MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2016	ME	164	
Docket:	      Kno-16-57	
Submitted	
  On	Briefs:	 September	29,	2016	
Decided:	     November	8,	2016	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                                  LINDSAY	E.	VERITE	
                                            	
                                           v.	
                                            	
                                    ERIC	J.	VERITE	
	
	

MEAD,	J.	

    	   [¶1]	 	 Eric	 J.	 Verite	 appeals	 from	 a	 judgment	 of	 the	 District	 Court	

(Rockland,	Worth,	J.)	granting	Lindsay	E.	Verite’s	motion	to	modify	the	parties’	

divorce	 judgment.	 	 Eric	 contends	 that	 the	 court	 (1)	 erroneously	 permitted	

testimony	pertaining	to	Lindsay’s	plan	to	relocate	the	children,	and	(2)	erred	

by	failing	to	articulate	a	proper	basis	for	its	award	of	attorney	fees	and	expert	

fees	 to	 Lindsay.	 	 We	 find	 no	 error	 or	 abuse	 of	 discretion	 and	 affirm	 the	

judgment.	

                                     I.		BACKGROUND	

        [¶2]	 	 Eric	 and	 Lindsay	 were	 married	 in	 2005	 and	 are	 the	 parents	 of	

three	 children	 born	 in	 2005,	 2008,	 and	 2010.	 	 The	 parties	 were	 divorced	 in	
2	

2011	 by	 a	 judgment	 of	 the	 District	 Court	 (Westcott,	 J.),	 which	 awarded	 them	

shared	 parental	 rights	 and	 responsibilities;	 awarded	 Lindsay	 primary	

residence	 of	 the	 three	 children	 and	 granted	 Eric	 rights	 of	 contact	 with	 the	

children	 most	 weekends	 and	 at	 other	 designated	 times;	 ordered	 Eric	 to	 pay	

child	support	and	arrearages;	entitled	Lindsay	to	the	child	tax	benefits	for	two	

of	 the	 children	 and	 Eric	 the	 benefits	 for	 one	 of	 the	 children	 contingent	 on	

being	current	with	child	support;	and	divided	marital	assets	and	debts.	

       [¶3]	 	 On	 October	 22,	 2014,	 Eric	 filed	 a	 motion	 to	 enforce	 alleging	 that	

Lindsay	 prevented	 his	 contact	 with	 the	 children	 during	 two	 weekends	 that	

month.	 	 He	 sought	 to	 enforce	 the	 visitation	 schedule	 ordered	 in	 the	 divorce	

judgment	 and	 obtain	 compensatory	 visitation	 with	 the	 children.	 	 On	

November	12,	 2014,	 Lindsay	 filed	 a	 motion	 to	 modify	 the	 divorce	 judgment	

seeking,	 among	 other	 things,	 sole	 parental	 rights	 and	 responsibilities	 with	

respect	 to	 the	 parties’	 three	 children.	 	 That	 same	 day,	 the	 court	 (Sparaco,	 J.)	

entered	an	interim	order	that	granted	Lindsay	temporary	sole	parental	rights	

and	responsibilities;	permitted	Eric	to	have	supervised	visitation	at	least	two	

times	per	week;	limited	Eric’s	contact	with	Lindsay;	ordered	Eric	to	undergo	

psychological	 and	 substance	 abuse	 evaluations	 and	 follow	 through	 on	 any	

recommendations;	and	appointed	a	guardian	ad	litem.	
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      [¶4]	 	 The	 court	 (Worth,	 J.)	 held	 a	 two-day	 testimonial	 hearing	

addressing	both	pending	motions	on	December	9,	2015,	and	January	5,	2016,	

and	 entered	 an	 order	 on	 January	 27,	 2016,	 denying	 Eric’s	 motion	 to	 enforce	

and	 granting	 Lindsay’s	 motion	 to	 modify.	 	 With	 regard	 to	 the	 motion	 to	

enforce,	 the	 court	 found	 that	 Lindsay’s	 decisions	 to	 withhold	 visits	 “were	

motivated	 by	 a	 reasonable	 concern	 for	 the	 children’s	 safety	 and	 well-being,”	

and	in	light	of	Eric’s	recent	OUI	charge,	prior	expression	of	suicidal	ideation,	

and	refusal	to	engage	in	counseling,	her	actions	were	justified.	

