MAINE SUPREME JUDICIAL COURT                                        Reporter of Decisions
Decision:   2016 ME 43
Docket:     Yor-15-188
Submitted
 On Briefs: September 28, 2015
Decided:    March 24, 2016

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



                                   JAMES A. EHRET

                                            v.

                                 DEBORAH B. EHRET

JABAR, J.

         [¶1] James A. Ehret appeals from a judgment of divorce from Deborah B.

Ehret entered by the District Court (York, Janelle, J.). He contends that the court

erred in determining his gross income and abused its discretion in awarding

spousal support and distributing the parties’ marital property.       We vacate the

judgment in part and remand for further proceedings.

                     I. FACTUAL AND PROCEDURAL HISTORY

         [¶2]    The trial court’s supported factual findings provide the following

limited background for this appeal. James and Deborah were married in July 1988.

They are the parents of an adult son, an adult daughter, and a minor son. James is

an airline pilot and has a greater earning capacity than Deborah. Due to her
2

physical and mental health issues, Deborah has a limited ability to work and has

worked little in recent years.

      [¶3] In April 2013, James filed a complaint for divorce. The court held a

contested three-day hearing in January 2015, during which Deborah requested an

award of spousal support in the amount of $1,500 per month. On March 4, 2015,

the court entered a judgment of divorce and parental rights and responsibilities

regarding the parties’ minor son.

      [¶4] In its judgment, the court recited the parties’ agreement that their minor

son needed to be placed in a residential program to treat his behavioral and mental

health issues, and it crafted a parental rights order that allocated the right to

provide primary residence of the minor son based upon the contingencies of the

son’s placement. During an “interim period”—commencing on the date of the

judgment and terminating upon the son’s completion of or discharge from a

residential treatment program—primary residence was granted to James. The court

approved a deviation from the child support guidelines and imposed no child

support obligation upon Deborah during this period. During a “post-residential

treatment period”—commencing on the son’s completion of or discharge from a

residential treatment program, or on March 15, 2015, if the son was not placed in a

program—the parties were to share primary residence of the minor son. The court

ordered James to pay Deborah weekly child support of $225 during this period
                                                                                                           3

“based on the incomes set forth in the . . . Child Support Worksheet and

Child Support Order” attached to the judgment. The worksheet indicates that the

court found that James’s annual gross income is $95,000 and that Deborah’s is

$25,000.

        [¶5]     The court awarded Deborah three bank accounts and the marital

residence and mortgage, and set aside to her a 2013 Jeep Rubicon as non-marital

property. James was awarded two all-terrain vehicles, two bank accounts, and the

equity in and debt on a 2009 Toyota Tacoma.                             The court assigned James

responsibility for the outstanding loan against his retirement account and divided

the balance of that account evenly between the parties. James was also assigned

responsibility for two credit card debts and $28,000 in annual college tuition

expenses for the parties’ adult son. Deborah was assigned responsibility for one

credit card debt, a utility debt, and an orthodontic debt.1

        [¶6] The court ordered James to pay Deborah $550 per week in general

spousal support until the death of either party “to allow both parties to maintain a

reasonable standard of living after the divorce.” In arriving at this award, the court

cited the length of the parties’ marriage; Deborah’s “limited earning capacity given




   1
      The judgment does not set forth the court’s property distribution in table form. It assigns a monetary
value to only one of the allocated liabilities and indicates the marital or non-marital nature of only two of
the allocated assets.
4

the state of her physical and mental health, her age and her recent employment

history”; and James’s relatively greater earning capacity as an airline pilot.

        [¶7] The judgment was entered on the docket on March 4, 2015. Two days

later, on March 6, the court granted the parties’ motion to withdraw $51,000 from

James’s retirement account for the purpose of funding the minor son’s placement

in a residential treatment program. With the parties’ consent, the court ordered the

parties to share liability for that withdrawal in equal proportions. On March 18,

2015, James filed a motion for specific findings and conclusions, see M.R.

Civ. P. 52(a),2 and a motion for a new trial and to alter or amend the judgment,

see M.R. Civ. P. 59(a), (e), asserting that the court had abused its discretion by

imposing a spousal support obligation that exceeded his ability to pay and by

allocating Deborah a larger share of the marital estate. The court summarily

denied the motions and James appealed.

