MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision:    2015 ME 89
Docket:      Yor-14-304
Submitted
  On Briefs: February 26, 2015
Decided:     July 21, 2015

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



                              JENNIFER A. YOUNG

                                             v.

                               MICHAEL S. YOUNG

HJELM, J.

         [¶1] Michael S. Young appeals from a judgment of divorce from Jennifer A.

Young entered in the District Court (York, Janelle, J.). Michael argues that the

trial court (1) failed to make adequate findings of fact regarding its determinations

of parental rights and responsibilities and spousal support, (2) incorrectly

calculated his child support arrearages, (3) erroneously characterized marital

property as nonmarital property, (4) inequitably divided the marital property, and

(5) erroneously ordered him to pay Jennifer’s attorney fees. We vacate several of

the economic provisions of the judgment and remand for further proceedings but

affirm the judgment in all other respects.
2

                                      I. BACKGROUND

        [¶2] The following facts are viewed in the light most favorable to the

court’s judgment. See Sloan v. Christianson, 2012 ME 72, ¶ 2, 43 A.3d 978.

Jennifer and Michael were married in May 2003 and are the parents of three minor

children born between 2004 and 2008. Jennifer filed a complaint for divorce in

December 2012. After a two-day hearing, the court entered a divorce judgment on

March 31, 2014, that granted Jennifer sole parental rights and responsibilities for

the children and allowed Michael rights of contact for up to three hours every other

week, which, at Jennifer’s election, will be either supervised by a responsible adult

that Jennifer selects or held at a licensed or certified child visitation center. The

court also awarded Jennifer $3,263 in child support arrearages. The court set aside

Michael’s entire Shaw’s retirement account to Jennifer in lieu of spousal support,1

and set aside to Jennifer certain items of property that it determined belonged to

Jennifer or to the parties’ minor children as nonmarital property.                        The court

awarded a vehicle to each party, and the remaining items of marital personalty

were awarded to the party who possessed them at the time of the divorce. Finally,

the court ordered Michael to pay Jennifer’s reasonable attorney fees.




    1
        The court initially awarded Jennifer Michael’s retirement account from his employment at
Hannaford but, in response to one of Michael’s post-judgment motions, corrected that provision to refer
to the Shaw’s retirement account.
                                                                                             3

           [¶3] Michael filed a timely motion for findings of fact and conclusions of

law pursuant to M.R. Civ. P. 52 (Tower 2013), requesting that the court further

address the awards of spousal support, nonmarital personal property, certain items

of marital personalty, and attorney fees. On June 11, 2014, the court summarily

denied Michael’s motion and ordered Michael to pay Jennifer $10,000 for her

attorney fees. Michael appeals the court’s judgment and subsequent order.

                                            II. DISCUSSION

           [¶4] We address Michael’s challenges in turn.

A.         Parental Rights and Responsibilities

           [¶5] In establishing Michael’s rights of contact with the parties’ children,

the court authorized Jennifer to designate the person who will supervise that

contact.        Michael argues that because Jennifer had not promoted meaningful

contact between him and the children, the judgment gives her too much discretion

and that “these visits simply will not occur.”2 In assessing a determination of

parental rights and responsibilities, “[w]e review factual findings for clear error

and the ultimate conclusion concerning the child’s best interest and rights of

contact for an abuse of discretion.”                   Sullivan v. Doe, 2014 ME 109, ¶ 19,

100 A.3d 171. Where, as here, the court does not issue factual findings and a party

fails to move for findings of fact on the issue of parental rights, we will “infer that

     2
         Michael does not challenge the judgment’s requirement that contact be supervised.
4

the trial court made all the findings necessary to support its judgment, if those

findings are supported by the record.” Malenko v. Handrahan, 2009 ME 96, ¶ 37,

979 A.2d 1269; see Sullivan, 2014 ME 109, ¶ 19, 100 A.3d 171.

      [¶6] At trial, a therapist testified that the oldest child has post-traumatic

stress disorder, is hypervigilant, and has nightmares and flashbacks of Michael

abusing and terrorizing her. She fears Michael and feels the need to protect her

younger siblings from him. Jennifer testified that in order to protect the children

when Michael became agitated, she positioned herself between him and the

children.   The therapist has worked with Jennifer on her parenting skills and

testified that although there is room for improvement, Jennifer is an appropriate

caregiver who is nurturing and loving. This and other evidence support the court’s

conclusions that supervised contact of limited duration is in the children’s best

interests and that Jennifer is capable of determining the specific supervisory

arrangements within the parameters of the judgment that will protect the children’s

physical and emotional well-being during visitation. The court therefore did not

abuse its discretion in setting the conditions of contact and authorizing Jennifer to

control some of its circumstances. If in the future Michael raises a claim that

Jennifer has impeded his court-ordered rights of contact, he may pursue familiar

procedural mechanisms to seek judicial recourse.            See Hogan v. Veno,

2006 ME 132, ¶¶ 18-20, 909 A.2d 638; M.R. Civ. P. 66.
                                                                                 5

B.    Child Support Arrearages

      [¶7] Michael next contends that the court miscalculated his child support

arrearage to be $3,263. We review a court’s child support award for abuse of

discretion. Cf. Buck v. Buck, 2015 ME 33, ¶ 6, 113 A.3d 1095.

