MAINE SUPREME JUDICIAL COURT                                        Reporter of Decisions
Decision:    2016 ME 98
Docket:      Oxf-15-463
Submitted
  On Briefs: April 21, 2016
Decided:     July 7, 2016

Panel:          SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.



                          KATE T. (GOROSHIN) MCCARTHY

                                            v.

                                   IGOR GOROSHIN

HUMPHREY, J.

         [¶1]     Igor Goroshin appeals from a judgment of the District Court

(South Paris, L. Walker, J.) finding him in contempt for violating the 2011 divorce

judgment ending his marriage to Kate T. (Goroshin) McCarthy and denying his

motion to modify his child support obligation. Goroshin contends that the court

erred by (A) finding him in contempt for nonpayment of child support for 2011,

(B) finding him in contempt for nonpayment of child support for 2012, (C) finding

that he had not fully paid his child support obligations for 2013 and 2014,

(D) finding no substantial change in circumstances warranting a modification of

his child support obligation, (E) determining that he was obligated to sell the

marital home and split the proceeds, and (F) admitting a 2015 letter from an

insurance carrier to McCarthy regarding the carrier’s attempts to obtain paperwork
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from Goroshin in order to process McCarthy’s 2013 vehicular accident claim. We

vacate the judgment as to the court’s finding of contempt for nonpayment of child

support for 2012, but otherwise affirm.

                                 I. BACKGROUND

      [¶2]   Goroshin and McCarthy, the parents of two minor children, were

divorced by judgment of a Family Law Magistrate (Carlson, M.) issued on

January 24, 2011. The court awarded primary residential care of the two children

to McCarthy, with Goroshin having rights of contact with the children at all

reasonable times; ordered Goroshin to pay McCarthy $182.40 per week in child

support, commencing on July 29, 2011; and ordered that the marital home “be

listed for sale, in a commercially reasonable manner. Pending the sale, [Goroshin]

will be responsible for the payment of the debt on this property. When sold, if any

profit remains, the parties will share it equally.”

      [¶3] On June 18, 2014, McCarthy filed a motion for contempt alleging, inter

alia, that Goroshin had failed to pay child support as ordered and had failed to list

the marital property for sale. On June 25, 2014, Goroshin filed a motion to modify

the divorce judgment seeking to set a new contact schedule and to reduce child

support. On August 4, 2014, Goroshin moved for leave to amend his motion to

modify to include an assertion that there had been a substantial change in his

financial situation due to, among other things, a change in his employment status
                                                                                       3

since the divorce judgment. He was granted leave to amend, and McCarthy’s

contempt motion was heard together with his amended motion to modify on

March 5 and June 3, 2015.

      [¶4] In an order dated August 19, 2015, the court (L. Walker, J.) denied

Goroshin’s amended motion to modify the divorce judgment and granted

McCarthy’s motion for contempt, in part. Relevant to this appeal, regarding the

amended motion to modify, the court found that there had not been a substantial

change in circumstances that would justify a reduction in Goroshin’s child support

obligation or a modification of parental rights. Goroshin contended that there had

been a substantial change in his earning capacity because of “his inability to

achieve his earnings forecast as a medical marijuana farmer,” but the court

concluded that his purported operating expenses were not substantiated and that

“[t]he basic arithmetic involved in [his] calculation of revenue per patient . . .

militates against a modification of his child support obligation.” The court found

that “there is a likelihood that within a year or so, [his marijuana] business will

generate income that exceeds the amount presently used to calculate child

support.” Finally, the court found that although Goroshin “declined continued

employment with [his previous employer] due to his strict refusal to take opioids to

manage pain resulting from orthopedic surgeries . . . no evidence was presented

regarding whether and to what extent . . . that pain limits [his] earning capacity.”
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        [¶5] Regarding the motion for contempt, the court found that although

McCarthy had signed a quitclaim deed granting any interest she had in the marital

property1 to Goroshin in May 2013, this deed did not nullify the requirement in the

divorce judgment that the marital home be sold and the proceeds split. The court

concluded that Goroshin had not “been contemptuous in his failure to list the

property for sale,” but it ordered him to list the property in a commercially

reasonable manner within forty-five days or be found in contempt.

