MAINE SUPREME JUDICIAL COURT                                     Reporter of Decisions
Decision:    2020 ME 15
Docket:      Kno-19-333
Submitted
  On Briefs: January 23, 2020
Decided:     January 30, 2020

Panel:       ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.



                                 SARAH B. MCLEAN

                                          v.

                                 IAN R. ROBERTSON


PER CURIAM

         [¶1] Ian Robertson appeals from a judgment of the District Court

(Rockland, Mathews, J.) determining his and Sarah McLean’s parental rights and

responsibilities as to their son. See 19-A M.R.S. § 1653 (2018). He contends

that the court erred in (1) calculating McLean’s gross income by failing to

account for fringe benefits that McLean receives in the course of operating the

business she owns; (2) imputing income to Robertson for a sixteen-day period

during which he was incarcerated; and (3) ordering Robertson to pay McLean

$6,000 toward her attorney fees. We vacate the judgment in part and remand

for further proceedings.
2

                               I. CASE HISTORY

      [¶2] Robertson and McLean are the parents of a three-year-old child. In

July 2017, McLean filed a petition for determination of parental rights and

responsibilities.   The proceedings were subject to delays because of

Robertson’s conduct, including conduct that resulted in his incarceration, and

because of Robertson’s frequent change of attorneys. Robertson’s attorney at

the hearing on this matter was the fourth attorney to appear on his behalf.

      [¶3] The court ultimately held a contested hearing in June 2019. As

relevant to this appeal, the evidence at trial included McLean’s testimony that

she owns a company, P&P Services, Inc., and that her company makes her

payments on her vehicle loan and pays for fuel for the vehicle, health insurance,

and her cell phone, for a total personal benefit to her of $1,590 per month or

$19,080 per year. The court admitted as an exhibit McLean’s answer to an

interrogatory regarding her fringe benefits:

      Interrogatory No. 6. Describe any fringe benefits you presently
      receive from any business, employment, or other engaged in by
      you, such as, but not limited to, auto expenses, travel expenses,
      entertainment expenses, insurance, deferred compensation, stock
      options or plan, the receipt of personal property, pension,
      retirement, profit sharing plans, cafeteria plans and other (please
      specify), and include in said description the value of said benefit.
                                                                                                   3

       Answer:

               P&P Services, Inc.
               Car Payment: $850/month
               Gas: $200/month
               Health Insurance: $220/month[1]
               Cell Phone: $100/month

       [¶4] Robertson and McLean also submitted child support affidavits in

which they reported their respective gross incomes. Robertson’s affidavit

shows a gross income of $42,526 per year. McLean’s affidavit shows a gross

income of $64,000 per year and indicates $0 in gross income from “employment

fringe benefits.”

       [¶5]     In its judgment, the court awarded McLean primary physical

residence of the parties’ child. The court set Robertson’s continuing child

support obligation at $107.45 per week. In reaching this figure, the court found

that McLean’s gross income was $66,000 and that Robertson’s gross income

was $41,500. The court did not explain how it made these calculations except

to state that it relied on the parties’ child support affidavits.




   1  In her testimony, McLean clarified that her company was paying $220 per month for her
insurance until she added her and Robertson’s son to her plan, at which time her insurance costs rose
to $440 per month.
4

      [¶6] The court did not indicate why it did not include McLean’s fringe

benefits in her gross income, despite the language of 19-A M.R.S. § 2001(5)(B)

(2018), which states:

      Gross income includes expense reimbursements or in-kind
      payments received by a party in the course of employment or
      self-employment or operation of a business if the expense
      reimbursements or in-kind payments reduce personal living
      expenses.

The court also ordered Robertson to pay $6,000 of McLean’s attorney fees

based on his ability to pay and “his role in increasing litigation costs.”

      [¶7] Following the court’s judgment, Robertson filed a motion for further

findings of fact and for reconsideration. See M.R. Civ. P. 52(b), 59(e). In his

motion, Robertson requested that the court adjust his child support obligation

based on a calculation of McLean’s gross income that accounts for the fringe

benefits she receives. Specifically, Robertson requested that the court make the

following findings of fact:

      1.    Clear and convincing testimony was presented by Sarah
      McLean that she received fringe benefits from her company in the
      amounts of $850 per month for car; $200 per month for gas; $440
      per month for insurance; $100 per month for cell phone, all
      equating to a yearly benefit of $19,080 in addition to what financial
      information was provided on her Child Support Affidavit.

      2.  Finding same, the Child Support worksheet should be
      amended to show $85,080 for Sarah McLean . . . .
                                                                               5

        [¶8] The court summarily denied the motion, indicating that it had

already made findings of fact on the issues raised in Robertson’s motion.

Robertson timely appealed.       See 19-A M.R.S. § 104 (2018); M.R. App. P.

2B(c)-(d).

                              II. LEGAL ANALYSIS

        [¶9] Robertson raises three arguments on appeal. First, he contends that

the court erred in calculating McLean’s gross income by failing to account for

her employment fringe benefits. Second, he argues that the court erred in

calculating his own gross income by imputing income to him during his period

of incarceration. Finally, Robertson asserts that the court abused its discretion

in awarding McLean $6,000 in attorney fees. We consider these arguments in

turn.

A.      McLean’s Gross Income

        [¶10] If a court finds that a party receives reimbursements or in-kind

payments from his or her employer and that those reimbursements or

payments “reduce personal living expenses,” the court must include the value

of those reimbursements or payments in calculating that party’s gross income.

