MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision: 2016 ME 86
Docket:   Cum-15-459
Argued:   March 3, 2016
Decided:  June 7, 2016

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



                            SELCUK KARAMANOGLU

                                         v.

                CATHERINE (KARAMANOGLU) GOURLAOUEN

HJELM, J.

         [¶1] Catherine Gourlaouen appeals, and Selcuk Karamanoglu cross-appeals,

from a divorce judgment entered in the District Court (Portland, Eggert, J.) after it

accepted and adopted the reports of a referee. Gourlaouen challenges aspects of

the judgment relating to parental rights and responsibilities, and to the

determination of the parties’ interests in properties located in Yarmouth and

France. In his cross-appeal, Karamanoglu alleges that he was not given proper

credit for contributions he made toward the purchase of the France property.

We affirm in part, vacate in part, and remand for further proceedings.

                                I. BACKGROUND

         [¶2] After Karamanoglu filed a complaint for divorce in February 2014 and

with the agreement of the parties, the court (Cadwallader, M.) appointed a referee
2

to address all contested issues.     See 19-A M.R.S. § 252(1)(A) (2015); M.R.

Civ. P. 53, 119.   The referee held bifurcated hearings on the parenting and

financial issues, and then issued separate reports containing his findings of fact and

recommended disposition of the contested issues.          The reports included the

following facts, which bear on the issues on appeal, are based on competent

evidence in the record, and were adopted by the court (Eggert, J.) in its divorce

judgment.

      [¶3] The parties were married in Brest, France, in 2006. They have one

minor child, who was born in 2008.

      [¶4] In January 2014, Gourlaouen filed a complaint for protection from

abuse against Karamanoglu.         After a contested hearing, the District Court

(Portland, Moskowitz, J.) issued a protection order based on findings that

Karamanoglu had abused Gourlaouen and the child.            Under the terms of the

protection order, Karamanoglu was limited to supervised contact with the child.

The child’s therapist and the guardian ad litem, who was appointed during the

divorce proceeding to represent the child’s best interest, later agreed that it was in

the child’s best interest to have unsupervised visitation with Karamanoglu.

Karamanoglu became engaged in counseling to learn to maintain a “strong and

healthy relationship” with his son, and, as the referee found, was “strongly

motivated to have a good and loving relationship with” him. Based on evidence
                                                                                 3

that included the opinions of the child’s therapist and the guardian ad litem, the

referee found that Karamanoglu does not pose a risk of harm to the child and

recommended shared parental rights and responsibilities, including shared primary

residence and care.

      [¶5] The referee recommended that the parties be required “to participate in

co-parenting counseling with a provider in private practice,” who would engage

“with the parents individually and, if she or he thinks appropriate, together.” The

referee also recommended a requirement that the child continue counseling with a

therapist but “shall not participate in mental health counseling with multiple

providers simultaneously without the express[] knowledge and consent of

[the child’s therapist] and the co-parenting provider.” Additionally, the referee

recommended a provision in the judgment requiring the parties to mediate any

dispute regarding parenting issues before they could seek judicial recourse.

      [¶6] In a separate report, the referee addressed property issues. The parties

jointly own properties in Primelin, France; Freeport; and Yarmouth. Two days

before the parties married, they entered into a standard French marriage contract,

which the parties agree is valid and enforceable, and provides that the division of

property is governed by French law. The contract includes a “separation-of-assets

regime,” which is commonly used in France. Under the regime, each spouse’s

property rights are determined by his or her respective contributions to the
4

acquisition of the property rather than by title. Based on the contract and French

law, the referee determined that there were several principles that were relevant to

contested property division issues: that a spouse’s initial payment to acquire real

property is treated as a capital contribution and is recoverable by the payor spouse,

even if the asset decreases in value; that loan payments made over the course of

time, in contrast, are deemed to be “contribution[s] to ordinary marital expenses,”

and the equity resulting from those payments is presumptively divided equally

between the spouses; and that any appreciation in the value of real property, which

is called the profit subsistant, is allocated between the spouses in proportion to

their financial interests as determined by their respective capital contributions and

contributions to ordinary marital expenses.