                     II. ANALYSIS OF THE ISSUES ON APPEAL

        [¶8] On appeal, James contends that the court erred or abused its discretion

in arriving at its finding of his gross income as indicated on the child support

worksheet. He argues that the court abused its discretion by imposing a spousal

support obligation that (a) is not supported by adequate findings, (b) does not


    2
      M.R. Civ. P. 52(a) was amended after James filed his post-judgment motion, see 2015 Me. Rules 15
(effective Sept. 1, 2015), but not in any way that affects this appeal.
                                                                                                          5

reflect a consideration of all relevant statutory factors, and (c) exceeds his ability to

pay. He also challenges the court’s unequal distribution of the parties’ marital

property. Finally, he contends that the court exceeded its statutory authority by

assigning him liability for the college tuition expenses of the parties’ adult son.

Before addressing these contentions, we consider the impact of the court’s denial

of James’s Rule 52 motion on the standard of appellate review.

        [¶9] After the entry of a judgment, if an affected party timely moves for

findings pursuant to M.R. Civ. P. 52,3 the trial court must ensure that the judgment

is supported by express factual findings that are based on record evidence, are

sufficient to support the result, and are sufficient to inform the parties and any

reviewing court of the basis for the decision. Douglas v. Douglas, 2012 ME 67,

¶ 26, 43 A.2d 965. In the absence of a motion for specific factual findings, we

ordinarily assume that a trial court found all of the facts necessary to support its

judgment. Bayley v. Bayley, 602 A.2d 1152, 1154 (Me. 1992). However, “when a

motion for findings has been [timely] filed and denied, we cannot infer findings

from the evidence in the record.” Douglas, 2012 ME 67, ¶ 27, 43 A.3d 965. In

these circumstances, if the judgment does not include specific findings that are



   3
      Pursuant to M.R. Civ. P. 52(a), the deadline for filing a motion for findings is seven days “after the
statement of the decision in open court, or the entry of the decision or judgment on the docket, whichever
comes first.” Pursuant to M.R. Civ. P. 52(b), the deadline for filing a motion for amended or additional
findings is fourteen days after entry of the judgment.
6

sufficient to support the result, appellate review is impossible and the order

denying findings must be vacated. See id.

      [¶10] Fourteen days after entry of the judgment, James filed a motion,

pursuant to M.R. Civ. P. 52(a), for specific factual findings that (1) his income in

2014 was consistent with the figures shown on his financial statement; (2) the

court’s property division allocated more than three times as much debt to him than

to Deborah; (3) the value of Deborah’s nonmarital bank accounts exceeded

$400,000; (4) the court’s spousal support award exceeded Deborah’s request for

spousal support by more than $10,000 per year; and (5) the spousal support award

exceeded his ability to pay. To the extent that the motion requested findings on the

issue of James’s income, we disregard its caption and treat it as a timely Rule 52(b)

motion for further findings because the court made an express finding about this

issue. See Dube v. Dube, 2016 ME 15, ¶ 10 n.8, --- A.3d ---.

      [¶11] To the extent that the motion requested findings regarding the values

of the assets and liabilities subject to the distributive order and an explanation of

how those facts affected the court’s award of spousal support, the motion was not

timely filed because the court’s judgment contained no findings on these issues.

See id. However, the determination of James’s income necessarily plays a role in

(1) the economic reality of James’s post-divorce circumstances—a factor that the

court must have considered in distributing the marital estate—and (2) James’s
                                                                                  7

ability to pay any award of spousal support—a factor that the court must have

considered in awarding spousal support.           See 19-A M.R.S. §§ 951-A(5)(B),

953(1)(C) (2015). Therefore, if we conclude that the court erred by failing to

provide the findings requested on James’s income, the court, on remand, would

have to reconsider the relationship between James’s income, the order of property

distribution, and the order of spousal support.

      [¶12] Because this appeal follows the denial of James’s timely motion for

additional findings on the issue of his income, we confine our review to the court’s

explicit findings on that issue and consider whether those findings are both

supported by the record and adequate to support the contested provisions of the

judgment.

A.    James’s Gross Income

      [¶13] James contends that the trial court either clearly erred in finding that

he has annual gross income of $95,000, or abused its discretion by imputing

income to him without first determining that he was voluntarily underemployed.

