[i]n
light of the parties present earning capacity and the ability of each to obtain
and retain employment."  Id. at 953.  
	[¶10]  The present case, however, differs from the Beattie case in at
least three important ways.  First, there is a significant difference between
the parties' incomes.  At the time of the divorce, Samuel earned $29,547
per year, and Deborah earned $16,944 per year.  Second, the court divided
the parties' property and debt burden equally.  It awarded Deborah $4276
worth of personal property and Samuel $6055.  It ordered Samuel to pay the
entire amount of the marital debt, $12,287, but offset one-half of that
amount against Deborah's share of the value of the marital home.  The court
awarded use and ownership of the home to Samuel but required him to pay
one-half of its value to Deborah, less her share of the marital debt.{2}  Third,
Samuel has an ability, though limited, to pay the judgments.  Samuel works
full time at Bath Iron Works and earns approximately $30,000 per year. 
Although he claims that he will be left with only $78.52 per week if he is
required to meet his obligations, both parties will be working within
restricted budgets.  Deborah, who earns approximately $16,944 per year,
will be the primary care provider of the children and will have to find a new
home.  Furthermore, Samuel's unwillingness to take the steps necessary to
sell or mortgage the marital home in order to pay Deborah her share of its
value does not show that he is unable to pay.  In light of the significant
disparity in the parties' incomes, the essentially equal division of the marital
property, and Samuel's ability, though limited, to pay the awards, the
financial obligations of the divorce judgment as a whole and the award of
spousal support in particular are not plainly and unmistakably unjust.  Cf.
Beattie, 650 A.2d at 953 (holding that combined obligation of $3200 that
exceeded husband's monthly income of $2525 is unjust in light of the
parties' similar earning capacities); Jacobs v. Jacobs, 507 A.2d 596, 600-01
(Me. 1986) (upholding divorce judgment even though husband claims that it
consumes 80% of his net income). 
	[¶11]  In the divorce judgment, the District Court ordered Samuel to
pay Deborah the amount of her interest in the marital home, $24,497,
within ninety days of the entry of judgment.{3}  Samuel appealed to the
Superior Court, arguing that this requirement is plainly and unmistakably
unjust because he is unable to pay the judgment.  He maintains that he does
not have the present ability to pay and that he is unable to mortgage the
property because his father, as joint owner of the land upon which the home
was built, will not allow him to do so.  We disagree and vacate that portion of
the judgment entered in the Superior Court finding that the ninety-day
requirement is in error. 
	[¶12]  The power of the District Court to divide marital property
includes the power to order a particular method of payment.  See Prue v.
Prue, 420 A.2d 257, 259 (Me. 1980).  The method chosen should lend
finality in the financial interaction of the parties.  Berry v. Berry, 658 A.2d
1097, 1099 (Me. 1995).  In the present case, the District Court's
requirement that Samuel pay within ninety days gives adequate finality to
the financial relationship between the parties and is not an abuse of
discretion.  See Long v. Long, 1997 ME 171, ¶ 23, 697 A.2d 1317, 1325
(upholding requirement that husband pay within specific time frame even
though husband claimed that he could not obtain bank loan in time).  Samuel
and his father's unwillingness to mortgage or otherwise extract value from
the property within a specific timeframe does not amount to a plain and
unmistaken injustice that is instantly visible without argument.  See St.
Heart, 1998 ME 67, ¶ 7, 707 A.2d at 1324.
	The entry is: 
Judgment of the Superior Court vacated
in  part.  Remanded with instructions to
affirm the original divorce judgment
entered in the District Court.

Attorney for plaintiff: Robert B. Cumler, Esq. Cumler & Lynch P O Box K Waldoboro, ME 04572-0912 Attorneys for defendant: Gregory J. Farris, Esq. Sean M. Farris, Esq. Farris, Heselton, Ladd & Bobrowiecki, P.A. P O Box 120 Gardiner, ME 04345-0120
FOOTNOTES******************************** {1} . Samuel presented the same calculations to the District Court in his Motion for Findings of Fact. The District Court noted that the calculations are "misleading in many ways" because many of the debts included had been offset by reductions in the assets awarded to Deborah under the divorce judgment and that the calculations are not a matter of evidence but, rather, "after-the-fact" assertions. {2} . Samuel argues that because his father is a joint owner of the land upon which the home was built, he is also a joint owner of the home itself. Thus, he maintains that by awarding one-half of the value of the home to Deborah, the court, in effect, awarded her all of the marital equity. As a general rule, "whatever is affixed to the realty is thereby made parcel thereof, and belongs to the owner of the soil." Bonney v. Foss, 62 Me. 248, 251-52 (1873). However, if the owner of the soil expressly or impliedly agrees, "[a] building of a permanent character can be held by another as personal property with the right of removal." Sutton v. Frost, 432 A.2d 1311, 1313 (Me. 1981). In the present case, the issue of whether the home is real property owned by Samuel and his father or personal property belonging to Samuel and Deborah would have to be determined in a separate legal proceeding in which Samuel's father would be a necessary party. Nonetheless, even if Samuel's father is entitled to joint ownership of the home, the court acted within its discretion to "divide the marital property in proportions the court considers just," by dividing the value of the home equally between the parties. See 19-A M.R.S.A. § 953(1) (1998). {3} . The concern about the short period of time allowed for payment has been rendered somewhat academic by the four-year delay involved in the various appeals.