      [¶7] Karamanoglu and Gourlaouen supplemented the standard marriage

contract with a clause stating that “the parties agree specifically that in the case of

divorce, [Gourlaouen] will have to pay her husband a sum equivalent to half of the

value of the buildings belonging to her at the time of divorce and acquired during

the marriage.” Because the only property that could be covered by this clause is

the property that is located in Primelin, which was acquired in Gourlaouen’s name

six days after the marriage, the clause has been described in this proceeding as

“the Primelin clause.” Despite including it in the contract, both parties asserted to

the referee that the Primelin clause was unenforceable because, as was explained
                                                                                   5

by each party’s expert witness on French matrimonial law, its meaning is unclear.

Karamanoglu paid $815,144 for Gourlaouen to acquire the Primelin property in her

name alone. Gourlaouen did not contribute toward its purchase. The referee found

that at the time of the hearing, its value was $500,000. The referee recommended

that the Primelin property be set aside to Gourlaouen but that in the overall

property division Karamanoglu be credited with half of the amount he paid when

Gourlaouen acquired it.

      [¶8] During the marriage, the parties bought the Yarmouth property for

$4.3 million. Both parties made initial contributions toward the purchase price,

although Karamanoglu’s contribution exceeded Gourlaouen’s. The referee treated

these initial payments as separate capital contributions of the parties. The parties

financed the balance of the purchase price through a loan from Karamanoglu’s

brother. During the marriage, the parties made payments toward the loan, which

the referee treated as equal contributions by the parties to ordinary marital

expenses rather than as additional capital contributions. By the time of the hearing,

the value of the property had increased to $5 million. The referee quantified the

amounts of the parties’ separate interests in the property based on their respective

initial capital contributions, and an attribution of the loan payments that is equal

between the parties, with the resulting shares increased proportionally by the

profit subsistant.   Based on the referee’s recommendation, the judgment
6

establishes Karamanoglu’s and Gourlaouen’s shares of the equity in the Yarmouth

property to be approximately $3.1 million and $1.4 million respectively.

      [¶9] The referee recommended that the Yarmouth and Freeport properties

should be set aside to Karamanoglu; that Gourlaouen be awarded the Primelin

property; and that as an “equalization payment,” Karamanoglu pay approximately

$1 million to Gourlaouen. The referee also recommended that Karamanoglu be

required to pay Gourlaouen spousal support of $3,800 per month for five years.

      [¶10] Both parties filed objections to the referee’s reports. After holding a

hearing, the court denied all objections, and adopted and incorporated the

provisions of the referee’s reports into a divorce judgment entered on August 28,

2015. Gourlaouen’s appeal and Karamanoglu’s cross-appeal followed.

                                II. DISCUSSION

      [¶11]   When—as it did here—a court accepts a referee’s report and

incorporates its findings and conclusions into the judgment, the findings of the

referee become the trial court’s findings, and we review those findings directly for

clear error. Wechsler v. Simpson, 2016 ME 21, ¶ 12, 131 A.3d 909. Those

“findings are entitled to very substantial deference” because of the referee’s

opportunity to observe and assess the witnesses’ testimony. Id. (quotation marks

omitted). We review the referee’s recommendations regarding parental rights and

property division for an abuse of discretion. Id. Finally, we engage in a de novo
                                                                                                      7

review of the application of law to the facts. Warren v. Warren, 2005 ME 9, ¶ 20,

866 A.2d 97.

         [¶12]    We first address Gourlaouen’s challenges to the portion of the

judgment dealing with parental rights and responsibilities, and we then consider

the parties’ challenges to the property division.

