MAINE	SUPREME	JUDICIAL	COURT	                                                           Reporter	of	Decisions	
Decision:	 2017	ME	70	
Docket:	   Cum-16-375	
Argued:	   March	2,	2017	 	
Decided:	  April	18,	2017	
	
Panel:	    MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.*	
	
	
                                      JOYCE	E.	MITCHELL	
                                                	
                                               v.	
                                                	
                                   ALEXANDER	S.	KRIECKHAUS	
	
	
MEAD,	J.	

        [¶1]		Joyce	E.	Mitchell	appeals	from	the	denial	of	her	motions	for	findings	

of	 fact	 and	 conclusions	 of	 law,	 deviation	 from	 child	 support	 guidelines,	 and	

reconsideration,	all	of	which	addressed	the	divorce	judgment	entered	by	the	

District	 Court	 (Portland,	 J.	 French,	 J.)	 on	 June	 15,	 2016.	 	 Mitchell	 argues,	

inter	alia,	that	before	the	court	issued	a	child	support	order	it	was	required	to	

hold	 an	 evidentiary	 hearing	 on	 the	 issue	 of	 whether	 the	 parties	 provided	

substantially	equal	care	of	their	son.		We	agree,	vacate	the	judgment	of	divorce	

insofar	as	it	establishes	a	child	support	obligation	to	be	paid	by	Mitchell,	and	

remand	for	an	evidentiary	hearing	on	that	issue.	


    *
   	 	 Chief	 Justice	 Saufley	 sat	 at	 oral	 argument	 and	 participated	 in	 the	 Court’s	 initial	 conference	
regarding	this	opinion	immediately	following	the	oral	argument	but	did	not	participate	further	in	the	
development	of	this	opinion.	
2	

                                        I.		FACTS	

      [¶2]	 	 Joyce	 E.	 Mitchell	 and	 Alexander	 S.	 Krieckhaus	 were	 married	 on	

October	5,	1997;	Mitchell	filed	a	complaint	for	divorce	seventeen	years	later,	on	

October	 7,	 2014.	 	 The	 parties	 undertook	 discovery	 and	 engaged	 in	 case	

management	conferences,	mediation,	and	settlement	conferences.		Ultimately,	

on	May	10,	2016,	after	a	day-long,	judicially-assisted	settlement	conference,	the	

parties	reached	a	settlement	agreement	and	agreed	in	writing	to	waive	their	

right	 to	 appeal	 from	 the	 judgment	 that	 would	 result	 from	 it.		

See	M.R.	Civ.	P.	118(c).		A	stipulated	order	on	children’s	issues	was	signed	by	

the	court	on	that	date.	

	     [¶3]		The	stipulated	order	called	for	child	support	to	“be	paid	pursuant	to	

the	 Maine	 Child	 Support	 Guidelines	 based	 on	 [Mitchell’s]	 base	 income	 of	

$344,000	and	[Krieckhaus’s]	anticipated	income	of	$56,000.”		Pursuant	to	the	

order,	the	parties	were	to	share	parental	rights	and	responsibilities.		They	were	

also	 to	 share	 primary	 residence	 of	 their	 son,	 with	 Mitchell	 having	 primary	

residence	 of	 their	 two	 daughters.	 	 Concerning	 their	 son,	 the	 order	 set	 out	 in	

considerable	 detail	 the	 contact	 arrangements	 based	 on	 his	 school-year	

schedule,	 vacations,	 holidays,	 child	 care,	 and	 extra-curricular	 activities.	 	 The	

parents	were	to	have	equal	access	to	records	regarding	the	children	and	were	
                                                                                                           3	

to	 keep	 each	 other	 fully	 informed	 of	 the	 children’s	 appointments	 and	 school	

matters.	