        [¶6] The court did find Goroshin in contempt for nonpayment of child

support for 2011 and 2012. The court also found that he was in arrears for 2013

and 2014 despite his assertions that McCarthy had verbally agreed to accept $500

per month and the fact that he had paid this amount during those years. However,

the court concluded, in light of the parties’ alleged agreement to reduce Goroshin’s

child support obligation, that Goroshin had not “willfully violate[d]” the child

support order; it therefore did not find him in contempt for failing to pay the full

amount of child support for 2013 and 2014. Goroshin timely appealed to us.




    1
      Goroshin purchased the home during the marriage; even though the title was in his name only, the
court determined that the home was marital property.
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                                         II. DISCUSSION

A.       Child Support for 2011

         [¶7] Goroshin contends that the court erred by finding that he was in arrears

for child support for 2011 and by finding him in contempt because McCarthy

waived her right to receive child support and because the parties cohabited during

that year. The court found that Goroshin’s “explanation[] regarding his 2011 . . .

arrearage[] [is] not persuasive” but did not specify which of Goroshin’s various

arguments it considered and rejected.2 However, because Goroshin did not move

for additional findings of fact and conclusions of law, we assume that the trial

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

supported by the record. See Finucan v. Williams, 2013 ME 75, ¶ 16, 73 A.3d

1056.

         [¶8] The court did not err by implicitly determining that McCarthy did not

waive the 2011 obligation. “Waiver is the voluntary and knowing relinquishment

of a right and may be shown by a course of conduct signifying a purpose not to

stand on a right, and leading, by a reasonable inference, to the conclusion that the


     2
       The court’s judgment found that Goroshin owed child support but did not, on its face, order
Goroshin to make payments or make specific findings regarding the amount owed. In other words,
McCarthy would still have to bring an action to collect child support if Goroshin continues to not pay the
arrears. Although the court was not required to order any specific form of relief, it would have been a
better practice for the court to have found the specific amount owed and to have ordered that Goroshin
meet his obligations by a certain date, as the court did with its order concerning the sale of the marital
home.
6

right in question will not be insisted upon.” Dep’t of Human Servs. v. Bell, 1998

ME 123, ¶ 6, 711 A.2d 1292 (quotation marks omitted). When the trial court

determines that there is no waiver, we review any factual findings for clear error

and review de novo whether the facts are sufficient to constitute waiver. Dep’t of

Health & Human Servs. v. Pelletier, 2009 ME 11, ¶ 15, 964 A.2d 630.

      [¶9] McCarthy’s December 2014 statement to the Department of Health and

Human Services, which was before the court, indicates her understanding that

Goroshin continued to owe her child support for 2011. In addition, any delay on

McCarthy’s part in seeking to collect the 2011 arrearage did not constitute waiver.

We have previously stated, albeit in the context of actions brought by the

Department, that even a multi-year delay is not sufficient to constitute waiver if a

party eventually seeks to collect on the obligation and did not indicate that he or

she is voluntarily and knowingly waiving the right to support. See id. ¶ 16; see

also Bell, 1998 ME 123, ¶ 6, 711 A.2d 1292 (“Mere delay in the bringing of an

action . . . does not support a reasonable inference that the party has voluntarily

and knowingly relinquished the right to act.” (quotation marks omitted)).

Furthermore, the court did not err by determining that the parties’ cohabitation in

2011 did not release Goroshin from his obligation to pay child support, in light of

the fact that the only specific evidence that Goroshin paid various family expenses

was his own testimony.
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      [¶10] The court also did not err by finding Goroshin in contempt despite his

asserted belief that he was not obligated to pay child support for 2011. “A civil

contempt proceeding is a coercive, and therefore remedial, action brought to

benefit another party. The contemnor allegedly violated a court order directed

toward securing the rights of another party. The contempt proceeding is brought to

coerce compliance and to obtain for the other party the benefits of the court order.”