A.       Parental Rights and Responsibilities

         [¶13] Gourlaouen asserts that the referee (1) erred by failing to impose

conditions of contact between Karamanoglu and the child because of the history of

abuse, see 19-A M.R.S. § 1653(6) (2015); (2) abused his discretion by requiring

the parties to engage in joint counseling at the direction of a counselor, despite

Karamanoglu’s history of domestic abuse against Gourlaouen, see 19-A M.R.S.

§ 1653(6)(E); (3) abused his discretion by restricting the parties’ right to make

counseling decisions for their child; and (4) abused his discretion by requiring the

parties to mediate future disputes about parenting issues before initiating legal

proceedings.1 We consider these contentions in turn.

         1.      Conditions of Contact Between Karamanoglu and the Child

         [¶14] Gourlaouen first contends that the referee erred by failing to impose

safety-related statutory conditions of contact in his report pursuant to 19-A M.R.S.
     1
     Gourlaouen makes an additional argument that the referee exceeded his authority by recommending
an amendment to the protection order that the court issued against Karamanoglu, so that his rights of
contact provisions in that order would be consistent with comparable provisions of the divorce judgment.
The court has since amended the protection order, and so the issue is now moot.
8

§ 1653(6), which applies to cases involving domestic abuse.2 The judgment does

not prescribe any conditions regulating Karamanoglu’s contact with the child, and

in fact, without restrictions or conditions, the judgment provides for shared primary

physical residence and shared care of the child. The judgment does contain a

requirement that Karamanoglu engage in co-parenting counseling, but for purposes

of this analysis, we do not treat that condition as one that the referee deemed

necessary for anyone’s safety.                 With the resulting absence of any conditions

governing contact between Karamanoglu and the child, Gourlaouen contends that

the court erred by failing to comply with the statutory requirement.

          [¶15] The introductory language of section 1653(6)3 provides that when a

court establishes rights of parent-child contact in cases—such as this one—


    2
      Although Karamanoglu contends in his brief that Gourlaouen failed to preserve this issue on appeal,
the record demonstrates otherwise.
    3
        Title 19-A M.R.S. § 1653(6) (2015) provides:

          6. Conditions of parent-child contact in cases involving domestic abuse. The court
          shall establish conditions of parent-child contact in cases involving domestic abuse as
          follows.

                  A. A court may award primary residence of a minor child or parent-child contact
                  with a minor child to a parent who has committed domestic abuse only if the
                  court finds that contact between the parent and child is in the best interest of the
                  child and that adequate provision for the safety of the child and the parent who is
                  a victim of domestic abuse can be made.

                  B. In an order of parental rights and responsibilities, a court may:

                          (1) Order an exchange of a child to occur in a protected setting;

                          (2) Order contact to be supervised by another person or agency;
                                                                                                 9

involving domestic abuse, “[t]he court shall establish conditions” governing that



                    (3) Order the parent who has committed domestic abuse to attend and
                    complete to the satisfaction of the court a domestic abuse intervention
                    program or other designated counseling as a condition of the contact;

                    (4) Order either parent to abstain from possession or consumption of
                    alcohol or controlled substances, or both, during the visitation and for
                    24 hours preceding the contact;

                    (5) Order the parent who has committed domestic abuse to pay a fee to
                    defray the costs of supervised contact;

                    (6) Prohibit overnight parent-child contact; and

                    (7) Impose any other condition that is determined necessary to provide
                    for the safety of the child, the victim of domestic abuse or any other
                    family or household member.

            C. The court may require security from the parent who has committed domestic
            abuse for the return and safety of the child.

            D. The court may order the address of the child and the victim to be kept
            confidential.

            E. The court may not order a victim of domestic abuse to attend counseling with
            the parent who has committed domestic abuse.

