MAINE SUPREME JUDICIAL COURT                                        Reporter of Decisions
Decision:    2014 ME 120
Docket:      Yor-14-37
Submitted
  On Briefs: September 23, 2014
Decided:     November 4, 2014

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



                             CYNTHIA (MARTIN) REMICK

                                            v.

                                    KEVIN MARTIN

GORMAN, J.

         [¶1]     Kevin Martin appeals from a judgment of the District Court

(Biddeford, Foster, J.) denying his various post-judgment motions in connection

with his 2010 divorce from Cynthia (Martin) Remick. Martin challenges several of

the court’s factual findings on which the court based its denial. We vacate and

remand for reconsideration.

                                   I. BACKGROUND

         [¶2] Martin and Remick divorced on July 27, 2010. They have one minor

child, born in 2003. In the divorce judgment, the court (Janelle, J.) awarded sole

parental rights and responsibilities along with primary residential care to Remick

and granted Martin extensive contact on weekdays, weekends, and holidays. The
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court also ordered Martin to receive counseling focused on domestic violence and

provide Remick with information about the counseling.

      [¶3] In the spring and summer of 2011, the parties filed various motions for

contempt, enforcement, and modification. In February of 2012, by agreement of

the parties, the court (Driscoll, J.) appointed a guardian ad litem for the parties’

minor child to assist the court in planning for the child’s needs. After the final

hearing on the motions, the court found Martin in contempt for failing to comply

with the divorce judgment’s counseling requirements. It found, inter alia, that

Martin’s behavior demonstrated “his continued attempts to ignore the court orders

in place and do what he pleases in spite of the negative impact upon his son’s

emotional health.”

      [¶4] On September 12, 2012, the court issued an amended divorce judgment

reducing Martin’s contact with his child to three Sundays per month and ordering

that even this contact was “conditioned upon Kevin’s enrollment in the Violence

No More BIP [Batterer’s Intervention Program] within 30 days.” The judgment

also provided that, “[u]pon proof of successful completion” of the program,

Martin’s contact with the child would revert to the schedule outlined in the 2010

divorce judgment.    We affirmed the amended judgment.          Remick v. Martin,

Mem-13-66 (June 11, 2013).
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      [¶5] In July of 2013, Remick moved to “stay the contempt order” and

further modify the divorce judgment.      Martin responded in opposition to the

motion, and the court (Foster, J.) scheduled a conference for September 16. On

that date, Martin filed motions for contempt and to enforce. He asserted that

although he had provided Remick with proof of his completion of the Violence No

More program, she had failed to permit his contact with their child to revert to the

schedule created by the 2010 divorce judgment. During the conference, the court

ordered Remick’s counsel to prepare a release for Martin’s signature that would

notify the director of the Violence No More program that Martin was permitting

the director to speak with Remick’s attorney.

      [¶6] On November 4, 2013, the court conducted a hearing on Martin’s

pending motions. In its order on the motions, issued just over a month later, the

court found that Martin “continues to engage in controlling behavior similar to that

which caused the [c]ourt concern in the summer of 2012” and, therefore, Martin

failed to show “successful completion” of the Violence No More program as

required by the 2012 amended judgment. In response to a motion by Martin, the

court issued further findings on January 14, 2014. Among its other findings, the

court supported its conclusion that Martin’s behavior had not changed by finding

that, even after completing the Violence No More program, Martin had filed a

criminal complaint against Remick’s parents when they accompanied Remick to an
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exchange of the child and had failed to comply with the court’s order to provide a

release for Remick’s attorney to speak with the director of the Violence No More

program. Martin timely appealed.

                                    II. DISCUSSION

      [¶7]    Martin challenges the sufficiency of the evidence supporting the

court’s factual findings regarding his failure to successfully complete the Violence

No More program, on which the court relied in denying Martin increased contact

with his child. We review for clear error the court’s factual findings, and we

review the court’s ultimate decision on the motion for an abuse of discretion.

Charette v. Charette, 2013 ME 4, ¶ 15, 60 A.3d 1264. Clear error exists and

requires reversal of a finding if

      (1) there is no competent evidence in the record to support it, or (2) it
      is based on a clear misapprehension by the trial court of the meaning
      of the evidence, or (3) the force and effect of the evidence, taken as a
      total entity, rationally persuades to a certainty that the finding is so
      against the great preponderance of the believable evidence that it does
      not represent the truth and right of the case.

In re A.M., 2012 ME 118, ¶ 29, 55 A.3d 463 (quotation marks omitted).