	       [¶4]		Prior	to	signing	the	stipulated	order	on	children’s	issues,	the	court	

conducted	a	hearing	in	open	court	with	the	parties	and	their	counsel,	during	

which	Mitchell’s	attorney	stated,	“[T]he	order	calls	for	a	child	support	order,	

which	isn’t	there	yet.		And	so	obviously,	that	would	have	to	be	subject	to	review	

and	approval.”		The	court	responded,		

     One	of	the	things	that—and	I’m	sorry	that	I	didn’t	share	this	with	
     all	the	parties—that	was	asked	of	me	when	I	was	meeting	with	the	
     defendant	and	his	counsel	.	.	.	is	whether	the	Court	would	draft	the	
     child	support	order,	based	upon—and	the	worksheet—based	upon	
     the	numbers.[1]		So	I’ll	do	that	and	provide	it	to	the	parties.		So	I’ll	
     take	on	that	and	make	sure	that	they’ve	had	a	chance	to	review	it.		
     Is	that	acceptable?	
     	
Mitchell’s	attorney	confirmed	that	the	proposed	procedure	was	acceptable.	

	       [¶5]		The	court	requested	that	Krieckhaus’s	counsel	submit	a	stipulated	

divorce	judgment	by	May	23,	2016.		The	child	support	worksheets	annexed	to	

Krieckhaus’s	proposed	judgment	included	a	supplemental	worksheet	that	was	

predicated	upon	a	presumption	that	the	parties	provided	substantially	equal	


    1
    		The	record	does	not	disclose	whether	the	private	conversation	among	the	judge,	Krieckhaus,	
and	 Krieckhaus’s	 attorney	 (which	 presumably	 occurred	 during	 the	 judicially-assisted	 settlement	
process)	 regarding	 the	 preparation	 of	 child	 support	 worksheets	 included	 discussion	 of	 the	 use	 of	
basic	or	supplemental	worksheets.		A	supplemental	worksheet	would	be	applicable	if	the	court	were	
determining	 child	 support	 for	 parties	 who	 have	 unequal	 incomes	 but	 who	 provide	 “substantially	
equal	care”	for	the	child.		See	19-A	M.R.S.	§	2006(5)(D-1)	(2016).	
4	

care	for	their	son.		The	proposed	order	called	for	Mitchell	to	pay	Krieckhaus	a	

total	 of	 $249.58	 biweekly	 while	 three	 children	 were	 entitled	 to	 parental	

support,	 $440.22	 biweekly	 while	 two	 children	 were	 entitled	 to	 support,	 and	

$788.42	biweekly	once	only	their	son	was	entitled	to	support.	

	      [¶6]		On	June	7,	2016,	through	counsel,	Mitchell	responded	by	sending	a	

letter	 to	 the	 court	 advising	 that	 the	 parties	 did	 not	 agree	 that	 they	 provided	

substantially	 equal	 care	 for	 their	 son	 even	 if	 they	 shared	 primary	 residence.		

The	letter	included	draft	child	support	worksheets	that	called	for	Krieckhaus	to	

pay	Mitchell	a	total	of	$296.24	biweekly	while	three	children	were	entitled	to	

support,	 $248.92	 biweekly	 when	 two	 children	 were	 entitled	 to	 support,	 and	

$165.48	biweekly	when	one	child	was	entitled	to	support.	

	      [¶7]		The	court	entered	a	divorce	judgment	on	June	15,	2016,	in	which	it	

based	 the	 amount	 of	 child	 support	 upon	 the	 parties	 providing	 substantially	

equal	care	for	their	son,	consistent	with	Krieckhaus’s	child	support	worksheets.		

In	a	footnote	to	the	child	support	provision,	the	court	explained:	

       At	 the	 final	 hearing	 the	 Court	 indicated	 it	 would	 draft	 the	 child	
       support	documents.		Since	that	time,	a	dispute	has	arisen	between	
       the	parties	as	to	whether	or	not	they	will	be	providing	substantially	
       equal	care	of	their	son	.	.	.	and	consequently	whether	or	not	child	
       support	 for	 him	 should	 be	 calculated	 using	 the	 “supplemental”	
       child	support	worksheet.		The	Court	has	concluded,	a)	based	upon	
       the	totality	of	the	evidence	presented	at	the	final	hearing	as	to	the	
       parties’	agreement;	b)	after	review	of	the	stipulation;	c)	finding	that	
                                                                                          5	

       the	 parties	 agreed	 to	 an	 award	 of	 shared	 parental	 rights	 and	
       responsibilities	and	a	shared	residential	schedule;	and,	d)	the	lack	
       of	 evidence	 that	 one	 of	 the	 parties	 would	 be	 providing	 primary	
       residential	care	of	[their	son]	for	the	purpose	of	calculating	child	
       support,	 that	 child	 support	 will	 be	 determined	 using	 the	
       supplemental	child	support	worksheet.	
       	