            F. If a court allows a family or household member to supervise parent-child
            contact, the court shall establish conditions to be followed during that contact.
            Conditions include but are not limited to:

                    (1) Minimizing circumstances when the family of the parent who has
                    committed domestic abuse would be supervising visits;

                    (2) Ensuring that contact does not damage the relationship with the
                    parent with whom the child has primary physical residence;

                    (3) Ensuring the safety and well-being of the child; and

                    (4) Requiring that supervision is provided by a person who is physically
                    and mentally capable of supervising a visit and who does not have a
                    criminal history or history of abuse or neglect.

            G. Fees set forth in this subsection incurred by the parent who has committed domestic
            abuse may not be considered as a mitigating factor reducing that parent's child support
            obligation.
10

contact. (Emphasis added.) Although the first sentence of section 1653(6) appears

to be framed in mandatory terms, see 1 M.R.S. § 71(9-A) (2015) (stating that

“‘[s]hall’ . . . indicate[s] a mandatory duty”), section 1653(6)(B), which is the

specific basis for Gourlaouen’s argument, lists conditions that “a court may”

impose. (Emphasis added.) In contrast to the appearance of the word “shall,” the

Legislature’s use of the word “may” signifies that a court merely has

“authorization or permission” to impose conditions. 1 M.R.S. § 71(9-A).

      [¶16] The overlap between the introductory language of section 1653(6) and

the language of section 1653(6)(B) encompasses both a mandate and mere

permission, and creates an ambiguity that requires resolution.            “Statutory

interpretation is a matter of law” that we review de novo. Sunshine v. Brett,

2014 ME 146, ¶ 13, 106 A.3d 1123 (quotation marks omitted). When interpreting

provisions of a statute, we “examine the plain meaning of the statutory language”

and “construe the whole statutory scheme of which the section at issue forms a

part” to achieve a harmonious result, which is “presumably the intent of the

Legislature.” Hickson v. Vescom Corp., 2014 ME 27, ¶ 15, 87 A.3d 704 (quotation

marks omitted).

      [¶17] The evident purpose of section 1653(6)(B) is to create a remedial

mechanism to protect the safety of a child who has contact with an abusive parent,

and also to protect the safety of others who have some involvement in that contact.
                                                                                 11

This is clear both from the nature of the conditions authorized in sections

1653(6)(B)(1)-(6), and from the specific language found in section 1653(6)(B)(7),

which gives a court broad discretion to impose “any other condition” that it

determines is necessary to provide for the safety of the child and others.

      [¶18] Here, in his findings the referee described the evolution of the nature

of Karamanoglu’s contact with the child after the protection order was issued

against him. The contact was initially supervised at a visitation facility, and then

progressed to limited unsupervised contact and later to greater amounts of

unsupervised contact. The referee was presented with testimony from the child’s

therapist and the guardian ad litem that the child had not recently expressed being

in fear of Karamanoglu, that the child looks forward to spending time with him and

seemed comfortable with him, and that Karamanoglu is “strongly motivated to

have a good and loving relationship with his son.” From this evidence, the referee

explicitly found that Karamanoglu does not pose a threat to the child’s safety or a

risk to abscond with the child.

      [¶19] Based on these findings, which are supported by the record, the

referee was entitled to determine that there was no need to impose conditions to

protect the child.   This situation illustrates that there are instances where it

becomes unnecessary for the court to prescribe conditions and limitations on

parent-child contact in cases involving domestic abuse, because of, for example,
12

developments that have occurred since the parent engaged in abuse, rendering any

such conditions unnecessary. We therefore construe section 1653(6)(B) in a way

that does not mandate a court to impose conditions where the court is satisfied that

contact is in the child’s best interest, see 19-A M.R.S. § 1653(6)(A), and that no

such conditions are needed to protect the child.      This construction of section

1653(6)(B) gives full effect to the Legislature’s use of the word “may” while

interpreting that subsection in accordance with the legislative intent behind the

entirety of section 1653, which is to give primary consideration to the best interest

of children when addressing parental rights and responsibilities, see 19-A M.R.S.