19-A M.R.S. § 2001(5)(B). We review the court’s calculation of gross income for

clear error. See Ehret v. Ehret, 2016 ME 43, ¶ 14, 135 A.3d 101.
6

      [¶11] In Ehret, we summarized the effect that a motion for findings

pursuant to M.R. Civ. P. 52 has on our standard of review:

      [a]fter the entry of a judgment, if an affected party timely moves for
      findings pursuant to M.R. Civ. P. 52, the trial court must ensure that
      the judgment is supported by express factual findings that are
      based on record evidence, are sufficient to support the result, and
      are sufficient to inform the parties and any reviewing court of the
      basis for the decision. In the absence of a motion for specific factual
      findings, we ordinarily assume that a trial court found all of the
      facts necessary to support its judgment. However, when a motion
      for findings has been [timely] filed and denied, we cannot infer
      findings from the evidence in the record. In these circumstances, if
      the judgment does not include specific findings that are sufficient
      to support the result, appellate review is impossible and the order
      denying findings must be vacated.

Id. ¶ 9 (alteration in original) (footnote omitted) (citations omitted). Because

Robertson timely filed a motion for further findings on the specific issue of the

court’s apparent determination that McLean’s receipt of “fringe” financial

benefits from her employment should not be considered as gross income, the

standard we articulated in Ehret applies.

      [¶12] On the record before us, we are unable to engage in effective

appellate review of the court’s calculation of McLean’s gross income. See id.

¶¶ 15-16 (vacating a child support judgment because the court did not explain

the factual or legal basis of its gross income calculations and denied a motion

for findings seeking clarification on that issue); Dumas v. Milotte, 2016 ME 3,
                                                                                7

¶¶ 7-10, 130 A.3d 394 (similar); cf. Williams v. St. Pierre, 2006 ME 10, ¶¶ 9-10,

889 A.2d 1011 (vacating an award of child support because “[w]e [could not]

assume that the court implicitly found facts sufficient to support its reliance on

[an] outdated child support affidavit because the court entered no further

findings in response to [a party’s] post-judgment motion”).

      [¶13]    The judgment contains no explanation of how the court

determined McLean’s gross income, except that the court relied on McLean’s

child support affidavit. However, the income listed on McLean’s child support

affidavit is apparently contradicted by her own testimony and answers to

interrogatories, in which she acknowledged that she receives $19,080 per year

in fringe benefits in addition to the income listed on her affidavit.

      [¶14] Because the court denied Robertson’s motion requesting that the

court address the discrepancy, “[w]e cannot assume that the court implicitly

found facts sufficient to support its income determination, and we cannot

decide whether the court's findings were clearly erroneous.”               Ehret,

2016 ME 43, ¶ 16, 135 A.3d 101; see Dumas, 2016 ME 3, ¶ 10, 130 A.3d 394;

Williams, 2006 ME 10, ¶ 10, 889 A.2d 1011. Accordingly, we vacate the portion

of the judgment pertaining to child support and remand for the District Court

to consider the apparently undisputed evidence about McLean’s receipt of
8

fringe benefits; to justify or amend its calculation of McLean’s gross income;

and, if necessary, to amend Robertson’s child support obligation.

B.    Robertson’s Gross Income

      [¶15] Robertson next argues that the court erred by imputing income to

him during his sixteen-day period of incarceration in November 2018.

      [¶16] In relevant part, 19-A M.R.S. § 2001(5)(D) (2018) provides that

“[a] party who is incarcerated in a correctional or penal institution is deemed

available only for employment that is available through such institutions.” This

statute prohibits the court from imputing income to an individual while he is

incarcerated. See King v. King, 2013 ME 56, ¶ 17, 66 A.3d 593. But the court did

not impute any income to Robertson during his period of incarceration.

Instead, the court calculated Robertson’s gross income by relying on

Robertson’s child support affidavit, on which Robertson listed his actual annual

income. In doing so, the court did not err.

      [¶17] Section 2001(5)(D) does not require the court to adjust a party’s

actual yearly income merely because the party was incarcerated. Obviously,

such an adjustment could occur if the incarcerated party presented evidence to

show that his or her income had been affected by the incarceration. Here,

however, the record demonstrates that Robertson did not present any evidence
                                                                                                   9

to show that his short period of incarceration in 2018 affected his income for

2019 as indicated in his child support affidavit. Therefore, section 2001(5)(D)

did not require the court to adjust Robertson’s child support obligation.

C.       Attorney Fees

         [¶18] Lastly, Robertson argues that the court abused its discretion in

awarding $6,000 in attorney fees to McLean.

         [¶19] Because we conclude that the court must clarify or amend its

findings as to McLean’s gross income, we must also vacate the portion of the

judgment pertaining to attorney fees. When awarding attorney fees in parental

rights cases, the court must consider the parties’ relative abilities to pay the

costs of litigation. Cf. Verite v. Verite, 2016 ME 164, ¶ 17, 151 A.3d 1. On

remand, if the court determines that McLean’s gross income is more than the

$66,000 it indicated in its judgment, then the court must consider whether this

amended finding has any bearing on the parties’ relative financial positions and

whether a different award of attorney fees may be warranted.2




     2We express no opinion as to whether the court’s award of $6,000 in attorney fees was reasonable
or whether the same award would be reasonable if, on remand, the court finds that McLean’s income
is higher than it had previously determined. The District Court must make this determination in the
first instance.
10

        The entry is:

                           Judgment vacated in part. Remanded for further
                           proceedings as indicated in this opinion



Thaddeus V. Day, Esq., Law Offices of Thaddeus V. Day, PLLC, Cumberland
Center, for appellant Ian R. Robertson

Eric B. Morse, Esq., Strout & Payson, P.A., Rockland, for appellee Sarah B.
McLean


Rockland District Court docket number FM-2017-151
FOR CLERK REFERENCE ONLY