      [¶8] In February 2013, the court entered an interim order requiring Michael

to pay weekly child support of $273. On July 19, 2013, the court amended the

child support order and prospectively allowed a credit toward Michael’s weekly

child support obligation for the cost of professional services to supervise his

contact with the children, up to $50 per visit. Between February 11 and the final

hearing, Michael’s cumulative gross child support obligation was $14,469. The

court found that Michael had paid $11,206 in child support, leaving an arrearage of

$3,263. The undisputed evidence establishes that there were five professionally

supervised visits between October 2013 and January 2014, and that Michael paid a

total of $210 for those services. Because the court did not adjust the arrearage by

that amount, we correct the judgment to reduce the amount Michael owes in child

support arrearages from $3,263 to $3,053, and affirm the order as corrected. See

Avery v. Kennebec Millwork, Inc., 2004 ME 147, ¶ 11, 861 A.2d 634.

C.    Shaw’s Retirement Account

      [¶9] Michael argues that the court erred in awarding spousal support to

Jennifer. In fact, the court did not order Michael to pay spousal support. Rather,
6

in its division of marital property and in lieu of spousal support, the court set aside

to Jennifer the Shaw’s Supervalu Retirement Account from Michael’s

employment, with a value of roughly $22,500. In its judgment, the court explained

that this award was “to effectuate an equitable division of property, and [was] in

consideration of [Jennifer’s] waiver of her right to receive spousal support from

[Michael].” Therefore, one of the two conjunctive reasons why the court set aside

the Shaw’s Supervalu account to Jennifer is that otherwise, she would have had a

“right” to spousal support. The court did not issue findings of fact to support this

conclusion and subsequently denied Michael’s motion for findings of fact and

conclusions of law on the point.

      [¶10] Michael’s motion is governed by Rule 52(a) because the court had not

issued findings of fact and conclusions of law on the issues that were the subject of

the motion. When the court has not made findings of fact or conclusions of law, it

“shall, upon the request of a party made as a motion within 5 days after notice of

decision, . . . find the facts specially and state separately its conclusions of law

thereon.” M.R. Civ. P. 52(a) (Tower 2013). When a party requests that the court

issue findings of fact and conclusions of law, “[t]he divorce court has a duty to

make findings sufficient to inform the parties of the reasoning underlying its

conclusions and to provide for effective appellate review.” Bayley v. Bayley,

602 A.2d 1152, 1153-54 (Me. 1992); see also Dalton v. Dalton, 2014 ME 108,
                                                                                                           7

¶ 20, 99 A.3d 723 (holding that when a party files a motion pursuant to Rule 52(a),

the court’s obligation to issue findings and conclusions is “mandatory.”).3

        [¶11] In some circumstances, the court may properly adjust the division of

the marital estate based on factors relevant to spousal support. 19-A M.R.S.

§§ 951-A(2)(C), (3) (2014).                In its judgment and order denying Michael’s

Rule 52(a) motion, however, the court did not provide findings to support its

conclusion that Jennifer had a “right” to receive spousal support. As a result, the

court has not explained why it decided to award Jennifer the entire Shaw’s

retirement account as a substitute for the support it may have awarded to her

otherwise. This omission prevents meaningful appellate review of this aspect of

the property division, and we vacate the award of the Shaw’s retirement account to

Jennifer and remand for the court to issue findings and conclusions on its award.

See Bayley, 602 A.2d at 1154.


   3
       Michael did not include proposed findings and conclusions as part of his Rule 52(a) motion.
Although the better practice is for the moving party to propose findings for the court’s consideration in
order to direct the court’s attention to specific aspects of the case, Rule 52(a) does not require submission
of proposed findings. This is in contrast to motions submitted under Rule 52(b), which governs a motion
for issuance of findings and conclusions beyond those already provided by the court. Wandishin v.
Wandishin, 2009 ME 73, ¶ 18, 976 A.2d 949. Although we have held that a Rule 52(b) motion must be
supported by proposed findings and conclusions, see, e.g., Dalton v. Dalton, 2014 ME 108, ¶ 21,
99 A.3d 723; Bell v. Bell, 1997 ME 154, ¶ 6, 697 A.2d 835, we have not imposed that requirement for
Rule 52(a) motions. Accordingly, under the analysis applicable to Rule 52(a), Michael’s motion was not
deficient.

   Jennifer has not challenged the sufficiency of Michael’s Rule 52(a) motion based on any requirements
that may arise from Rule 7(b) of the Maine Rules of Civil Procedure. We therefore do not address the
question of whether Rule 7 requires a party who files a Rule 52(a) motion to submit proposed findings
and conclusions, even though Rule 52(a), standing alone, does not.
8

D.    Personal Property

      [¶12]   Michael argues that the court erroneously characterized certain

marital property as nonmarital and awarded those items to Jennifer as her separate

property, and that the court abused its discretion in its award of several items of

marital personalty.