§ 1653(1) (2015). See Hickson, 2014 ME 27, ¶ 15, 87 A.3d 704. Further, giving

substantial deference to the referee’s findings and conclusions, see Pearson v.

Wendell, 2015 ME 136, ¶ 29, 125 A.3d 1149, we conclude that the referee did not

abuse his discretion by declining to impose any such conditions here.

       2.     Co-Parenting Counseling

       [¶20] In a related argument, Gourlaouen contends that the referee erred by

failing to impose conditions on Karamanoglu’s contact with her as provided in

section 1653(6)(B) and, more specifically, that the referee erred by requiring her to

engage in co-parenting counseling and giving the counselor authority to require the

parties to participate in joint sessions.
                                                                                 13

      [¶21] Based on the referee’s recommendation, the judgment provides:

      The parents are directed to participate in co-parenting counseling with
      a provider in private practice. The provider shall work with the
      parents individually and, if she or he thinks appropriate, together.

(Emphasis added.) Pursuant to 19-A M.R.S. § 1653(6)(E), however, “[t]he court

may not order a victim of domestic abuse to attend counseling with a parent who

has committed domestic abuse.” Because Karamanoglu has committed domestic

abuse against Gourlaouen, this statutory provision foreclosed the court from

requiring Gourlaouen to participate in joint counseling sessions with him. We

therefore vacate that aspect of the court-ordered counseling requirement.

      [¶22] Beyond this, Gourlaouen argues that the referee abused his discretion

by not imposing other conditions that would apply, for example, during transfers of

the child from one parent to the other, and that would protect her from

Karamanoglu.     The referee found, however, that despite a history of abuse,

Karamanoglu did not pose a risk of harm to her, and the referee did not order any

conditions regulating Karamanoglu’s contact with her. The referee’s findings and

recommendations reveal a thoughtful appreciation of the effect that Karamanoglu’s

past conduct has had on her. Nonetheless, the evidence also supports a finding that

Karamanoglu does not pose a present threat to her and that there is not a legitimate

basis to be concerned about his future conduct. Therefore, the referee did not
14

abuse his discretion by declining to impose conditions that are authorized—but not

required—by section 1653(6)(B).

      3.      The Child’s Medical Treatment and Mental Health Counseling

      [¶23]    Based on the referee’s recommendation, the judgment delegates

authority to third parties to approve or reject the parties’ treatment decisions

affecting their child’s medical and mental health. With respect to medical issues,

the judgment provides that the child “shall not be taken to providers besides his

primary care physician or current counselor with the exception of emergency

medical providers unless such provider is recommended by the primary care

physician, regular counselor or the parties agree in writing.” (Emphasis added.)

The judgment also states that the child “shall not participate in mental health

counseling with multiple providers simultaneously without the express[]

knowledge and consent of [the child’s current counselor] and the co-parenting

provider.” (Emphasis added.) Additionally, the judgment requires the parties to

keep the child in counseling with the current counselor. Gourlaouen contends that

the referee abused his discretion by making this recommendation, which the court

adopted, because it infringes on her fundamental liberty interest to make parenting

decisions for the child.

      [¶24] It is well established “that parents have a fundamental liberty interest

to direct the care, custody, and control of their children.”       Pitts v. Moore,
                                                                                     15

2014 ME 59, ¶ 11, 90 A.3d 1169 (quotation marks omitted); see also Troxel v.

Granville, 530 U.S. 57, 65-66 (2000). As we stated in Pitts, the right to freedom

from state interference with the parent-child relationship is not absolute, but

intrusion by the state is permissible only if, on strict scrutiny, it is “narrowly

tailored to serve a compelling state interest.” 2014 ME 59, ¶ 12, 90 A.3d 1169

(quotation marks omitted). This, in turn, requires a showing that “there is some

urgent reason or there are exceptional circumstances affecting the child that justify

the intrusion.” Id. (footnote omitted). Consequently, state intervention into a

parent’s liberty rights to care for a child is justified in order to prevent harm to the

child or to ameliorate “harmful circumstances, such as a temporarily intolerable

living situation.” Id. ¶ 14 (quotation marks omitted).