      [¶5]	 	 Regarding	 the	 motion	 to	 modify,	 the	 court	 determined	 that	

Lindsay	 had	 established	 a	 substantial	 change	 in	 circumstances	 warranting	

modification	of	the	judgment.		The	court	awarded	Lindsay	sole	parental	rights	

and	responsibilities,	finding	that	Eric’s	communications	with	Lindsay	“reflect	

an	 approach	 to	 her	 characterized	 by	 manipulation,	 hostility	 and	 demeaning	

actions	 and	 language,”	 and	 “[a]s	 a	 result,	 effective	 co-parenting	 [wa]s	 not	

possible	at	th[at]	time.”		The	court	cited	Eric’s	psychological	evaluation,	which	

was	“suggestive	of”	a	personality	disorder	that	could	make	it	difficult	for	him	

to	 co-parent	 with	 Lindsay,	 and	 found	 “that	 he	 may	 not	 be	 a	 person	 who	 will	

benefit	substantially	from	therapy.”		The	court	also	found	that	Eric	committed	

domestic	abuse	against	Lindsay	during	an	incident	on	October	31,	2014,	when	
4	

he	unexpectedly	showed	up	at	the	children’s	school,	knowing	that	it	was	not	

his	day	to	have	the	children.		When	Lindsay	arrived	at	the	school,	she	found	an	

adult	 blocking	 Eric’s	 car	 from	 leaving	 the	 parking	 lot.	 	 Lindsay	 approached	

Eric,	and	he	grabbed	her	and	wrestled	her	away	from	his	car	in	front	of	their	

two	younger	children.		Finally,	the	court	found	that	Eric	“willfully	misused	the	

[protection	 from	 abuse]	 process	 in	 order	 to	 gain	 tactical	 advantage	 in	 the	

escalating	 parental	 rights	 dispute”	 by	 falsely	 describing	 the	 events	 of	 the	

incident	at	the	school.	

       [¶6]	 	 The	 court	 gave	 Lindsay	 sole	 discretion	 as	 to	 the	 “frequency	 and	

duration	 of	 contact”	 between	 Eric	 and	 the	 children	 and	 as	 to	 whether	 the	

contact	 requires	 supervision.	 	 In	 its	 discussion	 of	 parent/child	 contact,	 the	

court	 found	 that	 Lindsay	 and	 her	 husband	 were	 considering	 a	 temporary	

move	 to	 Switzerland	 in	 August	 2016	 because	 her	 husband	 may	 be	 offered	 a	

teaching	 position	 there.	 	 The	 court	 noted	 that	 although	 this	 topic	 was	 not	

pleaded	 in	 either	 party’s	 motion,	 “[t]he	 parties	 litigated	 this	 issue	 .	 .	 .	 by	

implicit	 agreement.”	 	 Finding	 that	 the	 children	 would	 “benefit	 substantially”	

from	 attending	 a	 school	 abroad	 and	 that	 it	 would	 provide	 “a	 break	 from	 the	

chaos	 and	 dysfunction”	 they	 have	 experienced	 over	 the	 past	 two	 years,	 the	

court	 determined	 that	 the	 plan	 was	 “reasonable	 and	 in	 the	 children’s	 best	
                                                                                         5	

interest.”	 	 The	 court	 explained	 that	 “[t]he	 award	 of	 sole	 parental	 rights	 and	

responsibilities	to	[Lindsay]	vests	her	with	the	authority	to	decide	where	she	

and	the	children	will	live,	where	the	children	will	go	to	school,	and	the	terms	

of	 contact	 between	 the	 children	 and	 their	 father.”	 	 However,	 the	 order	

provides	that	if	Lindsay	relocates,	she	must	facilitate	contact	between	Eric	and	

the	 children	 through	 regular	 and	 consistent	 communication	 via	 Skype,	 and	

through	visits	by	Eric	with	the	children	in	Switzerland	and	when	the	children	

are	in	Maine.	

      [¶7]		Finally,	the	court	ordered	Eric	to	reimburse	Lindsay	$7,500	of	her	

attorney	fees	and	reimburse	her	half	of	the	$15,812	in	expert	fees	incurred	for	

Eric’s	psychological	evaluation	and	the	psychologist’s	testimony	in	court.			

                                     II.		DISCUSSION	

A.	   Relocation	

  	   [¶8]	 	 Eric	 contends	 that	 the	 court	 erred	 by	 permitting	 the	 issue	 of	

Lindsay’s	relocation	abroad	to	be	litigated	because	he	did	not	receive	proper	

notice	 of	 the	 relocation	 pursuant	 to	 19-A	 M.R.S.	 §	 1653(14)	 (2015),	 and	

because	 the	 issue	 was	 not	 raised	 at	 any	 time	 prior	 to	 the	 hearing.	 	 He	 also	

asserts	that	he	did	not	consent	to	litigating	the	issue.		As	previously	noted,	the	
6	

court	 found	 that	 although	 the	 issue	 of	 relocation	 was	 not	 pleaded	 in	 the	

parties’	2014	motions,	it	was	tried	by	implicit	agreement.	

