MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2017	ME	146	
Docket:	      Kno-16-435	
Submitted	
		on	Briefs:	 May	25,	2017	
Decided:	     July	6,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                    ERNEST	P.	NERI	
                                          	
                                         v.	
                                          	
                                   KIMBERLY	HEILIG	
	
	
JABAR,	J.	

       [¶1]	 	 Kimberly	 Heilig	 appeals	 from	 a	 judgment	 of	 the	 District	 Court	

(Rockland,	 Mathews,	 J.)	 divorcing	 her	 from	 Ernest	 P.	 Neri,	 dividing	 their	

assets,	ordering	Neri	to	pay	$2,000	toward	Heilig’s	attorney	fees,	and	ordering	

him	 to	 pay	 her	 spousal	 support	 for	 three	 years.	 	 On	 appeal,	 Heilig	 contends	

that	 the	 court	 clearly	 erred	 by	 finding	 that	 real	 estate	 purchased	 by	 Neri	

during	 the	 marriage	 is	 nonmarital	 property,	 abused	 its	 discretion	 in	

calculating	her	spousal	support	award,	and	abused	its	discretion	by	awarding	

her	a	lesser	amount	of	legal	fees	than	she	requested.		We	disagree	and	affirm.			

                                    I.		BACKGROUND	

       [¶2]	 	 The	 court	 found	 the	 following	 facts,	 which	 are	 supported	 by	

competent	evidence	in	the	record.		See	Blanchard	v.	Blanchard,	2016	ME	140,	
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¶	3,	148	A.3d	277.		Heilig	and	Neri	were	married	on	August	12,	2004.		At	the	

time	 of	 the	 marriage,	 Heilig	 was	 a	 grant	 writer	 and	 consultant	 for	 Columbia	

University,	and	Neri	was	a	retired	teacher.		Neri	received	a	monthly	pension	

and,	 in	 2008,	 began	 to	 receive	 social	 security	 payments.	 	 Each	 individually	

held	 retirement	 accounts.	 	 After	 getting	 married,	 they	 moved	 to	 Honduras,	

where	they	purchased	two	pieces	of	real	estate	and	a	tool	business.			

      [¶3]	 	 At	 some	 point,	 the	 relationship	 soured	 and	 they	 separated,	

eventually	relocating	separately	to	Maine	and	selling	the	Honduras	properties	

and	 business.	 	 Once	 in	 Maine,	 they	 partially	 reconciled.	 	 Neri	 purchased	 and	

sold	 a	 property	 on	 Oyster	 River	 Road	 in	 Warren	 (the	 “Oyster	 River	 Road”	

property),	 and	 then,	 in	 2010,	 they	 purchased	 as	 joint	 tenants	 a	 property	 on	

Crawford	 Road	 in	 Warren	 (the	 “Crawford	 Road	 property”).	 	 They	 lived	 in	

separate	quarters	at	the	Crawford	Road	property	until	2014,	when,	following	

a	complete	breakdown	of	the	relationship,	Neri	purchased	and	relocated	to	a	

multi-unit	property	in	Thomaston	(the	“Thomaston	property”).			

      [¶4]	 	 Neri	 purchased	 the	 Thomaston	 property	 in	 his	 own	 name,	 using	

money	 obtained	 from	 his	 individual	 retirement	 account	 through	 his	 State	 of	

Connecticut	 deferred	 compensation	 fund,	 and	 by	 obtaining	 a	 loan	 from	
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Camden	National	Bank.		He	paid	closing	costs	using	funds	from	his	retirement	

account	that	he	had	transferred	to	Damariscotta	Bank	&	Trust.			

        [¶5]		Neri	is	72	years	old.		Due	to	several	medical	conditions,	he	has	no	

earning	 capacity.	 	 His	 income	 is	 $74,000	 annually,	 received	 solely	 from	

retirement	and	social	security	funds.		Heilig	is	67	years	old	and	is	a	mediator.		

Her	annual	income	is	$35,800.1			

        [¶6]		Heilig	filed	for	judicial	separation	in	October	2014,	and	Neri	filed	a	

complaint	seeking	divorce	in	December	2014.		Following	a	hearing	in	January	

2015,	 the	 court	 (Worth,	 J.)	 ordered	 Neri	 to	 pay	 Heilig	 $1,000	 per	 month	 in	

interim	 spousal	 support,	 to	 be	 applied	 retroactively	 from	 October	 31,	 2014;	

$2,000	 in	 interim	 attorney	 fees;	 and	 the	 mortgage	 and	 homeowner’s	

insurance	payments	on	both	the	Crawford	Road	property	and	the	Thomaston	

property.			