      [¶25]    Here, the referee’s findings make clear that both parties are fit

parents. The referee recommended—and the court agreed—that the parties are to

share parenting responsibilities, including shared primary residence and care of the

child. As the referee concluded, although both parties “have their strengths and

limitations, it is clearly in [the child’s] interests [to] maintain a strong and

substantial connection with each.”      These affirmative findings undermine any

justification for depriving the parties of their right as parents to make decisions

regarding medical and mental health intervention for their child.
16

         [¶26] The judgment, however, does just that, because it requires the parents

to obtain approval from third parties before they can take the child to non-emergent

medical providers or to mental health providers in addition to the child’s current

counselor. Further, because the judgment requires the parties to continue the

child’s current therapy, it is the court that impermissibly interferes with the parties’

right to parent.

         [¶27] Although these parents and their child may have benefitted from the

assistance of therapists and may continue to consult with appropriate professionals

for guidance, mandating approval of experts is an intrusion into the parties’

constitutionally protected right to make joint parenting decisions, and none of the

requirements is supported by the very substantial showing necessary to justify it.

We therefore vacate those portions of the judgment that either assign

decision-making responsibilities concerning medical and mental health care to a

third party or that directly require the parties to secure particular treatment for the

child.

         4.    Mandatory Mediation

         [¶28] Gourlaouen challenges the provision of the judgment that requires the

parties to mediate disputes about parental rights and responsibilities before either

party may initiate a court proceeding on the dispute.                 As Gourlaouen

acknowledges, she failed to properly preserve this issue because she did not
                                                                                   17

present the argument during the trial court proceedings. We therefore examine this

aspect of the judgment for obvious error. See Ackerman v. Yates, 2004 ME 56,

¶ 20, 847 A.2d 418. “Obvious error is error that constitutes such a serious injustice

that reversal is necessary because we could not in good conscience let the

judgment stand.” Searles v. Fleetwood Homes of Pa., Inc., 2005 ME 94, ¶ 33,

878 A.2d 509 (quotation marks omitted).

      [¶29] The challenged provision of the judgment provides:

      In the event that a dispute arises between the parties with respect to
      any provision in this Decision, before commencing any action in
      [c]ourt, the parties shall initiate and participate in mediation
      through . . . any . . . qualified mediator selected and agreed upon by
      the parties for the purpose of resolving the dispute. The mediation fee
      and any other related expenses will be shared equally between the
      parties.

(Emphasis added.)

      [¶30]   Because this requirement subordinates the parties’ right to seek

judicial recourse to an absolute requirement that they first participate in mediation,

we must vacate this provision.

      [¶31] By imposing mediation as a condition to the commencement of a

post-judgment proceeding, the judgment materially frustrates the parties’ right of

access to the courts in three ways. First, it results in a pre-filing delay that, in

certain circumstances—such as those that could affect the best interest or safety of

a child—should not be accommodated. See Ventrice v. Ventrice, 26 N.E.3d 1128,
18

1132 (Mass. App. Ct. 2015) (vacating a provision requiring divorced parties to

engage in mediation prior to filing any subsequent court action).

         [¶32] Second, particularly in a situation such as this where the parties’

relationship had been marked by domestic abuse, a requirement of mandatory

mediation could “discourage or even prevent one of the parties from seeking to

modify the divorce judgment if a material change in circumstances or the best

interests of the parties’ . . . children so required.” Id.

         [¶33] Third, the condition is contrary to the legislative scheme governing

mediation in cases with minor children.                   By statute, after initiating court

proceedings, but before a contested hearing is held in certain types of domestic

relations cases involving minor children, the parties must proceed to mediation.