     	   [¶9]	 	 We	 review	 a	 court’s	 application	 and	 interpretation	 of	 a	 statute	

de	novo.	 	 Efstathiou	 v.	 Aspinquid,	 Inc.,	 2008	 ME	 145,	 ¶	 57,	 956	 A.2d	 110.	 	 To	

interpret	the	meaning	of	a	statute	we	look	to	its	plain	language,	and	“[i]f	the	

statute’s	 meaning	 is	 unambiguous,	 and	 not	 illogical	 or	 absurd,	 that	 meaning	

controls,	and	we	do	not	look	beyond	its	words.”		Bank	of	Am.,	N.A.	v.	Cloutier,	

2013	ME	17,	¶	12,	61	A.3d	1242.	

     	   [¶10]		Title	19-A	M.R.S.	§	1653(14)	provides:	

         [A	parental	rights	and	responsibilities]	order	must	require	notice	
         of	the	intended	relocation	of	a	child	by	a	parent	awarded	shared	
         parental	 rights	 and	 responsibilities	 or	 allocated	 parental	 rights	
         and	 responsibilities.	 	 At	 least	 30	 days	 before	 the	 intended	
         relocation	of	a	child	by	a	parent,	the	parent	shall	provide	notice	to	
         the	other	parent	of	the	intended	relocation.		If	the	relocation	must	
         occur	 in	 fewer	 than	 30	 days,	 the	 parent	 who	 is	 relocating	 shall	
         provide	 notice	 as	 soon	 as	 possible	 to	 the	 other	 parent.	 	 If	 the	
         parent	 who	 is	 relocating	 believes	 notifying	 the	 other	 parent	 will	
         cause	 danger	 to	 the	 relocating	 parent	 or	 the	 child,	 the	 relocating	
         parent	 shall	 notify	 the	 court	 of	 the	 intended	 relocation,	 and	 the	
         court	 shall	 provide	 appropriate	 notice	 to	 the	 other	 parent	 in	 a	
         manner	determined	to	provide	safety	to	the	relocating	parent	and	
         child.	
     	
     	   [¶11]	 	 The	 meaning	 of	 section	 1653(14)	 is	 unambiguous.	 	 The	 statute	

requires	 a	 court	 order	 awarding	 shared	 or	 allocated	 parental	 rights	 and	

responsibilities	to	contain	a	provision	requiring	notice	to	be	given	prior	to	a	
                                                                                           7	

parent’s	 relocation	 with	 a	 child.	 	 It	 does	 not,	 as	 Eric	 asserts,	 require	 thirty	

days’	notice	to	be	given	prior	to	a	court	proceeding	where	the	relocation	may	

be	 addressed	 pursuant	 to	 a	 pending	 motion.	 	 See	 Malenko	 v.	 Handrahan,	

2009	ME	96,	¶	27,	979	A.2d	1269	(citing	19-A	M.R.S.	§	1653(10),	(14)	(2015))	

(“If	.	.	.	[the	mother]	desires	to	relocate	the	child’s	residence	outside	of	Maine,	

she	must	give	[the	father]	prior	notice.		Upon	his	receipt	of	such	notice,	[he]	

may,	if	he	so	elects,	contest	the	proposed	relocation	and	obtain	a	best	interest	

determination	based	on	the	child’s	then-existing	circumstances.”)	

       [¶12]		Accordingly,	the	lack	of	explicit	written	notice	to	Eric	of	Lindsay’s	

potential	relocation	prior	to	the	hearing	on	the	motions	to	enforce	and	modify	

the	judgment	did	not	preclude	the	court	from	considering	that	development	in	

Lindsay’s	 plans,	 given	 that	 Eric	 was	 well	 aware	 of	 the	 possible	 move	 before	

the	second	day	of	the	hearing	began,	and	the	parties	had	a	full	opportunity	to	

address	the	issue	during	the	hearing	and	did	so	in	detail.		The	court	did	not	err	

with	respect	to	the	application	of	19-A	M.R.S.	§	1653(14).	