       [¶8]	 	 On	 June	 27,	 Mitchell	 filed	 a	 motion	 for	 findings	 of	 fact	 and	

conclusions	of	law;	on	June	30,	she	filed	motions	for	reconsideration	of	the	child	

support	order	and	for	a	deviation	from	the	child	support	guidelines.		Mitchell	

argued	 that	 the	 parties	 never	 agreed	 that	 they	 were	 providing	 substantially	

equal	care	for	their	son;	that	the	court	could	not	find	that	they	were	providing	

substantially	 equal	 care	 without	 holding	 an	 evidentiary	 hearing;	 that	 the	

parties	did	not,	in	fact,	provide	substantially	equal	care;	and	that	even	if	they	

did	 provide	 substantially	 equal	 care,	 a	 deviation	 from	 that	 provision	 in	 the	

guidelines	was	warranted.	

	      [¶9]		After	receiving	memoranda	from	Krieckhaus,	and	without	holding	a	

hearing,	 the	 court	 issued	 an	 order	 on	 July	 27,	 2016,	 denying	 all	 of	 Mitchell’s	

motions.	 	 The	 court	 reasoned	 that	 the	 motion	 for	 findings	 of	 fact	 and	

conclusions	of	law	was	untimely	and	exceeded	the	scope	of	relief	afforded	by	

M.R.	Civ.	P.	52.		With	respect	to	the	motion	for	reconsideration,	the	court	stated	

that	it	had,	“in	issuing	the	Divorce	Judgment	construed	the	Stipulated	Order	and	

found	as	a	matter	of	law	that	the	parties	agreed	to	a	‘substantially	equal	care’	
6	

arrangement	 with	 respect	 to	 [their	 son]	 .	 .	 .	 requir[ing]	 the	 use	 of	 the	

supplemental	 child	 support	 worksheet.”	 	 (Emphasis	 added.)	 	 It	 denied	

Mitchell’s	motion	for	a	deviation	from	the	guidelines	as	being	inconsistent	with	

the	 parties’	 agreement	 that	 child	 support	 be	 awarded	 pursuant	 to	 the	

guidelines.	 	 The	 court	 confirmed	 the	 divorce	 judgment’s	 provision	 ordering	

Mitchell	to	pay	$25,000	of	Krieckhaus’s	attorney	fees,	but	denied	Krieckhaus’s	

request	 to	 award	 him	 additional	 attorney	 fees.	 	 Mitchell	 timely	 appealed.		

See	19-A	M.R.S.	§	104	(2016).	

                                   II.		DISCUSSION	

A.	   Availability	of	Appellate	Review	

      [¶10]		Krieckhaus	argues	that	Mitchell	cannot	appeal	the	judgment	after	

reviewing	 and	 signing	 the	 stipulated	 order	 on	 children’s	 issues	 with	 counsel	

present	and	then	waiving	her	right	to	appeal.		He	asserts	that	she	should	have	

been	 aware	 that	 the	 child	 support	 guidelines	 include	 a	 provision	 for	 parents	

who	 provide	 substantially	 equal	 care.	 	 Mitchell	 contends	 that	 she	 expressly	

preserved	the	right	to	object	to	the	final	application	of	the	guidelines	when	she	

told	the	court	at	the	hearing	that	the	child	support	order	“isn’t	there	yet”	and	

“would	 have	 to	 be	 subject	 to	 review	 and	 approval”;	 that	 she	 did	 object	 to	

Krieckhaus’s	assertion	that	the	parties	would	be	providing	substantially	equal	
                                                                                        7	

care	for	their	son	as	soon	as	that	issue	was	raised;	and	that	her	appeal	should	

be	 heard	 to	 prevent	 injustice	 because	 there	 was	 no	 indication	 until	 after	 the	

hearing	 that	 Krieckhaus	 would	 seek	 child	 support	 under	 the	 “substantially	

equal	care”	provision	of	the	statute,	19-A	M.R.S.	§	2006(5)(D-1)	(2016).	

