MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	    2019	ME	32	
Docket:	      Yor-18-237	
Submitted	
  On	Briefs:	 January	17,	2019	
Decided:	     March	5,	2019	
	
Panel:	       ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                 DONALD	G.	DURKIN	
                                          	
                                         v.	
                                          	
                                  JOYCE	L.	DURKIN	
	
	
JABAR,	J.	

      [¶1]		Joyce	L.	Durkin	appeals	from	a	judgment	of	divorce	from	Donald	G.	

Durkin	 entered	 on	 Donald’s	 complaint	 by	 the	 District	 Court	 (Biddeford,	

Foster,	J.)	and	the	court’s	denial	of	her	motion	for	amended	or	clarified	findings	

and	for	reconsideration.		Joyce	asserts	that	the	trial	court	erred	by	concluding	

that	it	lacked	the	authority	to	award	spousal	support	from	nonmarital	assets	

and	by	declining	to	award	nominal	spousal	support.		Although	the	court	does	

have	the	authority	to	consider	a	spouse’s	nonmarital	assets	in	determining	the	

appropriateness	of	spousal	support	and	does	have	the	authority	to	secure	any	

such	 spousal	 support	 through	 a	 lien	 on	 nonmarital	real	 property,	 the	 court’s	

judgment	is	unclear	as	to	whether	the	court	believed	it	had	such	authority.		We	

vacate	and	remand.	
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                                  I.		BACKGROUND	

      [¶2]		Donald	filed	a	complaint	for	divorce	in	March	2016.		The	court	held	

a	 contested	 hearing	 in	 January	 2018	 and	 entered	 a	 judgment	 of	 divorce	 on	

April	10,	2018.		The	following	facts	are	from	the	court’s	explicit	findings,	all	of	

which	 are	 supported	 by	 competent	 evidence	 in	 the	 record.	 	 See	 Douglas	 v.	

Douglas,	2012	ME	67,	¶	26,	43	A.3d	965.			

      [¶3]		Donald	and	Joyce	Durkin	were	married	in	August	1980.		At	the	time,	

Donald	 was	 self-employed	 as	 a	 building	 contractor.	 	 In	 1985,	 Donald	

constructed	a	two-family	home	in	Buxton	on	property	owned	by	his	parents	for	

him,	Joyce,	and	his	parents	to	reside	in.		Donald	personally	provided	almost	all	

of	the	labor.		Donald	also	constructed	a	beauty	salon	attached	to	the	home	to	be	

operated	by	Joyce,	who	had	recently	graduated	from	cosmetology	school.			

      [¶4]		In	 1991,	Joyce	gave	birth	to	the	 parties’	son.		Following	the	son’s	

birth,	 Joyce	 began	 to	 work	 less	 at	 her	 beauty	 salon,	 which	 resulted	 in	 the	

business	being	less	profitable.		Later,	in	2003,	Donald’s	parents	deeded	him	the	

Buxton	property	solely	in	his	name.		Donald	and	Joyce	jointly	acquired	a	small	

adjacent	parcel	of	land	for	$10,000,	funded	through	a	home	equity	line	of	credit	

of	$75,000	that	was	secured	by	the	Buxton	property	Donald	had	received	from	

his	parents.		Donald	and	Joyce	used	the	remainder	of	the	line	of	credit	to	pay	off	
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various	debts.		At	the	time	of	the	divorce,	Donald	and	Joyce	owed	$75,000	on	

the	line	of	credit.			

       [¶5]		Due	to	multiple	physical	disabilities,	Donald	closed	his	contracting	

business	in	2015	and	began	working	as	a	driver	for	local	car	dealerships.		For	a	

period	 of	 time,	 Joyce	 worked	 in	 various	 other	 part-time	 positions	 until	 she	

suffered	a	serious	accident.			

       [¶6]		Based	on	these	findings,	the	court	set	aside	the	Buxton	property	to	

Donald	 as	 his	 nonmarital	 property.	 	 The	 court	 also	 awarded	 Donald	 the	

adjacent	parcel	of	land,	finding	that	it	had	no	value	independent	of	the	larger	

property.	 	 Further,	 at	 Donald’s	 request,	 the	 court	 ordered	 that	 he	 was	

responsible	for	almost	all	of	the	parties’	joint	debt.			

