MAINE	SUPREME	JUDICIAL	COURT	                                           Reporter	of	Decisions	
Decision:	     2017	ME	39	
Docket:	       Pen-16-104	
Submitted		
			On	Briefs:	 January	19,	2017		      	     	     	    	      	
Decided:	      March	7,	2017	
	
Panel:	        SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                    LAURA	A.	MILLAY	
                                            	
                                           v.	
                                            	
                                   JOHN	E.	MCKAY	JR.	
	
	
PER	CURIAM	

       [¶1]	 	 Laura	 A.	 Millay	 and	 John	 “Jack”	 E.	 McKay	 Jr.	 were	 married	 on	

November	 18,	 2006,	 and	 have	 two	 young	 children.	 	 A	 few	 days	 before	 the	

marriage,	 when	 Millay	 was	 pregnant	 with	 their	 first	 child,	 McKay	 presented	

Millay	 with	 a	 prenuptial	 agreement,	 which	 she	 signed	 without	 benefit	 of	

counsel.			

       [¶2]	 	 McKay	 entered	 the	 marriage	 with	 substantial	 financial	 assets,	

including	 revocable	 and	 irrevocable	 trusts	 worth	 over	 $1,000,000	 and	 two	

properties	located	on	Ohio	Street	in	Bangor.		Before	their	marriage,	the	couple	

purchased,	 as	 joint	 tenants,	 property	 on	 Verona	 Island.	 	 McKay	 spent	 over	

$400,000	 of	 his	 nonmarital	 assets	 to	 support	 the	 relationship	 and	 the	

marriage,	including	the	purchase	of	property	on	Verona	Island,	contributions	
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to	 Millay’s	 education,	 and	 renovations	 to	 the	 Ohio	 Street	 and	 Verona	 Island	

properties.	 	 Despite	 the	 property	 improvements,	 all	 the	 properties’	 values	

decreased	significantly	during	the	marriage	due	to	market	forces.			

      [¶3]	 	 After	 six	 years	 of	 marriage,	 Millay	 and	 McKay	 separated	 in	 April	

2013.	 	 McKay	 then	 conveyed	 his	 interest	 in	 the	 Verona	 Island	 property	 to	

Millay.	 	 She	 filed	 for	 divorce	 on	 September	 13,	 2013,	 in	 the	 District	 Court	

(Bangor)	 on	 the	 ground	 of	 irreconcilable	 differences.	 	 See	 19-A	 M.R.S.	

§	902(1)(H)	(2016).			

      [¶4]	 	 After	 a	 two-day	 trial,	 by	 judgment	 dated	 January	 21,	 2016,	

supported	 by	 extensive	 findings,	 the	 court	 (Jordan,	 J.)	 set	 aside	 the	 parties’	

nonmarital	 property;	 divided	 their	 joint	 assets	 and	 debts;	 ordered	 McKay	 to	

pay	 Millay	 child	 support,	 retroactive	 to	 February	 2015;	 declined	 to	 award	

spousal	 support	 other	 than	 as	 part	 of	 property	 division;	 denied	 Millay’s	

request	 for	 attorney	 fees;	 and	 incorporated	 into	 the	 judgment	 the	 parties’	

agreement	regarding	parental	rights	and	responsibilities.			

      [¶5]	 	 In	 its	 judgment,	 the	 court	 recognized	 the	 existence	 of	 the	

prenuptial	agreement,	noted	the	infirmities	in	its	formation,	indicated	that	its	

decisions	regarding	property	division	and	spousal	support	were	made	based	

on	 the	 laws	 and	 general	 principles	 courts	 apply	 in	 dividing	 marital	 property	
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and	determining	spousal	support,	and	stated	that	“an	analysis	independent	of	

the	 prenuptial	 agreement	 renders	 the	 issues	 as	 to	 its	 enforceability	

irrelevant.”		Addressing	allocation	of	the	Verona	Island	property	to	Millay,	the	

court	suggested	that	its	award	to	Millay	may	have	been	less	favorable	to	her,	

but	for	provisions	in	the	prenuptial	agreement.	

