MAINE SUPREME JUDICIAL COURT                                        Reporter of Decisions
Decision:   2013 ME 70
Docket:     Cum-13-21
Submitted
 On Briefs: July 17, 2013
Decided:    July 30, 2013

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


                                RONALD R. BERTIN

                                          v.

                                 SUSAN L. BERTIN

SAUFLEY, C.J.

         [¶1] Susan L. Bertin appeals from a default judgment entered in the District

Court (Portland, Eggert, J.) terminating her right to receive spousal support from

Ronald R. Bertin. She argues that the court erred in entering a default judgment

when she appeared at the first scheduled hearing in answer to Ronald’s

post-divorce motion to terminate spousal support. Because we agree with Susan

that Maine Rule of Civil Procedure 105(a) required the court to consider spousal

support issues despite her lack of written response to Ronald’s motion, we vacate

the judgment and remand for additional proceedings.

                                 I. BACKGROUND

         [¶2] The parties were married in 1988, and Ronald filed for divorce in 2010.

After a contested divorce hearing, the court (Mulhern, J.) entered a divorce
2

judgment in June 2011, finding that Susan’s annual income was $25,000 and that

Ronald’s annual income was $120,000. The court awarded Susan $1,200 per

month ($14,400 per year) in general spousal support for fifteen years. See 19-A

M.R.S. § 951-A(1), (2)(A) (2012). The judgment provided, “[Ronald]’s obligation

to provide general spousal support shall terminate following the earlier of either

[Ronald]’s one hundred eighty (180) consecutive payment, co-habitation by

[Susan] with another adult tantamount to marriage for a period in excess of six (6)

months; [Susan]’s remarriage or the death of either party.” (Emphasis added.)

      [¶3] On November 6, 2012, less than eighteen months after entry of the

divorce judgment, Ronald moved to terminate spousal support payments, asserting

that Susan’s boyfriend had been living with her at the marital residence in a

manner “tantamount to marriage” for more than a year. The court immediately

scheduled and provided both parties with notice of a hearing on the motion to be

held on December 12, 2012.

      [¶4] Susan did not file a response or opposition to the motion, but she did

appear with counsel at the December 12 hearing. Although no transcript was

requested or produced in connection with this appeal, the court’s resulting

judgment states that Ronald “moved for the entry of a default judgment” against

Susan at the December 12 hearing. The court granted that motion and entered a

default judgment on the ground that Susan had failed “to file an Objection to
                                                                                 3

[Ronald]’s Motion as required by Maine Rules of Civil Procedure 7(c).” The

court’s default judgment terminated spousal support effective June 1, 2012. This

judgment effected a “complete termination of a spousal support award pursuant to

the terms of . . . a final post-judgment order,” and would “forever preclude[] the

reinstatement of spousal support.” 19-A M.R.S. § 951-A(9) (2012).

      [¶5] Susan timely appealed from the judgment. See 14 M.R.S. § 1901(1)

(2012); 19-A M.R.S. § 104 (2012); M.R. App. P. 2(b)(3).

                                II. DISCUSSION

      [¶6] Although we review a court’s decision to enter a default judgment for

an abuse of discretion, Sheepscot Land Corp. v. Gregory, 383 A.2d 16, 23 (Me.

1978), we must first determine whether the court had the authority to enter a

default judgment given Susan’s appearance at the hearing.          We review an

interpretation of the Rules of Civil Procedure de novo and “look to the plain

language of the rules to determine their meaning.” Town of Poland v. T & M

Mortg. Solutions, Inc., 2010 ME 2, ¶ 6, 987 A.2d 524.

      [¶7]   In a proceeding on a post-judgment motion filed in a divorce

proceeding, the family division rules apply. See M.R. Civ. P. 100 (“The rules in

this chapter shall govern procedure in the District Court . . . in all actions for

divorce . . . and any post-judgment motions arising from th[is] action[].”).

Relevant here, Rule 105(a) provides that “a party served with a . . . post-judgment
4

motion shall file an appearance and answer within 20 days after service unless the

court directs otherwise.” The rule further provides, however, that a party who does

not file a response “may enter an appearance before commencement of a hearing

and be heard on issues of . . . spousal support.” Id. The 2008 Advisory Notes

provide that “a party who does not file an answer or response may still be heard on

most issues, upon entering an appearance before commencement of a hearing.”

M.R. Civ. P. 105 Advisory Notes to 2008 amend.

        [¶8] The judgment entered by the trial court does not refer to or address

Rule 105. Rather, the judgment indicates that the court entered a default judgment

for failure to comply with the rules of pleading that are generally applicable in civil

cases. See M.R. Civ. P. 7(c) (stating the process for opposing motions). Because

this is a family matter to which the family division rules apply, it was necessary for

the court to follow the family-process-specific dictates of Rule 105. Thus, the

court erred as a matter of law in applying Rule 7 and not Rule 105, and in failing to

allow Susan to be heard on the substance of Ronald’s motion.1

        [¶9] Accordingly, we vacate the judgment entered by the District Court and

remand the matter for further proceedings on the motion for termination of spousal

support.

    1
     To the extent that any failure to object on the part of a responding party in a family matter causes the
moving party to incur costs, the court does have the discretion to require the responding party to cover
those costs. See Wooldridge v. Wooldridge, 2008 ME 11, ¶¶ 11-12, 940 A.2d 1082.
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        The entry is:

                           Judgment vacated.        Remanded for       further
                           proceedings consistent with this opinion.

_____________________________

On the briefs:

        John H. Branson, Esq., Branson Law Office, P.A., Portland, for
        appellant Susan L. Bertin

        David S. Abramson, Esq., and Benjamin E. Ford, Esq., Verrill
        Dana, LLP, Portland, for appellee Ronald R. Bertin



Portland District Court docket number FM-2010-405
FOR CLERK REFERENCE ONLY