	     [¶11]		Parties	to	a	family	matter	“may	.	.	.	waive	their	rights	to	appeal.”		

M.R.	Civ.	P.	118(c).		We	have	not	yet	squarely	decided	whether	M.R.	Civ.	P.	118	

allows	 a	 party	 to	 appeal	 from	 a	 court’s	 determination	 that	 is	 made	 after	 the	

parties	reach	a	stipulated	agreement	that	includes	a	waiver	of	appeal.		We	have	

said,	however,	that	“[w]hen	parties	report	to	the	court	that	they	have	reached	

a	settlement	and	have	memorialized	the	terms	of	the	agreement	and	expressed	

clear	 consent	 to	 those	 terms,	 that	 settlement	 becomes	 an	 enforceable	

agreement	and,	upon	acceptance	by	the	court,	is	incorporated	as	a	judgment	of	

the	court.”		2301	Cong.	Realty,	LLC	v.	Wise	Bus.	Forms,	Inc.,	2014	ME	147,	¶	10,	

106	A.3d	1131	(emphasis	added)	(quotation	marks	omitted).	

	     [¶12]		If	the	terms	of	a	settlement	agreement	are	“discussed	at	length	on	

the	record,	and	at	that	time	all	parties	agree[]	to	the	settlement,”	a	court	may	

ordinarily	enter	a	judgment	based	on	those	terms	even	if	a	dispute	arises	after	

the	 agreement	 is	 reached	 but	 before	 the	 entry	 of	 judgment.	 	 Page	 v.	 Page,	

671	A.2d	956,	957-58	(Me.	1996).		We	have,	however,	“allowed	an	exception	to	
8	

this	rule	in	those	cases	when	a	party	challenges	the	sufficiency	of	the	agreement	

placed	on	the	record,”	for	instance	“when	a	party	alleges	that	his	attorney	acted	

without	 authority	 in	 entering	 into	 the	 agreement.”	 	 Id.	 at	 958;	 see	 Lane	 v.	

Me.	 Cent.	 R.R.,	 572	 A.2d	 1084,	 1085	 (Me.	 1990).	 	 Absent	 such	 a	 problem,	

“a	stipulation	of	record	that	sufficiently	covers	the	settlement	agreement	can	

be	summarily	enforced	by	the	entry	of	a	judgment”	even	if	a	party	withdraws	

consent.		Page,	671	A.2d	at	958.	

	     [¶13]	 	 Here,	 unlike	 in	 Page,	 the	 record	 demonstrates	 a	 clear	 lack	 of	

agreement	 about	 how	 the	 child	 support	 guidelines	 would	 be	 applied;	

accordingly,	 the	 settlement	 agreement	 was	 insufficient	 to	 allow	 the	 court	 to	

enter	judgment	on	that	issue	in	the	face	of	Mitchell’s	later	objection.		Mitchell	

expressly	advised	the	court	that	the	child	support	order	would	be	subject	to	

“review	 and	 approval”	 by	 the	 parties	 after	 the	 court	 completed	 its	

computations,	and	the	court	both	acknowledged	the	necessity	of	their	review	

prior	to	the	entry	of	a	divorce	judgment	and	confirmed	that	its	child	support	

worksheet	 and	 proposed	 order	 would	 be	 made	 available	 to	 the	 parties	 for	

review.	

	     [¶14]		The	procedural	posture	of	this	matter,	once	it	became	clear	that	

the	parties	did	not	agree	about	the	application	of	the	child	support	guidelines,	
                                                                                       9	

is	analogous	to	a	partially	resolved	family	matter	or	a	matter	in	which	the	court	

does	not	approve	part	of	a	settlement	agreement.		In	either	of	those	events,	the	

court	 must	 provide	 the	 opportunity	 for	 a	 hearing	 on	 disputed	 issues.		