Wells v. State, 474 A.2d 846, 850 (Me. 1984). In a civil contempt proceeding

addressing an alleged failure to pay support for a period of time, the court must

determine, by clear and convincing evidence, whether a party did or did not

comply with a court order to pay support and, if the party did not comply, whether

he or she had the ability to comply. See M.R. Civ. P. 66(d)(2)(D).

      [¶11] We review factual findings forming the basis of a court’s decision

regarding contempt for clear error and review the ultimate judgment of contempt

for an abuse of discretion. Lewin v. Skehan, 2012 ME 31, ¶ 18, 39 A.3d 58. A

factual finding “is clearly erroneous when there is no competent evidence in the

record to support it.” Id. Here, Goroshin does not dispute that there was a court

order in place that required him to pay child support for the latter half of 2011, that

he did not pay child support for that period, and that he had the ability to do so. He

contends, though, that even if McCarthy did not “waive” her right to receive child
8

support, he reasonably believed that he was not obligated to pay child support for

2011.

        [¶12] The person alleged to be in contempt has a “right to be heard in

defense and mitigation.” M.R. Civ. P. 66(d)(2)(D). However, given that the court

did not find Goroshin’s explanation for his failure to pay the support ordered

persuasive, the court did not abuse its discretion by finding Goroshin in contempt.

B.      Child Support for 2012

        [¶13] Goroshin also contends that the court erred by finding that he had not

fully paid child support for 2012 and that he was in contempt for nonpayment for

that year. The record demonstrates that the parties agreed that Goroshin had paid

child support for 2012, and no evidence was presented that Goroshin did not pay

for that year. The court erred by finding that he did not pay child support for 2012

and therefore erred by finding him in contempt for that period of time. For this

reason, we vacate the portion of the judgment finding Goroshin in contempt for

nonpayment for 2012.

C.      Child Support for 2013 and 2014

        [¶14] Goroshin next contends that the court erred by finding that he owed

child support for 2013 and 2014. He asserts that McCarthy verbally agreed to

reduce his child support obligation during this period, and that this agreement was

binding on the parties and constituted a waiver on her part. Given McCarthy’s
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testimony disputing the existence of a verbal agreement between the parties, the

court did not err by finding that the evidence of waiver “was not particularly

reliable.” And, for the reasons discussed above, see supra ¶¶ 8-9, the court did not

err by determining that any delay on McCarthy’s part in pursuing collection of the

arrearage did not constitute a waiver of the child support obligation.

D.    Substantial Change in Circumstances

      [¶15] Goroshin also contends that the court erred by finding that there was

no substantial change in circumstances warranting a modification of his child

support obligation. We review a finding that there was no substantial change in

circumstances for clear error. Jabar v. Jabar, 2006 ME 74, ¶ 13, 899 A.2d 796.

The trial court’s judgment concerning child support is entitled to substantial

deference. Holbrook v. Holbrook, 2009 ME 80, ¶ 13, 976 A.2d 990. The court

reasonably determined, based on the record evidence, that Goroshin’s marijuana

business could generate increased income in the near future; that his purported

overhead expenses were not substantiated; and that, despite medical issues that led

him to quit his previous job, he had a generally “unfettered ability to work.” For

these reasons, the court did not err by finding no substantial change in

circumstances warranting a modification of Goroshin’s child support obligation.
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E.    Sale of Marital Home

      [¶16] Goroshin also asserts that the trial court erred by concluding that he

was obligated to sell the marital home and split the proceeds, as directed by the

divorce judgment, based on the court’s determination that McCarthy’s quitclaim

deed did “not obviate or alter in any way the requirement set forth by the

[j]udgment.”   The court’s conclusion regarding the effect of the deed on the

judgment is a legal determination that we review de novo. See Gray v. TD Bank,

N.A., 2012 ME 83, ¶ 10, 45 A.3d 735.