  	    [¶13]	 	 In	 any	 event,	 to	 the	 extent	 that	 Lindsay’s	 relocation	 was	 an	

independent,	 unpleaded	 issue	 at	 the	 hearing,	 the	 court	 did	 not	 err	 in	

determining	 that	 the	 parties	 implicitly	 agreed	 to	 its	 litigation.	 	 Maine	

Rule	of	Civil	Procedure	15(b)	 provides	 that	 “[w]hen	 issues	 not	 raised	 by	 the	
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pleadings	are	tried	by	express	or	implied	consent	of	the	parties,	they	shall	be	

treated	in	all	respects	as	if	they	had	been	raised	in	the	pleadings.”1		Only	when	

it	appears	clear	from	the	record	that	both	parties	consented	to	the	trial	of	an	

issue	will	we	deem	the	issue	to	have	been	tried	by	consent.		Bernier	v.	Merrill	

Air	Eng’rs,	2001	ME	17,	¶	22,	770	A.2d	97.	

     	    [¶14]	 	 To	 determine	 whether	 an	 issue	 is	 tried	 by	 implied	 consent,	 the	

parties’	conduct	is	informative:	

          If	it	is	plain	from	the	conduct	of	the	parties	that	they	recognize	an	
          unpleaded	 issue	 as	 being	 in	 the	 case,	 no	 problem	 arises.	 	 On	 the	
          other	 hand,	 if	 one	 party	 offers	 evidence	 which	 the	 other	
          reasonably	 believes	 is	 of	 no	 consequence	 and	 therefore	 does	not	
          object	to	it,	cross-examine	upon	it	or	seek	to	controvert	it	by	other	
          evidence,	the	issue	can	hardly	be	considered	as	having	been	tried	
          by	implicit	consent.	
	
2	Harvey	&	Merritt,	Maine	Civil	Practice	§	15.5	at	487	(3d,	2015-2016	ed.).		We	

have	 recognized,	 however,	 that	 authority	 supports	 “the	 proposition	 that	 an	

issue	is	tried	by	implied	consent	when	one	party	generates	it	during	the	trial	

and	the	opposing	party	does	not	object	to	it	at	the	time.”		DiBiase	v.	Universal	

Design	 &	 Builders,	 Inc.,	 473	 A.2d	 875,	 877	 (Me.	 1984);	 see	 also	 Steinberg	 v.	

Elbthal,	 463	 A.2d	 731,	 734	 (Me.	1983)	 (“[F]ailure	 to	 object	 to	 extensive	




                                          	 to	 amend	 the	 pleadings,	 the	 “failure	 .	 .	 .	 to	 amend	 does	 not	
     1	 	 	 Although	 neither	 party	 moved

affect	the	result	of	the	trial	of	these	issues.”		M.R.	Civ.	P.	15(b).	
                                                                                                                  9	

evidence	 that	 is	 relevant	 only	 to	 an	 issue	 not	 raised	 by	 the	 pleadings	 would	

strongly	suggest	acquiescence	in	the	trial	of	that	issue	.	.	.	.”)	

        [¶15]		During	the	first	day	of	the	hearing	in	December	2015,	Lindsay’s	

husband	 testified	 about	 their	 potential	 relocation	 abroad	 on	 direct	

examination	and	Eric	cross-examined	him	on	the	subject.		On	the	second	day	

of	the	hearing	nearly	one	month	later,	Lindsay	testified	about	relocating	and	

Eric	 also	 cross-examined	 her	 on	 the	 issue.	 	 Moreover,	 the	 guardian	 ad	 litem	

was	 recalled	 on	 the	 second	 day	 of	 the	 hearing,	 and	 Eric	 questioned	 her	

exclusively	 about	 her	 opinion	 on	 Lindsay’s	 proposed	 move	 abroad.	 	 Despite	

Eric’s	 objection	 after	 the	 close	 of	 the	 evidence	 to	 litigation	 of	 the	 issue,	 we	

conclude	that	Eric’s	conduct	on	both	days	of	the	hearing	made	it	clear	that	he	

understood	 that	 Lindsay’s	 proposed	 relocation	 was	 at	 issue	 in	 this	 case,	 and	

that	 the	 court	 correctly	 determined	 that	 the	 issue	 was	 tried	 by	 implicit	

agreement	of	the	parties.	

B.	     Attorney	and	Expert	Fees	

        [¶16]	 	 Eric	 asserts	 that	 the	 court	 erred	 when	 it	 ordered	 him	 to	 pay	 a	

portion	of	Lindsay’s	attorney	fees	and	half	of	the	expert	costs	because	it	failed	

to	articulate	a	proper	basis	for	the	awards.2	


   2	 	 We	 note	 that	 neither	 party	 challenged   	 the	 amount	 or	 allocation	 of	 the	 fees	 incurred	 by	 the	
guardian	ad	litem.	
10	

      [¶17]		We	review	an	award	of	attorney	fees	for	an	abuse	of	discretion.		