See	Lowd	v.	Dimoulas,	2005	ME	19,	¶¶	5-6,	866	A.2d	867;	see	also	Yoder	v.	Yoder,	

2007	ME	27,	¶	10,	916	A.2d	228.	

      [¶15]	 	 The	 waiver	 of	 appeal,	 executed	 on	 the	 same	 day	 that	 Mitchell	

reserved	her	right	to	review	the	final	child	support	order,	cannot	therefore	be	

deemed	 to	 have	 encompassed	 the	 very	 issue	 specifically	 held	 open	 for	 later	

determination.	 	 As	 to	 the	 terms	 of	 the	 stipulated	 order	 on	 children’s	 issues	

where	 no	 reservation	 of	 rights	 was	 articulated,	 no	 appeal	 may	 be	 taken.		

However,	as	to	the	issue	of	the	child	support	computation,	which	was	expressly	

reserved	for	later	review	and	ultimately	decided	on	a	contested	basis	by	the	

court,	the	waiver	of	appeal	presents	no	obstacle	to	appellate	review.	

B.	   Necessity	of	Evidentiary	Hearing	

	     [¶16]	 	 Mitchell	 argues	 that	 the	 parties	 never	 agreed	 that	 they	 were	

providing	 “substantially	 equal	 care,”	 19-A	 M.R.S.	 §	 2006(5)(D-1),	 and	 that,	

given	the	parties’	dispute,	such	a	factual	determination	can	be	made	only	after	

an	evidentiary	hearing.		Krieckhaus	contends	that	the	terms	of	the	agreement	

established	 that	 the	 parties	 provide	 substantially	 equal	 care	 for	 their	 son.		
10	

“We	 review	 de	 novo	 whether	 an	 individual	 was	 afforded	 procedural	 due	

process.	.	.	.	The	fundamental	requirement	of	due	process	is	the	opportunity	to	

be	 heard	 at	 a	 meaningful	 time	 and	 in	 a	 meaningful	 manner.”	 	 In	 re	 Adden	 B.,	

2016	ME	113,	¶	7,	144	A.3d	1158	(quotation	marks	omitted).	

	      [¶17]		The	determination	of	whether	parents	provide	substantially	equal	

care	for	a	child	is	grounded	in	findings	of	fact.		See	Jabar	v.	Jabar,	2006	ME	74,	

¶	17,	899	A.2d	796.		The	party	contending	that	he	provides	substantially	equal	

care	bears	the	burden	of	proof	on	that	issue.		Pratt	v.	Sidney,	2009	ME	28,	¶	10,	

967	A.2d	685.		Thus,	absent	an	agreement	by	the	parties,	the	court	is	placed	in	

the	 position	 of	 a	 fact-finder	 on	 a	 disputed	 issue.	 	 See	 id.	 ¶	 12	 (holding	 that	 a	

fact-finder	must	determine	whether	parents	are	providing	substantially	equal	

care).	

	      [¶18]	 	 Ordinarily,	 a	 parent’s	 child	 support	 obligation	 is	 determined	 by	

applying	 19-A	 M.R.S.	 §	 2006(4)	 (2016),	 using	 the	 Schedule	 of	 Basic	 Child	

Support	Obligation	table,	see	19-A	M.R.S.	§§	2001(3),	2006(1),	2011	(2016).		In	

the	“special	circumstance[]”	in	which	the	parties	provide	“substantially	equal	

care,”	however,	the	calculation	is	different:	

       When	 the	 parties	 do	 not	 have	 equal	 annual	 gross	 incomes	 but	
       provide	substantially	equal	care	for	each	child	for	whom	support	is	
       being	 determined,	 the	 presumptive	 parental	 support	 obligation	
       must	be	determined	as	follows.	
                                                                                      11	

             (1)	The	enhanced	support	entitlement	for	each	child	must	be	
             determined.	

             (2)	 Using	 the	 enhanced	 support	 entitlement,	 a	 parental	
             support	 obligation	 for	 each	 child	 must	 be	 determined	 by	
             dividing	the	total	enhanced	support	obligation	between	the	
             parties	in	proportion	to	their	respective	gross	incomes.	

             (3)	 The	 party	 with	 the	 higher	 annual	 gross	 income	 has	 a	
             presumptive	obligation	to	pay	the	other	party	the	lower	of:	

                    (a)	 The	 difference	 between	 their	 parental	 support	
                    obligations	as	calculated	in	subparagraph	(2);	and	

                    (b)	 The	 presumptive	 parental	 support	 obligation	
                    determined	for	the	payor	party	using	the	basic	support	
                    entitlement	 under	 the	 support	 guidelines	 as	 though	
                    the	 other	 party	 provided	 primary	 residential	 care	 of	
                    the	child.	