      [¶13] When distributing personal property in a divorce judgment, “[t]he

trial court must (1) determine what of the parties’ property is marital and

[nonmarital], (2) set apart each spouse’s [nonmarital] property, and (3) divide the

marital property between them in such proportion as the court deems just.”

Burrow v. Burrow, 2014 ME 111, ¶ 13, 100 A.3d 1104 (quotation marks omitted);

see also 19-A M.R.S. § 953 (2014). Marital property, in the context of this case, is

defined as “all property acquired by either spouse subsequent to the

marriage.” 19-A M.R.S. § 953(2). The court’s classification of property as marital

or nonmarital is reviewed for clear error. Miliano v. Miliano, 2012 ME 100, ¶ 15,

50 A.3d 534. We review the court’s division of marital property for an abuse of

discretion “and its underlying factual findings for clear error.”       Thumith v.

Thumith, 2013 ME 67, ¶ 8, 70 A.3d 1232. “[W]e will vacate a judgment only if no

competent evidence exists in the record to support it.”        Hatch v. Anderson,

2010 ME 94, ¶ 12, 4 A.3d 904 (quotation marks omitted).
                                                                                                         9

        [¶14] The court determined that Jennifer’s clothing, shoes, jewelry, and

documents bearing her name are her nonmarital property.                               Michael’s only

challenge to this determination is that “[i]t was clear from the testimony at trial,

that these items are in fact, marital in nature.” However, neither party presented

any evidence regarding the nature of these items.4 Because Michael’s argument is

predicated on the incorrect notion that there exists evidence that Jennifer’s personal

belongings were marital, we do not reach Michael’s argument that these items

were subject to division as marital property, and we affirm the court’s award of

these items to Jennifer as her nonmarital property.5

        [¶15] Michael argues that the court failed to award a rocking chair to either

party and that it should be set aside to him as his nonmarital property. Michael

testified, however, that his parents gave the chair to Jennifer and him during the

course of the marriage when they had children, which renders it marital in nature.

See 19-A M.R.S. § 953(2). Because Jennifer is in possession of the chair, it was

awarded to Jennifer under the residuary provision of the judgment that the party in


   4
      Because the parties did not present any evidence about when these items were acquired, the statutory
presumption that property acquired during a marriage is marital, see 19-A M.R.S. § 953(3) (2014), did not
arise.
   5
     In his financial statement, Michael indicated that the parties own wedding rings, but Michael did not
check the box on the form to indicate that the rings belong to either party as nonmarital property.
Therefore, we must conclude that the rings are the parties’ marital property. (Jennifer’s other jewelry was
not listed in the financial statements.) We infer that the wedding rings were distributed as marital
property in the residuary provision of the judgment ordering that any marital item possessed by either
party at the time of the judgment is awarded to that party.
10

possession of a marital item of personalty would retain it. The court therefore did

not omit the chair from the distribution of marital assets and did not err in

awarding it to Jennifer.

         [¶16]   We vacate the court’s award of several other items of tangible

personalty, however, because of several discrete errors affecting its analysis. First,

the court erred in setting aside to Jennifer as her nonmarital property a television,

computer, monitor and printer, two air conditioners,6 and a washer and dryer. The

limited evidence presented by the parties on the character of these items of

personalty, which is contained in their financial statements, can support only the

conclusion that they are marital. Also, the court set aside the children’s belongings

to Jennifer as nonmarital property. Whether those items are best seen as the

children’s separate property or as the parties’ marital property owned for the

benefit of the children, they are not Jennifer’s alone. Finally, although the court

purported to award a vehicle to each party and ordered that Michael would be

responsible for a debt on a boat, the undisputed evidence establishes that they own

only one vehicle and do not own a boat.




     6
     Although it appears that the parties may possess three air conditioners, Michael concedes that one
belongs to Jennifer’s brother, and he therefore challenges the court’s classification of only two air
conditioners as marital property.
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      [¶17]    We therefore vacate the award of all tangible marital personal

property and remand for the court to correct these errors and to reconsider the

effect, if any, of those changes on its overall property division.

E.    Attorney Fees

      [¶18] Finally, Michael contends that the court erred when it ordered him to

pay $10,000 to Jennifer for her attorney fees. Because we vacate aspects of the

judgment that bear on economic issues in this case, we also vacate the court’s

award of attorney fees to allow for its reconsideration because of the

interrelationship between those economic issues and an award of attorney fees.

See Pederson v. Pederson, 644 A.2d 1045, 1047 (Me. 1994).

      The entry is:

                      Judgment vacated as to the Shaw’s retirement
                      account, the distribution of all tangible marital
                      personal property, and attorney fees. Remanded to
                      the District Court for further proceedings
                      consistent with this opinion. The child support
                      arrearage is affirmed as corrected. Judgment
                      affirmed in all other respects.
12


On the briefs:

        Gregory J. Orso, Esq., Orso Law, P.A., York Harbor, for
        appellant Michael S. Young

        Jeannette M. Durham, Esq. Fairfield & Associates, P.A.,
        Lyman, for appellee Jennifer A. Young



York District Court docket number FM-2012-218
FOR CLERK REFERENCE ONLY