19-A M.R.S. § 251(2) (2015).4 Despite that general requirement, the Legislature

has recognized that there are instances where a party may be able to demonstrate

“extraordinary cause” to dispense with that prerequisite, and upon such a showing,

the court is authorized to waive mediation that is otherwise required. 19-A M.R.S.

§ 251(2)(B). In contrast, the judgment here does not allow for any exceptions to

mandatory pre-filing mediation, based even on circumstances that may now be

completely unforeseen and unanticipated. Nonetheless, the judgment forecloses


     4
      The Legislature recently enacted an amendment to this statute that has not yet taken effect.
See P.L. 2015, ch. 296, §§ C-6, D-1 (effective July 1, 2016) (to be codified at 19-A M.R.S. § 251(2)).
                                                                                  19

either party from demonstrating to the court any reasons—based on “extraordinary

cause” or otherwise—why it should dispense with mediation.

      [¶34] We fully recognize the salutary purposes and benefits of mediation in

cases involving minor children. See 19-A M.R.S. § 1653(1)(A) (“The Legislature

finds and declares as public policy that encouraging mediated resolutions of

disputes between parents is in the best interest of minor children.”); see generally

Levy, Maine Family Law § 5.1 at 5-1 to 5-3 (8th ed. 2013). Seen in that context,

the pre-filing mediation requirement included in the judgment represents a

well-intentioned effort to give the parties a meaningful opportunity to resolve their

parenting disputes in a cooperative and collaborative way. Pursuant to section 251,

the parties will have that opportunity if a post-judgment motion is filed. Because,

however, a requirement of pre-filing mediation could have an adverse effect on the

parties’ right to free and timely access to the courts, and because it undermines the

statutory process for a waiver of mediation, we conclude that mandatory pre-filing

mediation constitutes obvious error, and we vacate that provision of the judgment.

B.    Financial Issues and Property Division

      [¶35] Both parties argue that the referee erred as a matter of law in his

application of the parties’ French marriage contract and French law to the Primelin

property. Additionally, Gourlaouen contends that the referee erred with respect to

the Yarmouth property.
20

      1.      Primelin Property

      [¶36] The parties do not dispute that French law and the French marriage

contract control the division of property. In determining principles of foreign law,

the trial court may consider testimony on the matter. See M.R. Civ. P. 44A. At the

hearing on financial issues, the parties presented the testimony of two experts on

French matrimonial law. Both experts testified that the Primelin clause contained

in the marriage contract is unenforceable, and the parties themselves asserted the

same conclusion in their arguments to the referee. As one of the experts explained,

“[i]t is absolutely impossible to understand the intention of the parties . . . when

entering such a contract and such a clause.” The experts also testified that the

Primelin property should be divided according to the separation-of-assets regime

that governs the other portions of the parties’ marriage contract. The referee found

that under this framework, the spouse who paid the purchase price for an asset is

entitled to recover that amount, even if the value of the asset subsequently

decreased.

      [¶37]    The referee found that during the marriage Karamanoglu paid

$815,144 for Gourlaouen to acquire the Primelin property in her name. Under the

separation-of-assets regime, despite the potential conflict with the language of the

parties’ contract—which both parties agree is unenforceable—Gourlaouen is

entitled to retain ownership of the property, but Karamanoglu is entitled to recover
                                                                                                      21

the entire purchase price he paid, even though the value of the property decreased

to $500,000.

        [¶38] Based on the referee’s recommendation, the judgment provides that

the Primelin property is set aside to Gourlaouen, and Karamanoglu is credited with

$407,522, which is half of the amount he paid when Gourlaouen acquired it.

Karamanoglu argues that under the separation-of-assets regime, he was thereby not

given full credit for the proper amount. For her part, Gourlaouen argues that

Karamanoglu is entitled to half of the value of the property as of the date of the

divorce. As Gourlaouen acknowledged at oral argument, however, that contention

is predicated on the very clause of the contract that she urged the referee not to

implement because she asserted that it was unenforceable, and consequently this

argument is not persuasive.