             (4)	 The	 parties	 shall	 share	 the	 child	 care	 costs,	 health	
             insurance	 premiums	 and	 uninsured	 medical	 expenses	 in	
             proportion	to	their	incomes.	

19-A	M.R.S.	§	2006(5)(D-1).		“‘Substantially	equal	care’	means	that	both	parents	

participate	substantially	equally	in	the	child’s	total	care,	which	may	include,	but	

is	not	limited	to,	the	child’s	residential,	educational,	recreational,	child	care	and	

medical,	dental	and	mental	health	care	needs.”		19-A	M.R.S.	§	2001(8-A)	(2016).	

	     [¶19]		Because	a	finding	of	“substantially	equal	care”	is	not	based	on	a	

limited	list	of	statutory	factors,	but	instead	on	an	open-ended	inquiry	requiring	

findings	 regarding	 the	 extent	 to	 which	 the	 parents	 participate	 in	 the	 “child’s	

total	care,”	id.,	the	mere	fact	that	parties	agree	to	shared	primary	residence	in	a	
12	

settlement	agreement	is	insufficient	by	itself	to	establish	that	the	parties	also	

agree	 that	 they	 provide	 substantially	 equal	 care—even	 if	 the	 time	 the	 child	

spends	 with	 each	 parent	 is	 roughly	 equal.	 	 As	 we	 have	 made	 clear,	 the	

determination	 of	 substantially	 equal	 care	 is	 based	 on	 more	 than	 a	 rigid	

calculation	of	time	spent	with	each	parent	or	what	responsibilities	the	parents	

share.		See	Pratt,	2009	ME	28,	¶	11,	967	A.2d	685.	

	     [¶20]		The	limited	testimony	at	the	settlement	hearing	provided	no	basis	

for	 the	 court	 to	 conclude	 that	 the	 parties	 agreed	 that	 they	 were	 providing	

“substantially	equal	care”	for	their	son	as	defined	by	statute.		See	19-A	M.R.S.	

§§	 2001(8-A),	 2006(5)(D-1).	 	 On	 the	 contrary,	 the	 statements	 by	 Mitchell’s	

attorney	during	the	May	10	hearing	and	in	his	June	7	letter	made	it	abundantly	

clear	that	the	parties	were	very	much	not	in	agreement.		The	court’s	finding,	

characterized	as	a	decision	of	law,	that	the	parties	had	agreed	to	a	substantially	

equal	 care	 arrangement	 with	 regard	 to	 their	 son	 was	 reached	 without	

providing	the	parties	with	a	meaningful	opportunity	to	present	evidence	on	this	

hotly-contested	 factual	 issue,	 and	 thus	 constituted	 error.	 	 Accordingly,	 we	

vacate	the	judgment	in	part	and	remand	for	the	court	to	hold	an	evidentiary	
                                                                                            13	

hearing	 on	 the	 issue	 of	 computation	 of	 child	 support	 pursuant	 to	 the	 child	

support	guidelines.2	

    	    The	entry	is:	
    	
                            Paragraph	 (4)	 of	 the	 divorce	 judgment	
                            imposing	 a	 child	 support	 obligation	 on	
                            Mitchell	 is	 vacated.	 	 Remanded	 for	 an	
                            evidentiary	 hearing	 on	 the	 issue	 of	 child	
                            support	and	for	further	proceedings.	
    	
	        	        	         	     	      	      	
  	
Jed	Davis,	Esq.	(orally),	Jim	Mitchell	and	Jed	Davis,	P.A.,	Augusta,	for	appellant	
Joyce	E.	Mitchell	
	
Dori	F.	Chadbourne,	Esq.	(orally),	Chadbourne	Law	Offices,	P.A.,	Portland,	for	
appellee	Alexander	S.	Krieckhaus	
	
	
Portland	District	Court	docket	number	FM-2014-983	
FOR	CLERK	REFERENCE	ONLY	




    2
    		Because	we	vacate	and	remand	for	an	evidentiary	hearing,	we	do	not	reach	the	remainder	of	
Mitchell’s	arguments.	
