MAINE SUPREME JUDICIAL COURT                                         Reporter of Decisions
Decision:   2013 ME 1
Docket:     Pen-12-87
Submitted
 On Briefs: November 28, 2012
Decided:    January 3, 2013

Panel:          SAUFLEY, C.J., and ALEXANDER, LEVY, MEAD, GORMAN, and JABAR, JJ.


                                    JEAN M. WALTZ

                                            v.

                                   DAVID C. WALTZ



LEVY, J.

         [¶1]    David C. Waltz appeals and Jean M. Waltz cross-appeals from a

judgment of the District Court (Newport, Sparaco, J.) holding David in civil

contempt for his failure to comply with portions of the parties’ property settlement

incorporated in their divorce judgment. We affirm the judgment of contempt in all

respects but one: we vacate the portion of the judgment that denies relief on the

basis that the no-contact provision in a protection from harassment (PFH) order

made it impossible for David to comply with several provisions of the divorce

judgment.

                                   I. BACKGROUND

         [¶2] Viewed in the light most favorable to the judgment, the evidence

established the following. See Van Dam v. Spickler, 2009 ME 36, ¶ 2, 968 A.2d
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1040. Jean and David were divorced by a judgment entered on April 19, 2011.

The parties reached a property settlement, which the court incorporated into the

divorce judgment. Pursuant to the judgment, David was required to provide Jean

with the paperwork for a 1978 Chevrolet truck, and to assure that Jean’s tractor and

snow blower were in working condition. David was also ordered to make a

payment to Jean in the amount of $15,000, with $10,000 due by April 21, 2011,

and the remainder due by January 6, 2012.

      [¶3] On June 22, 2011, after a hearing, Jean obtained a final PFH order that

prohibited David from “having any direct or indirect contact with [Jean].” The

order permitted David to enter Jean’s property once, under police supervision, “to

remove property that both parties agree belongs to [David].” The record is silent

as to whether David, who was present at the hearing, brought to the court’s

attention that the no-contact provision might be a barrier to his compliance with

requirements of the divorce judgment.

      [¶4] In November 2011, Jean filed a motion for contempt, pursuant to M.R.

Civ. P. 66(d), alleging that David had failed to comply with the divorce judgment.

Among other things, the motion alleged that David had not made the first payment

required by the divorce judgment, had not transferred the truck’s paperwork, and

had not fixed the tractor or snow blower. Following a January 2012 hearing on the

motion, the court issued a written judgment that held David in contempt for taking
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certain items of Jean’s personal property. The court found that David had not

turned over the truck paperwork or made either property settlement payment to

Jean, although he had access to sufficient funds to make the payments at the time

each was due. The court also found that David had not fixed Jean’s tractor or snow

blower, but it was “questionable” whether these items could be fixed, and

construed the divorce judgment not to require full replacement of either item. The

court concluded that David was not in contempt regarding the property settlement

payment, the paperwork, the tractor, or the snow blower because Jean had failed to

prove that David could comply with the judgment as to these items without

violating the PFH order’s no-contact provision.

      [¶5] Jean filed a motion for additional findings of fact and conclusions of

law pursuant to M.R. Civ. P. 52(b), which the court denied. This appeal and

cross-appeal followed.

                                II. DISCUSSION

      [¶6] We review a judgment of civil contempt for an abuse of discretion, and

the court’s underlying factual findings for clear error. Lewin v. Skehan, 2012 ME

31, ¶ 18, 39 A.3d 58.     A finding of contempt requires proof “by clear and

convincing evidence that the alleged contemnor failed or refused to comply with a

court order and presently has the ability to comply with that order.” Id. ¶ 19
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(quotation marks omitted). Contempt does not lie where compliance is impossible.

Id.

      [¶7] In determining whether compliance is impossible, we begin with the

presumption that a party “has the present ability to comply with a court order if the

order implies that he was able to comply at the time the order was issued.” Id.

¶ 19 n.5.   David agreed to the terms of the judgment, which is sufficient to

conclude that the judgment implied that he was able to comply at the time it was

issued. Thus, the law presumes that David had the present ability to comply with

the judgment. The burden therefore shifted to David to produce evidence that

compliance was impossible at the time of the contempt proceeding in January

2012, with the burden of persuasion remaining at all times with Jean. See id.

      [¶8] The court found by clear and convincing evidence that David had the

financial ability to pay at least a portion of the property settlement in January 2012,

and that he was in possession of the truck paperwork, but that he failed to make

any payment, deliver all of the paperwork to Jean, or ensure that her tractor or

snow blower were in working condition. These findings are well supported by the

trial evidence. Our inquiry, therefore, is limited to whether the court erred in

finding that the no-contact provision of the PFH order made compliance

impossible and that David therefore lacked a present ability to comply with the

divorce judgment.
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      [¶9] A no-contact provision in a PFH order, standing in isolation, does not

prevent compliance with a divorce judgment involving the same parties because, as

a matter of statutory right, a party may request that the court modify the PFH order

to permit compliance with the divorce judgment. See 5 M.R.S. § 4655(2) (2012)

(permitting modification of a PFH order upon the motion of a party). PFH orders,

which are intended primarily to protect plaintiffs from harassment, should

generally not operate to relieve defendants from important obligations under

preexisting court judgments. Proof of the existence of a PFH order’s no-contact

provision, standing alone, does not satisfy a contemnor’s burden of production to

overcome the presumption of a present ability to comply with the property

distribution provisions of a related divorce judgment. Accordingly, the existence

of the PFH order in this case did not relieve David of his affirmative duty to

comply with the divorce judgment because he failed to produce evidence that he

undertook, in good faith, to modify the PFH order to permit compliance, that the

court denied the requested modification, and that compliance was otherwise

impossible.

      [¶10] We vacate the judgment of contempt insofar as it determined that the

PFH order prevented compliance with the divorce judgment, and remand for

further proceedings. We are unpersuaded by and do not separately address the

parties’ remaining arguments.
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        The entry is:

                           Judgment vacated insofar as it found that the PFH
                           order prevented compliance with the divorce
                           judgment. Remanded for further proceedings
                           consistent with this opinion with respect to the
                           $15,000 property settlement payment, the truck
                           paperwork, tractor, and snow blower. Judgment
                           affirmed in all other respects.




On the briefs:

        Eugene M. Sullivan Jr., Esq., Law Office of Joseph M. Baldacci, Bangor, for
        appellant David C. Waltz

        Martha J. Harris, Esq., Paine, Lynch & Harris, P.A., Bangor, for cross-
        appellant Jean M. Waltz




Newport District Court docket number FM-2010-90
FOR CLERK REFERENCE ONLY