      [¶17] We have established that when a divorce judgment requires the sale of

a marital home, it imposes an in personam obligation on the parties, and that this

legal obligation is not undone if only one party holds legal title to the property.

See Fitzgerald v. Trueworthy, 476 A.2d 183, 185-86 (Me. 1984); see also Estate of

Gordan, 2004 ME 23, ¶¶ 12-15, 842 A.2d 1270. Goroshin’s obligation was not

vitiated by McCarthy’s transfer to him of any rights she held in the marital

property.   The language of the divorce judgment also demonstrates that the

obligation is not in any way contingent on who holds title to the marital home. The

judgment merely orders that the “property will be listed for sale [and] [w]hen sold,

if any profit remains, the parties will share it equally.” See Bonner v. Emerson,

2014 ME 135, ¶ 13, 105 A.3d 1023 (stating that a divorce judgment must be

enforced in accordance with the plain meaning of its language). We conclude that
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the court did not err by determining that Goroshin is still obligated to sell the

marital home and divide the proceeds pursuant to the terms of the divorce

judgment.3

F.       Admission of Insurance Letter

         [¶18]    Lastly, Goroshin contends that the court erred by admitting a

February 26, 2015, letter from an insurance carrier to McCarthy. At the hearing,

McCarthy testified that she signed the quitclaim deed to the marital home because

Goroshin threatened to not transfer title to a truck he left in her possession, thereby

preventing her from obtaining insurance payments for an accident, if she did not

sign. In support of her contention that she was forced to sign the deed under

duress, she proffered the letter, which stated that the insurance carrier had made

several attempts to obtain the necessary paperwork on the vehicle from Goroshin

before finally receiving it on April 11, 2013. Goroshin objected on the ground that

the letter was hearsay, but the court allowed McCarthy to introduce the letter for

the nonhearsay purpose of showing what McCarthy believed at the time she signed

the quitclaim deed.


     3
      Goroshin challenges the court’s statement that if he “really thought that part of the [j]udgment was
obviated by the conveyance of [McCarthy]’s interest in [the marital home] to him, he would have brought
the issue forward in any number of his motions to modify.” Contrary to his contention, Goroshin could
have moved under Maine Rule of Civil Procedure 60(b) for relief from the terms of the divorce judgment
regarding the marital home if he believed that this portion of the judgment had been satisfied or released
based on McCarthy’s assignment of her interest in the property. See Wardwell v. Wardwell,
458 A.2d 750, 752-53 (Me. 1983).
12

      [¶19] We review a ruling on the admissibility of evidence for clear error or

an abuse of discretion. See Bard v. Lord, 2010 ME 48, ¶ 8, 997 A.2d 101.

However, whether or not the court erred, we conclude that any error was harmless

because the court’s judgment regarding the marital home did not in fact rely on a

finding that McCarthy signed the quitclaim deed under duress. See In re Scott S.,

2001 ME 114, ¶¶ 24-25, 775 A.2d 1144.

G.    Conclusion

      [¶20] In summary, we vacate and remand the portion of the judgment

finding Goroshin in contempt for nonpayment of child support for 2012 but

otherwise affirm the judgment.

      The entry is:

                      Judgment on Goroshin’s amended motion to
                      modify is affirmed. That portion of the judgment
                      on McCarthy’s motion for contempt finding
                      Goroshin in contempt for nonpayment of child
                      support for 2012 is vacated. The judgment on
                      McCarthy’s motion for contempt is affirmed in all
                      other respects.
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On the briefs:

        Elliott L. Epstein, Esq., Owen Pickus, D.O., Esq. & Associates,
        Kennebunk, for appellant Igor Goroshin

        Sarah L. Glynn, Esq., Oxford Hills Law, South Paris, for
        appellee Kate T. (Goroshin) McCarthy



South Paris District Court docket number FM-2010-177
FOR CLERK REFERENCE ONLY