        [¶39] By crediting Karamanoglu with only half of the price he paid for the

Primelin property, the referee failed to correctly apply French law to the parties’

marriage contract, and we must vacate that part of the judgment.5




   5
        Gourlaouen makes the further argument that the referee used an incorrect exchange rate in
calculating the amount due to Karamanoglu for his capital contribution. Although any deviation between
the rate the referee may have used ($1.2540/euro) and the amount that Gourlaouen claims was the actual
rate at the time of the purchase ($1.2683/euro) does not appear to be material, we do not reach the issue
because on remand the overall property division will be subject to the court’s reconsideration.
22

      2.      Yarmouth Property

      [¶40]    Gourlaouen asserts that the referee erred in the division of the

Yarmouth property, arguing that pursuant to French law the equity in that property

should be divided equally rather than in a way that gives a larger share to

Karamanoglu. We disagree.

      [¶41] In his analysis of the parties’ respective claims to the equity in the

Yarmouth property, the referee carefully identified their differing initial “capital

contributions” toward the down payment; the amount that was paid over time after

they purchased the property, which the referee divided equally between the parties

as equal “contributions toward ordinary expenses”; and the proportional

enhancements to their shares attributable to appreciation—the profit subsistant.

The referee’s analysis was faithful to French law as explicated by the parties’

experts, and his conclusions were not erroneous.

      3.      Scope of Proceedings on Remand

      [¶42] Because of the error in the judgment affecting the role of the Primelin

property in the overall division of the marital estate, we remand for the court to

readdress that issue.    The elements of the property division, however, are

interlocking, as is exemplified by the “equalization” payment that Karamanoglu

must pay to Gourlaouen based on the overall award of marital assets and debts.

Additionally, the determination of spousal support can be influenced by the
                                                                                  23

division of property. See 19-A M.R.S. § 951-A(5)(P)(1) (2015). Accordingly, we

vacate all aspects of the property division and the award of spousal support so that

on remand, the court may reconsider those issues to the extent they may be

affected by its reconsideration of the issues regarding the Primelin property.

See Ehret v. Ehret, 2016 ME 43, ¶ 18, --- A.3d ---.

                                III. CONCLUSION

      [¶43] In his proposed adjudication of disputed issues, the referee took a

thoughtful and commendable approach in an effort to assist the parties to enhance

their ability to serve their child as better parents. However, we must vacate the

requirements in the judgment regarding co-parenting counseling, medical and

mental health treatment of the child, and mandatory pre-filing mediation.

Additionally, because the analysis of the parties’ interests in the Primelin property

was affected by error, we vacate the provisions of the judgment affecting property

division and spousal support, and remand for reconsideration.
24

        The entry is:

                           Section II(6) of the judgment is amended to delete
                           any requirement that Gourlaouen attend counseling
                           sessions with Karamanoglu. Sections II(7) and
                           II(8) of the judgment are amended to delete the
                           requirements that the parties obtain third-party
                           approval before obtaining medical and mental
                           health treatment for the minor child, and requiring
                           the parties to obtain particular treatment for the
                           child. Section VIII is vacated.

                           Sections IV-VII of the judgment are vacated.
                           Remanded to the District Court for further
                           proceedings on those issues.



On the briefs:

        Brianne M. Martin, Esq., Powers & French, P.A., Freeport, for
        appellant Catherine Karamanoglu

        Gene R. Libby, Esq., and Paige B. Streeter, Esq., Libby
        O’Brien Kingsley & Champion, LLC, Kennebunk, for cross-
        appellant Selcuk Karamanoglu

At oral argument:

        Jonathan Davis, Esq., Powers & French, P.A., Freeport, for
        appellant Catherine Karamanoglu

        Paige B. Streeter, Esq., for cross-appellant Selcuk Karamanoglu



Portland District Court docket number FM-2014-100
FOR CLERK REFERENCE ONLU