       [¶7]		Joyce	requested	that	the	court	enter	a	lump	sum	spousal	support	

order	secured	by	Donald’s	nonmarital	property.		The	court	denied	this	request,	

stating:	

       What	skews	the	picture	in	this	matter	is	the	award	of	the	residence	
       to	 Mr.	 Durkin.	 	 The	 equity	 in	 that	 property	 is	 substantial—
       $320,000.		On	its	face,	the	argument	by	Mrs.	Durkin’s	counsel	that	
       the	equity	in	the	property	presents	an	opportunity	for	a	lump	sum	
       payment	of	alimony	seems	fair	and	feasible.		But	it	overlooks	one	
       crucial	fact—the	property	is	[nonmarital].		The	[c]ourt	cannot	force	
       a	sale	of	or	loan	secured	by	that	asset	to	create	a	fund	for	payment	
       of	spousal	support	to	Mrs.	Durkin.	
       	
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Joyce	filed	a	motion	for	amended	or	clarified	findings	and	for	reconsideration,	

seeking	an	award	of	nominal	spousal	support	and	reconsideration	of	the	denial	

of	a	lump	sum	spousal	support	award.		See	M.R.	Civ.	P.	52(b),	59(e).		The	court	

denied	the	motion,	and	Joyce	timely	appealed.		See	M.R.	App.	P.	2B(c)(2)(B),	(D).			

                                     II.		DISCUSSION	

	      [¶8]		The	issue	before	us	is	whether	the	court	erred	as	a	matter	of	law	

when	 it	 concluded	 that	 it	 lacked	 the	 authority	 to	 force	 the	 sale	 of,	 or	 a	 loan	

secured	by,	 nonmarital	property.		 We	review	the	court’s	determination	of	its	

authority	de	novo	as	a	question	of	law.		Bonner	v.	Emerson,	2014	ME	135,	¶	9,	

105	A.3d	1023.	

       [¶9]		Joyce	argues	that	the	court	erred	by	stating,	as	a	matter	of	law,	that	

nonmarital	property	could	not	be	allocated	or	set	aside	to	her	for	purposes	of	

ordering	 a	 lump	 sum	 payment	 of	 spousal	 support.	 	 At	 other	 points,	 Joyce	

characterizes	the	court’s	reasoning	as	erroneously	concluding	that	it	lacked	the	

authority	to	make	such	an	award	from	the	nonmarital	assets.		In	fact,	the	actual	

wording	of	the	court’s	order	was	that	it	could	not	“force	a	sale	of	or	loan	secured	

by	the	[nonmarital	asset]	to	create	a	fund	for	the	payment	of	spousal	support.”		

It	 is	 not	 clear	 from	 this	 language	 whether	 the	 court	 refused	 to	 consider	 the	

value	 of	 Donald’s	 nonmarital	 property	 in	 determining	 whether	 to	 award	
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spousal	support	or	whether	the	court	believed	it	lacked	the	authority	to	order	

that	any	lump	sum	spousal	support	award	be	secured	by	Donald’s	nonmarital	

property.			

	      [¶10]	 	 In	 determining	 whether	 an	 award	 of	 spousal	 support	 is	

appropriate,	the	court	has	significant	discretion	in	both	“whether	and	in	what	

amount	to	award	spousal	support,”	Jandreau	v.	LaChance,	2015	 ME	 66,	¶	15,	

116	A.3d	1273,	with	the	bounds	of	that	discretion	defined	by	factors	set	forth	

in	19-A	M.R.S.	§	951-A(5)	(2018).		As	part	of	this	determination,	the	court	must	

consider	 not	 only	 each	 spouse’s	 current	 income,	 but	 also	 each	 spouse’s	 total	

financial	resources,	including	nonmarital	assets.		See	19-A	M.R.S.	§	951-A(5)(B),	

(P)(1),	(Q);	Smith	v.	Smith,	419	A.2d	1035,	1039	(Me.	1980).	

	      [¶11]		Recognizing	this,	in	Miliano	v.	Miliano	we	explained	that	a	“court	

has	considerable	authority	to	order	spousal	support	in	a	manner	that	reflect[s]	

the	 parties’	 contributions	 to	 the	 marriage,	 and	 to	 provide	 reimbursement	 as	

appropriate.”		2012	ME	100,	¶	28,	50	A.3d	534.		There,	because	we	could	not	

discern	the	court’s	intent	in	awarding	a	lower	amount	of	spousal	support	given	

the	way	it	allocated	real	property,	we	remanded	the	case	for	clarification.		Id.	

¶¶	 27-28.	 	 Importantly,	 we	 stated	 that	 “if	 it	 deems	 it	 necessary,	 the	 court	 is	

empowered	 to	 impose	 a	 lien	 on	 the	 nonmarital	 property	 set	 aside	 to	 [the	
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husband]	to	ensure	compliance	with	its	spousal	support	award	to	[the	wife].”		

Id.	¶	29	(emphasis	added);	see	also	19-A	M.R.S.	§	951-A(6),	(7)	(2018);	Booth	v.	