      [¶14] If a divorce court finds that a party is voluntarily underemployed, the

court may impute income to that party for the purpose of calculating that party’s

child or spousal support obligations. Koszegi v. Erickson, 2004 ME 113, ¶ 14,

855 A.2d 1168; Wrenn v. Lewis, 2003 ME 29, ¶ 18, 818 A.2d 1005 (citing

19-A M.R.S.A. § 951-A(5)(B), (D), (E) (Supp. 2002) and 19-A M.R.S.A.
8

§ 2001(5)(D) (1998)). When a divorce court imputes income to a party and takes

judicial notice of facts for that purpose, its judgment should contain findings

regarding the amount of and basis for the income imputed. See Payne v. Payne,

2006 ME 73, ¶ 11, 899 A.2d 793. “A court’s determination of a party’s income in

a divorce proceeding is a factual finding that we review for clear error.” Id. ¶ 7. In

applying the clear error standard, we will vacate a factual finding if it is not

supported by sufficient, competent record evidence. See id. ¶¶ 7, 9-11.

      [¶15] The divorce judgment contains no findings regarding James’s income.

The only indication of the court’s income determinations is found in the child

support worksheet attached to the judgment, which lists James’s annual gross

income as $95,000. We are unable to determine how the court arrived at this

figure. James’s financial statement indicates that he has an annual gross income of

$87,012. At trial, some evidence was presented that may have raised a question of

whether    James      was    voluntarily   underemployed,       and    whether     his

employment-related expense reimbursements should be included in his income.

See 19-A M.R.S. § 2001(5)(B), (D) (2015); Dumas v. Milotte, 2016 ME 3,

¶ 9, --- A.3d ---. However, in the absence of explicit findings and conclusions

regarding the factual and legal basis for the court’s gross income determination, we

cannot review that determination effectively. Williams v. St. Pierre, 2006 ME 10,

¶ 9, 889 A.2d 1011.
                                                                                  9

      [¶16]   Because the court denied James’s motion for specific findings

regarding his income, we cannot assume that the court implicitly found facts

sufficient to support its income determination, and we cannot decide whether the

court’s findings were clearly erroneous. See id. ¶¶ 9-10. We therefore vacate the

court’s child support order and underlying gross income determination, and

remand for the issuance of findings and conclusions on the income issues raised in

James’s motion for further findings. See Dumas, 2016 ME 3, ¶ 10, --- A.3d ---.

B.    Spousal Support

      [¶17]   Because the determination of James’s income provides a factual

foundation for any award of spousal support, see 19-A M.R.S. § 951-A(5)(B), (E)

(2015), we must also vacate the order of spousal support. On remand, the court

must consider—and should explain how it considered—all of the relevant factors

set forth in the spousal support statute, 19-A M.R.S. § 951-A(5) (2015). This

explanation should include, at a minimum, a discussion of how the court assessed

Deborah’s earning capacity, and findings regarding the effect of the child support

order and property distribution order on James’s ability to pay any award of

spousal support. See 19-A M.R.S. § 951-A(5)(B), (D)-(E).

C.    Property Distribution

      [¶18] Finally, because the court must consider the determination of James’s

income in crafting an equitable distribution of the parties’ assets and liabilities,
10

see 19-A M.R.S. § 953(1)(C), and because the court must consider the

consequences of its distributive order in assessing any award of spousal support,

see 19-A M.R.S. § 951-A(5)(P)(1), we must also vacate the order distributing the

parties’ property. On remand, the court shall classify the parties’ property as

marital or nonmarital, see Ramsdell v. Worden, 2011 ME 55, ¶ 11, 17 A.3d 1224;

assign monetary values to the property subject to the distributive order to the extent

that the parties offered credible information on that property, see Laqualia v.

Laqualia, 2011 ME 114, ¶ 12, 30 A.3d 838; display the property distribution in

table form;4 and explain its rationale for the ultimate distribution of the parties’

marital estate.

         The entry is:

                         Order denying motion for further findings with
                         regard to James’s income vacated. Child support
                         order, spousal support order, and property
                         distribution vacated.     Remanded for further
                         proceedings consistent with this opinion.




     4
      “We have consistently encouraged courts to include tables in their judgments demonstrating the
overall distribution of property to the divorcing parties.” Bond v. Bond, 2011 ME 54, ¶ 19, 17 A.3d 1219.
“Such a table is valuable to the parties and facilitates appellate review because it demonstrates that the
court considered the overall allocation of property and debts, and under[stood] the ultimate effect of the
divorce judgment.” Id.
                                                                     11




On the briefs:

        Gene R. Libby, Esq., and Tara A. Rich, Esq., Libby O’Brien
        Kingsley & Champion, Kennebunk, for appellant James A.
        Ehret

        Wendy Moulton Starkey, Esq., Rose Law, LLC, York, for
        appellee Deborah B. Ehret



York District Court docket number FM-2013-58
FOR CLERK REFERENCE ONLY