        [¶7]		Mediations	in	May	and	December	2015,	and	a	judicial	settlement	

conference	 on	 April	 8,	 2016,	 failed	 to	 resolve	 all	 issues	 between	 Neri	 and	

Heilig.		On	May	4	and	5,	2016,	a	contested	divorce	hearing	was	held.		By	order	

dated	 June	 21,	 2016,	 the	 court	 (Mathews,	 J.)	 consolidated	 Heilig’s	 judicial	


   1		The	court	imputed	to	Heilig	social	security	income	of	$17,800	annually,	which	she	has	a	right	

to	 collect	 but	 has	 deferred.	 	 It	 added	 that	 figure	 to	 the	 $13,000	 annual	 income	 she	 receives	 from	
mediating.			
4	

separation	 action	 with	 the	 divorce	 action	 and	 granted	 the	 parties	 a	 divorce.		

The	 court	 divided	 their	 real	 estate,	 personal	 and	 intangible	 property,	 and	

debt;	ordered	Neri	to	pay	Heilig	spousal	support	in	the	amount	of	$1,000	per	

month	for	a	period	of	thirty-six	months;	ordered	Heilig	to	pay	Neri	$33,000	to	

equalize	the	marital	property	and	debt	distribution;	and	ordered	Neri	to	pay	

$2,000	 toward	 Heilig’s	 attorney	 fees,	 in	 addition	 to	 the	 previously	 awarded	

attorney	fees.			

        [¶8]		Heilig	filed	a	motion	for	further	findings	of	fact	and	conclusions	of	

law	pursuant	to	M.R.	Civ.	P.	52(b).2		The	court	denied	her	motion	in	part	and	

granted	 it	 in	 part:	 it	 corrected	 its	 previous	 finding	 concerning	 Neri’s	 age,	

clarified	its	reasoning	concerning	personal	property	values	and	the	division	of	

several	items	of	personal	property,	and	amended	the	thirty-six-month	spousal	

support	 term	 so	 as	 to	 be	 modifiable.	 	 See	 19-A	 M.R.S.	 §	 951-A(4)	 (2016).		

Heilig	timely	appealed	the	divorce	judgment.		See	M.R.	Civ.	P.	2(b)(3).	

                                             II.		DISCUSSION	

	       [¶9]		Heilig	raises	three	arguments	on	appeal.		First,	she	contends	that	

the	court	clearly	erred	by	finding	that	the	Thomaston	real	estate	is	nonmarital	
   2	 	 We	 note	 that	 Heilig’s	 Rule	 52(b)	 motion	 correctly	 included	 proposed	 findings	 of	 fact	 and	

conclusions	 of	 law,	 see	 Eremita	 v.	 Marchiori,	 2016	 ME	 160,	 ¶	 3,	 150	 A.3d	 336,	 but	 also	 contained	
more	than	sixty	questions	in	the	form	of	interrogatories,	which	were	inappropriately	addressed	to	
the	court.		The	court	had	no	obligation	to	answer	the	interrogatories.		See	Wandishin	v.	Wandishin,	
2009	ME	73,	¶¶	20-21,	976	A.2d	949.	
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property	and	awarding	it	to	Neri.		Next,	she	contends	that	the	court	erred	in	

calculating	her	spousal	support	award	by	awarding	the	support	for	too	short	a	

period	 of	 time	 and	 by	 failing	 to	 consider	 Neri’s	 potential	 rental	 income	 from	

the	Thomaston	property.		Finally,	she	argues	that	the	court’s	order	that	Neri	

pay	only	$2,000	toward	her	attorney	fees	was	an	abuse	of	discretion	because,	

according	 to	 Heilig,	 that	 sum	 was	 not	 reasonable	 in	 light	 of	 the	 funds	 she	

actually	expended	on	legal	costs.		We	address	each	argument	in	turn.	

A.	      Classification	of	Real	Estate	

         [¶10]		The	court’s	classification	of	property	as	marital	or	nonmarital	is	a	

question	 of	 fact,	 Spooner	 v.	 Spooner,	 2004	 ME	 69,	 ¶	 7,	 850	 A.2d	 354,	 and	 is	

reviewed	 for	 clear	 error,3	 Young	 v.	 Young,	 2015	 ME	 89,	 ¶	 13,	 120	 A.3d	 106.		

“As	long	as	there	is	competent	evidence	in	the	record	to	support	the	District	

Court’s	 characterization,	 the	 characterization	 will	 be	 affirmed.”	 	 Clum	 v.	

Graves,	1999	ME	77,	¶	9,	729	A.2d	900.	