Booth,	 640	A.2d	 1063,	 1065	 (Me.	1994)	 (“[A]	 Maine	 divorce	 court	 has	 the	

authority	 to	 impose	 a	 lien	 to	 enforce	 the	 remedies	 granted	 pursuant	 to	 a	

divorce	judgment.”).	

	     [¶12]		Here,	in	considering	whether	or	not	to	award	spousal	support,	the	

court	properly	considered	the	length	of	the	marriage,	the	age	of	the	parties,	the	

income	 history	 and	 income	 potential	 of	 the	 parties,	 and	 the	 contributions	 of	

Joyce	 as	 a	 homemaker.	 	 See	 19-A	 M.R.S.	 §	 951-A(5).	 	 The	 court	 further	

acknowledged	 that	 Donald	 had	 nonmarital	 property	 with	 substantial	 equity	

($320,000),	 but	 was	 also	 saddled	 with	 virtually	 all	 of	 the	 parties’	 debt	

($117,900).	 	 With	 regard	 to	 Joyce’s	 request	 that	 the	 court	 award	 lump	 sum	

spousal	support	secured	by	that	property,	the	court	stated	that,	“[on]	its	face,	

the	argument	by	[Joyce]	that	the	equity	in	the	property	presents	an	opportunity	

for	a	lump	sum	payment	of	alimony	seems	fair	and	feasible,	[b]ut	it	overlooks	

one	crucial	fact—the	property	is	[nonmarital].		The	[c]ourt	cannot	force	a	sale	

of	 or	 a	 loan	 secured	 by	 that	 asset	 to	 create	 a	 fund	 for	 payment	 of	 spousal	

support	to	[Joyce].”		(emphasis	added).			
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	     [¶13]	 	 This	 statement	 by	 the	 court	 is	 problematic	 because	 the	 court	 is	

allowed	 to,	 and	 should,	 consider	 Donald’s	 nonmarital	 assets	 as	 a	 factor	 in	

ascertaining	 whether	 spousal	 support	 is	 warranted.	 	 See	 19-A	 M.R.S.	

§	951-A(5)(B),	(P)(1),	(Q);	Smith,	419	A.2d	at	1039.		If	the	court	determines	that	

spousal	support	is	appropriate,	then	the	court	could	order	a	lump	sum	payment	

secured	 by	 a	 lien	 on	 Donald’s	 nonmarital	 real	 property.	 	 See	 19-A	 M.R.S.	

§	951-A(3),	(6),	(7)	(2018);	Booth,	640	A.2d	at	1065	(stating	that	a	divorce	court	

has	 the	 authority	 to	 impose	 a	 lien	 on	 real	 property	 located	 within	 Maine	 to	

enforce	 a	 spousal	 support	 order).	 	 From	 the	 court’s	 language	 in	 its	 order,	 it	

appears	that	the	court	erred	in	its	legal	analysis	regarding	its	ability	to	consider	

nonmarital	 property	 in	 determining	 whether	 to	 award	 spousal	 support,	 and	

also	in	its	ability	to	fashion	a	remedy	to	enforce	any	such	award.	

	     [¶14]		The	facts	establish	that	Donald’s	 nonmarital	real	property	has	 a	

value	of	$320,000.		On	remand,	the	court	should	consider	this	value	along	with	

the	other	factors—including	the	allocation	of	debt—that	the	court	considered	

in	determining	whether	Joyce	 is	entitled	to	spousal	support.		See	19-A	M.R.S.	

§	951-A(5).		If	the	court	determines	that	an	award	of	lump	sum	spousal	support	

is	 warranted,	 then	 it	 may	 consider	 whether	 any	 such	 spousal	 support	 order	
8	

should	be	secured	by	a	lien	on	Donald’s	nonmarital	real	property.		See	Booth,	

640	A.2d	at	1065.			

         The	entry	is:	
                     Judgment	vacated.		Remanded	for	clarification	of	
                     the	 court’s	 analysis	 and	 conclusions,	 and	 for	
                     reconsideration	as	deemed	necessary.	
	
	     	      	      	       	     	
	
Dana	 E.	 Prescott,	 Esq.,	 Prescott	 Jamieson	 Murphy	 Law	 Group,	 LLC,	 Saco,	 for	
appellant	Joyce	L.	Durkin	
	
Benjamin	P.	Campo,	Jr.,	Esq.,	Douglas	McDaniel	&	Campo	LLC	PA,	Westbrook,	
for	appellee	Donald	G.	Durkin	
	
	
Biddeford	District	Court	docket	number	FM-2016-124	
FOR	CLERK	REFERENCE	ONLY	