      [¶6]	 	 Millay	 filed	 several	 post-judgment	 motions	 pursuant	 to	 M.R.	

Civ.	P.	52(b),	 59(a),	 (b),	 and	 (e);	 and	 60(b)(6).	 	 She	 now	 appeals	 from	 the	

court’s	 property	 division,	 spousal	 support,	 and	 attorney	 fee	 determinations,	

from	 some	 evidentiary	 rulings,	 and	 from	 the	 denial	 of	 her	 post-judgment	

motions.		See	14	M.R.S.	§	1901	(2016);	19-A	M.R.S.	§104	(2016),	M.R.	App.	2.	

                                 I.		LEGAL	ANALYSIS	

      [¶7]	 	 Millay’s	 challenges	 focus	 on	 the	 division	 of	 marital	 property	 and	

the	 denial	 of	 spousal	 support	 and	 attorney	 fees.	 	 Regarding	 these	 issues,	 the	

court	 findings,	 supported	 by	 the	 record,	 indicate	 that	 (1)	 McKay	 had	

contributed	to	the	marriage	approximately	$400,000	of	his	nonmarital	assets;	

(2)	he	had	made	payments	to	support	Millay	completing	her	college	education	

during	 the	 marriage;	 (3)	 Millay	 left	 the	 marriage	 with	 a	 valuable	 asset,	 the	

Verona	 Island	 real	 estate,	 which	 she	 did	 not	 have	 prior	 to	 the	 marriage;	 and	

(4)	the	parties	had	similar	incomes	or	earning	capacity.				
4	

      [¶8]		When	a	party	to	a	domestic	relations	appeal	“asserts	that	the	trial	

court’s	 findings	 are	 not	 supported	 by	 evidence	 in	 the	 record,	 we	 review	 the	

record,	and	reasonable	inferences	that	may	be	drawn	from	the	record,	in	the	

light	most	favorable	to	the	trial	court’s	judgment	to	determine	if	the	findings	

are	 supportable	 by	 competent	 evidence.”	 	 Sloan	 v.	 Christianson,	 2012	 ME	 72,	

¶	2,	43	A.3d	978.		See	also	Buck	v.	Buck,	2015	ME	33,	¶	5,	113	A.3d	1095.		Here,	

the	 record	 before	 the	 District	 Court	 fully	 supports	 the	 court’s	 findings	 in	

reaching	its	decision.			

      [¶9]	 	 With	 the	 court’s	 findings	 supported	 by	 the	 record,	 we	 review	 a	

court’s	 ultimate	 decision	 for	 an	 abuse	 of	 discretion	 or	 an	 error	 of	 law.		

See	Buck,	¶	6.		On	this	record,	the	court	had	a	considerable	range	of	discretion	

or	 choice	 in	 allocating	 marital	 property	 and	 awarding,	 or	 not	 awarding,	

spousal	 support	 or	 attorney	 fees.	 	 See	 Violette	 v.	 Violette,	 2015	 ME	 97,	

¶¶	13-28,	 120	 A.3d	 667;	 Buck,	 2015	 ME	 33,	 ¶	 6,	 113	 A.3d	 1095.	 	 The	 short	

duration	 of	 the	 marriage,	 the	 parties’	 relatively	 equal	 incomes	 and	 earning	

capacities,	and	the	award	of	a	substantial	marital	asset	to	Millay	fully	support	

the	decision	not	to	award	spousal	support.		See	Violette,	¶	18	(“We	review	an	

award	 of	 spousal	 support	 for	 an	 abuse	 of	 discretion.”);	 19-A	 M.R.S.	