	        [¶11]	 	 “All	 property	 acquired	 by	 either	 spouse	 subsequent	 to	 the	

marriage	and	prior	to	a	decree	of	legal	separation	is	presumed	to	be	marital	

property	 regardless	 of	 whether	 title	 is	 held	 individually,”	 unless	 a	 party	

    3	
     	 Heilig’s	 brief	 correctly	 states	 that	 equitable	 distribution	 of	 marital	 property	 and	 debt	 is	
reviewed	 for	 an	 abuse	 of	 discretion,	 see	 Thumith	 v.	 Thumith,	 2013	 ME	 67,	 ¶	 8,	 70	 A.3d	 1232,	 but	
because	the	issue	raised	is	whether	or	not	the	court	properly	classified	real	estate	as	nonmarital,	we	
review	for	clear	error,	see	Murphy	v.	Murphy,	2003	ME	17,	¶	20,	816	A.2d	814.	
6	

demonstrates	that	it	was	“acquired	in	exchange	for	property	acquired	prior	to	

the	 marriage,”	 or	 for	 another	 statutory	 reason.	 	 19-A	 M.R.S.	 §	 953(2),	 (3)	

(2016).	

	     [¶12]	 	 Here,	 although	 the	 Thomaston	 property	 was	 purchased	 during	

the	 marriage,	 the	 court	 found	 that	 it	 was	 nonmarital	 property	 belonging	 to	

Neri	alone.		Specifically,	the	court	found,	based	on	competent	evidence	in	the	

record,	see	Efstathiou	v.	Aspinquid,	Inc.,	2008	ME	145,	¶	35,	956	A.2d	110,	that	

Neri	 obtained	 the	 funds	 to	 purchase	 the	 Thomaston	 property	 from	 his	

nonmarital	Connecticut	retirement	deferred	compensation	fund.		Neri	closed	

on	 the	 property	 using	 those	 funds	 and	 a	 loan	 secured	 in	 his	 own	 name,	 and	

made	payments	on	all	loans	using	his	personal	nonmarital	retirement	funds.		

Even	where	real	estate	is	secured	by	a	mortgage	toward	which	payments	are	

made	during	the	marriage,	the	presumption	that	the	property	is	marital	may	

be	 overcome	 by	 a	 showing	 that	 the	 mortgage	 payments,	 as	 here,	 were	 made	

with	nonmarital	funds.		 See	 Noyes	v.	Noyes,	617	A.2d	1036,	1038	(Me.	1992);	

see	also	Coppola	v.	Coppola,	2007	ME	147,	¶	19,	938	A.2d	786.		Heilig	admitted	

that	 she	 did	 not	 make	 a	 monetary	 contribution	 toward	 the	 purchase,	

construction,	 or	 maintenance	 costs	 of	 the	 Thomaston	 property.	 	 The	 court	

reasoned,	 and	 we	 agree,	 that	 based	 upon	 these	 facts,	 Neri	 overcame	 the	
                                                                                         7	

presumption	of	marital	property	by	establishing	that	the	Thomaston	property	

was	purchased	with	and	supported	by	nonmarital	funds.				

B.	   Spousal	Support	Award	

      [¶13]	 	 In	 determining	 a	 spousal	 support	 award,	 a	 court	 must	 consider	

certain	 statutory	 factors.	 	 19-A	 M.R.S.	 §	 951-A(2),	 (5)	 (2016).	 	 These	 factors	

include,	inter	alia,	the	length	of	the	marriage,	each	party’s	ability	to	pay,	each	

party’s	 age,	 their	 employment	 histories,	 the	 health	 and	 disabilities	 of	 each	

party,	 their	 contributions	 to	 the	 home,	 and	 “[a]ny	 other	 factors	 the	 court	

considers	appropriate.”		Id.	§	951-A(5).		The	court	“may	rely	on	some	factors	

to	the	exclusion	of	others.”		Jandreau	v.	LaChance,	2015	ME	66,	¶	16,	116	A.3d	

1273.			

	     [¶14]	 	 The	 court	 here	 ordered	 Neri	 to	 pay	 Heilig	 $1,000	 per	 month	 in	

spousal	 support	 for	 a	 period	 of	 thirty-six	 months	 and	 reached	 its	 decision	

based	on	findings	supported	by	competent	evidence	in	the	record.		See	Ehret	v.	

Ehret,	2016	ME	43,	¶	14,	135	A.3d	101	(“In	applying	the	clear	error	standard,	

we	will	vacate	a	factual	finding	if	it	is	not	supported	by	sufficient,	competent	

record	evidence.”).		The	court	found	that	Neri	has	an	income	of	$74,000	from	

retirement	 funds	 and	 social	 security	 payments.	 	 It	 found	 that	 Heilig	 has	 an	

income	 of	 $13,000	 from	 mediation	 and	 imputed	 $17,800	 to	 her	 for	 social	
8	

security	payments	for	which	she	is	eligible	but	has	yet	to	opt	to	receive.		The	

court	further	found	that	Neri	is	unemployable	due	to	health	issues,	but	Heilig	

could	 increase	 her	 income	 by	 taking	 on	 additional	 mediations.	 	 As	 Heilig	

acknowledges,	 the	 court’s	 findings	 address	 many	 of	 the	 factors	 listed	 in	

section	951-A(5),	including	the	length	of	the	marriage,	the	parties’	income	and	

income	 potential,	 their	 employment	 history	 and	 education,	 their	 health	 and	

disabilities,	and	their	standard	of	living	during	the	marriage.		See	19-A	M.R.S.	