      [¶8] On appeal, we have the benefit of transcripts of the September 16,

2013, conference and the November 4, 2013, hearing.               Those transcripts

demonstrate that several of the facts on which the court denied Martin relief were

not supported by the record evidence. First, the court’s finding that Martin filed a
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criminal complaint against Remick’s parents after completing the Violence No

More Program in 2013 reflects a misapprehension of Remick’s testimony.

Remick’s testimony, although somewhat confusing, is that Martin filed that

complaint before the issuance of the amended divorce judgment. Remick concedes

that the court’s finding misstates the timing of the incident. The timing of this

event is critical because the court used this specific evidence of Martin’s behavior

in concluding that he had not successfully completed the Batterers’ Intervention

Program.

      [¶9] In addition, the finding that Martin refused to comply with a court

order to provide a release for the director of the Violence No More program is not

supported by the record. During the September 16, 2013, conference, the court

ordered Remick’s attorney to draft a release for Martin’s signature and to share the

release with Martin before sending it to the director. The attorney did not follow

this order. Instead, Remick’s attorney emailed the director immediately after the

September 16, 2013, hearing to inform him of the November 4, 2013, hearing and

to ensure that a release would be signed.      On November 4, 2013, Remick’s

attorney stated to the court that the director indicated in his reply email that he

would take care of the release. On cross-examination by Remick’s attorney, the

director stated that he did have Martin sign a release on October 30, 2013.

Nevertheless, Remick’s attorney was unaware that Martin signed a release before
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the November 4, 2013, hearing and, as a result, did not have access to the director

prior to the hearing. In its findings, the court, apparently misremembering its order

to Remick’s attorney to share the release with Martin before sending it to the

director, stated that the court “did not direct” Remick’s attorney to prepare a

release for Martin to sign and that Martin “refused to sign” the release. Again,

Remick concedes that her attorney was directed to prepare the release. Because

the court did order Remick’s attorney to provide Martin with a release and

Remick’s attorney failed to do so, the court’s determination that Martin had refused to

sign a release is not supported by the record.

      [¶10]    These findings were not supported by competent evidence, and,

therefore, they should not have been used by the court to determine that Martin had

failed to successfully complete the program. Because these unsupported findings

did form the basis of the court’s conclusion, they are not harmless errors. See

Shaw v. Packard, 2005 ME 122, ¶ 13, 886 A.2d 1287 (“Any alleged error of the

trial court that does not affect the substantial rights of a party is harmless and

therefore must be disregarded.”). We therefore vacate the judgment and remand

the matter to the District Court for it to reconsider its decision in the absence of

these unsupported findings. See Cole v. Cole, 561 A.2d 1018, 1021 (Me. 1989)
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(remanding a divorce judgment for a reconsideration based on the clear error of

one factual finding regarding the value of a pension fund).1

        The entry is:

                        Judgment vacated. Remanded for reconsideration
                        on the record as already established.




   1
     Martin did not raise the issue of whether the court correctly interpreted the amended judgment. If he
had, we would have reviewed de novo whether the amended judgment’s requirement of successful
completion is “reasonably susceptible to different interpretations and therefore ambiguous.” Ramsdell v.
Worden, 2011 ME 55, ¶ 17, 17 A.3d 1224.

    “When a judgment is unambiguous, it must be enforced in accordance with the plain meaning of the
language in the judgment. Courts may not, under the guise of a clarification order, make a material
change that modifies the provisions of the original judgment.” Burnell v. Burnell, 2012 ME 24, ¶ 15,
40 A.3d 390 (quotation marks omitted) (citation omitted); see also Ramsdell v. Worden, 2011 ME 55,
¶ 17, 17 A.3d 1224.

    When a judgment is ambiguous “[w]e will . . . review a court's clarification of an ambiguity in a
judgment for abuse of discretion.” Thompson v. Rothman, 2002 ME 39, ¶ 7, 791 A.2d 921. “The focus
of this review will remain whether the court's construction of its prior judgment is consistent with its
language read as a whole and is objectively supported by the record.” Id. ¶ 8 (quotation marks omitted).
We would also have weighed whether “the same judge who issued the original judgment also made the
clarification,” and we would have reviewed factual findings based on extrinsic evidence for clear error.
Id.

    It appears from the judgment before us that the court did find “successful completion” to be
ambiguous and interpreted “successful completion” to require that “Mr. Martin understood his actions
constituted abuse and was prepared to make the changes necessary to avoid repeated instances of such
behavior.” On remand, the court may choose to revisit whether the amended judgment’s requirement of
“successful completion” is ambiguous and, if so, what the court interprets the “successful completion”
provision to require.
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On the briefs:

        Kevin Martin, appellant pro se

        Timothy E. Robbins, Esq., South Portland, for appellee Cynthia
        (Martin) Remick



Biddeford District Court docket number FM-2008-346
FOR CLERK REFERENCE ONLY