Pearson	 v.	 Wendell,	 2015	 ME	 136,	 ¶	 47,	 125	 A.3d	 1149.	 	 In	 deciding	 the	

amount	of	attorney	fees	to	award,	“the	trial	court	has	discretion	to	consider	all	

factors	that	reasonably	bear	on	the	fairness	and	justness	of	the	award.”		Smith	

v.	 Padolko,	 2008	 ME	 56,	 ¶	 17,	 955	 A.2d	 740	 (quotation	 marks	 omitted).		

“Relevant	 factors	 include	 the	 parties’	 relative	 capacity	 to	 absorb	 the	 costs	 of	

the	 litigation	 and	 conduct	 by	 one	 party	 that	 increases	 the	 costs	 of	 the	

litigation.”		Jandreau	v.	LaChance,	2015	ME	66,	¶	29,	116	A.3d	1273.	

      [¶18]		The	court’s	order	states	that	it	“considered	the	issues,	the	parties’	

positions,	and	their	ability	to	bear	the	costs	of	litigation”	in	determining	that	it	

was	 appropriate	 for	 Eric	 to	 reimburse	 Lindsay	 for	 a	 portion	 of	 her	 attorney	

fees.	 	 Despite	 Eric’s	 contentions,	 this	 language	 indicates	 that	 the	 trial	 court	

appropriately	considered	relevant	factors.		See	Smith,	2008	ME	56,	¶¶	18-19,	

955	A.2d	740.	 	 Furthermore,	 the	 court	 noted	 that	 it	 reviewed	 the	 submitted	

attorney	 fee	 affidavits,	 which	 provided	 information	 regarding	 the	 fees’	

reasonableness,	 and	 it	 gave	 a	 concise,	 clear	 explanation	 of	 its	 reason	 for	

awarding	 the	 fees.	 	 See	 Miele	 v.	 Miele,	 2003	 ME	 113,	 ¶	 17,	 832	 A.2d	 760;	

Levy,	Maine	 Family	 Law	 §	 9.2	 at	 9-3	 to	 9-5	 (8th	 ed.	 2013).	 	 Accordingly,	 the	

court	did	not	abuse	its	discretion	in	its	award	of	attorney	fees	to	Lindsay.	
                                                                                          11	

        [¶19]	 	 In	 addition	 to	 attorney	 fees,	 a	 “court	 may	 order	 a	 party	 to	 pay	

reasonable	 fees	 and	 expenses	 of	 3rd-party	 participants	 in	 the	 proceedings,	

including	 guardians	 ad	 litem,	 expert	 witnesses	 and	 providers	 of	 services,	

whether	retained	by	a	party	or	the	court.”		19-A	M.R.S.	§	105(3)	(2015).		We	

review	 a	 trial	 court’s	 decision	 ordering	 a	 party	 to	 pay	 fees	 and	 expenses	 of	

third	 party	 participants	 for	 an	 abuse	 of	 discretion.	 	 See	 Wooldridge	 v.	

Wooldridge,	 2002	ME	 34,	 ¶¶	 3,	 8,	 791	 A.2d	 107;	 Cole	 v.	 A.J.	 Cole	 &	 Sons,	 Inc.,	

567	A.2d	1342,	1343-44	(Me.	1989).	

        [¶20]	 	 The	 court	 found	 that	 Lindsay	 incurred	 $15,812	 in	 fees	 on	 her	

credit	 card	 to	 have	 a	 psychologist	 perform	 a	 parental	 capacity	 evaluation	 of	

Eric	and	testify	in	court.		The	court	also	found	that	the	“evaluation	was	made	

necessary	by	[Eric]’s	behavior	and	conduct”;	that	Eric	earned	about	$107,000	

in	 2015;	 and	 that	 Lindsay	 had	 no	 actual	 income	 that	 year	 but	 could	 be	

imputed	minimum	wage.		Accordingly,	we	conclude	that	the	court’s	award	of	

expert	fees	to	Lindsay	did	not	exceed	its	discretion.	

    	   The	entry	is:	

    	   	      	      Judgment	affirmed.	

	       	      	      	      	      	

	
12	

On	the	briefs:	
	
     Aaron	Fethke,	Esq.,	Law	Office	of	Aaron	Fethke,	Searsport,	for	appellant	
     Eric	J.	Verite	
     	
     Christopher	K.	MacLean,	Esq.,	Elliott,	MacLean,	Gilbert	&	Coursey,	LLP,	
     Camden,	for	appellee	Lindsay	E.	Verite	
	
	
	
Rockland	District	Court	docket	number	FM-2010-106	
FOR	CLERK	REFERENCE	ONLY	
	