§	951-A(5);	 Miele	 v.	 Miele,	 2003	 ME	 113,	 ¶	 11,	 832	 A.2d	 760	 (stating	 that	 “a	

court	is	not	required	to	detail	the	rationale	it	uses	to	reach	each	finding	of	fact	

or	conclusion	of	law”).	

	     [¶15]	 	 Although	 Heilig	 testified	 that,	 if	 she	 were	 to	 have	 a	 monetary	

“shortfall,”	 she	 would	 need	 to	 sell	 some	 acreage	 of	 the	 Oyster	 River	 Road	

property	in	order	to	make	ends	meet,	and	that	she	is	“always	looking	for	work	

above	and	beyond”	her	current	employment,	we	will	not	overturn	the	court’s	

discretionary	 judgment	 based	 upon	 uncertain	 future	 events.	 	 See	 Warner	 v.	

Warner,	 2002	 ME	 156,	 ¶	 48,	 807	 A.2d	 607	 (“[S]pousal	 support	 awards	 may	

not	be	based	on	speculative	predictions	of	future	economic	circumstances.”).		

For	 the	 same	 reason,	 we	 conclude	 that	 the	 trial	 court	 was	 correct	 not	 to	

speculate	 on	 Neri’s	 potential	 income	 from	 renting	 the	 two	 other	 apartments	
                                                                                         9	

on	the	Thomaston	property,	despite	testimony	about	the	market	value	of	the	

rentals—only	one	of	which	has	been	certified	for	occupancy.		See	Ryan	v.	Ryan,	

1997	 ME	 136,	 ¶	 8,	 697	A.2d	 60	 (stating	 that	 under	 unpredictable	 future	

economic	 circumstances,	 “[a]	 more	 appropriate	 approach	 would	 be	 to	 leave	

the	.	.	.	alimony	award	in	place	.	.	.	thus	preserving	the	ability	of	either	party	to	

reopen	the	relevant	economic	issues	at	a	more	propitious	time”).	

C.	   Attorney	Fees	

      [¶16]		“Divorce	courts	may	order	a	party	to	pay	another	party’s	attorney	

fees	based	on	the	parties’	relative	financial	ability	to	pay	the	costs	of	litigation	

as	long	as	the	award	is	ultimately	fair	under	the	totality	of	the	circumstances.”		

Urquhart	 v.	 Urquhart,	 2004	 ME	 103,	 ¶	 6,	 854	 A.2d	 193;	 see	 also	 19-A	 M.R.S.	

§	105(1)	 (2016).	 	 The	 court	 may	 consider	 “all	 relevant	 factors	 that	 serve	 to	

create	an	award	that	is	fair	and	just.”		Clum,	1999	ME	77,	¶	17,	729	A.2d	900	

(quotation	 marks	 omitted).	 	 The	 court	 must	 “provide	 a	 concise	 but	 clear	

explanation	 of	 its	 reasons	 for	 grant	 or	 denial	 of	 the	 fee	 award.”	 	 Hebert	 v.	

Hebert,	 475	 A.2d	 422,	 427	 n.5	 (Me.	 1984).	 	 Here,	 the	 court	 found	 that	 Neri	

“possesses	 superior	 financial	 assets	 and	 ability	 to	 pay	 and	 contribute	 to	 fees	

and	 costs,”	 and	 therefore	 ordered	 him	 to	 contribute	 $2,000	 towards	 Heilig’s	

attorney	 fees	 and	 costs.	 	 Although	 Heilig	 had	 requested	 $4,000,	 it	 was	 not	
10	

unreasonable	for	the	court	to	award	$2,000	in	attorney	fees,	and	we	conclude	

that	there	was	no	abuse	of	discretion	in	the	court’s	order.	

         The	entry	is:	

                            Judgment	affirmed.		
	
	     	     	     	      	      	
	
Kelley	E.	Mellenthin,	Esq.,	Lincolnville	Center,	for	appellant	Kimberly	Heilig	
	
Steven	C.	Peterson,	Esq.,	West	Rockport,	for	appellee	Ernest	P.	Neri	
	
	
Rockland	District	Court	docket	number	FM-2014-259	
FOR	CLERK	REFERENCE	ONLY	