§	951-A(2)(A)	(2016).	
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       [¶10]	 	 The	 very	 deferential	 standard	 of	 review	 that	 we	 must	 apply	

when,	as	here,	the	court’s	findings	are	supported	by	the	record,	and	the	broad	

discretion	 the	 trial	 court	 has	 in	 making	 its	 determinations	 requires	 that	 any	

appeal	 be	 carefully	 considered	 and	 narrowly	 focused	 recognizing	 the	

applicable	standard	of	review.			

       [¶11]	 	 We	 take	 this	 opportunity	 to	 encourage	 counsel	 to	 reduce	 costs	

and	improve	chances	of	success	by	better	focusing	their	arguments	on	appeal.		

On	 this	 appeal,	 Millay,	 through	 counsel,	 has	 taken	 a	 “buckshot	 approach,”	

arguing	 numerous	 procedural	 and	 substantive	 issues,	 apparently	 “hoping	

something	will	stick.”		Leigh	Ingalls	Saufley,	Amphibians	and	Appellate	Courts,	

51	 Me.	 L.	 Rev.	 18,	 22-23	 (1999)	 (“Do	 not	 use	 the	 buckshot	 approach	 hoping	

something	 will	 stick.	 	 Some	 very	 good	 arguments	 have	 been	 lost	 in	 a	 sea	 of	

extraneous	 issues.	 	 If	 your	 client	 is	 expecting	 your	 brief	 to	 be	 a	 lengthy	 and	

erudite	 tome,	 educate	 him	 or	 her	 on	 the	 necessity	 of	 brevity	 and	 clarity.”	

(emphasis	in	original));	see	also	United	States	v.	Price,	988	F.2d	712,	714,	722	

(7th	 Cir.	 1993)	 (addressing	 an	 appeal	 that	 presented	 numerous,	 poorly	

supported	challenges	to	a	defendant’s	guilty	plea	and	resulting	sentence	and	

concluding	that	the	“appeal	reads	like	a	criminal	lawyer's	primer	of	defenses.		

This	 court	 has	 disapproved	 this	 sort	 of	 buckshot	 approach	 where	 the	
6	

defendant	 has	 only	 a	 mere	 hope	 that	 a	 pellet	 will	 strike.	 	 None	 of	 [the	

defendant’s]	pellets	have	found	their	mark.”	(citation	omitted)).	

        [¶12]		Millay	contends	that	the	court	erred	by:	

     • denying	her	motion	for	further	findings	of	fact	and	conclusions	of	law,	a	
       motion	that	was	not	supported	by	the	filings	required	by	the	Rules,	see	
       M.R.	Civ.	P.	52(a),	(b),	Blue	Br.	9-11;		
       	
     • denying,	 without	 comment,	 a	 single	 motion	 purporting	 to	 request	
       further	findings	of	fact	and	conclusions	of	law,	a	new	trial,	alteration	or	
       amendment	 of	 the	 judgment,	 relief	 from	 judgment,	 and	 clarification	 of	
       the	judgment,	Blue	Br.	9-10;		
       	
     • granting	 McKay’s	 motion	 to	 amend	 the	 judgment	 to	 include	 statutorily	
       mandated	 language,	 correct	 a	 typographical	 error,	 and	 add	 a	 tax	
       provision	 regarding	 the	 children,	 a	 wholly	 inexplicable	 argument	 on	
       appeal,	Blue	Br.	9-11;		
       	
     • denying	her	motion	to	vacate	the	amended	judgment,	Blue	Br.	9-11;	
       	
     • issuing	 an	 ambiguous	 judgment	 regarding	 the	 prenuptial	 agreement,	
       Blue	Br.	12;	
       	
     • giving	 effect	 to	 the	 prenuptial	 agreement,	 Blue	 Br.	 16,	 despite	 the	
       contrary	statement	by	the	court;		
       	
     • setting	aside	the	Ohio	Street	properties	and	Boston	Athenaeum	share	to	
       McKay	as	his	nonmarital	property,	Blue	Br.	17-21;		
       	
     • “awarding	 nothing”	 to	 her	 when	 she	 alleges	 that	 the	 parties	 have	
       “drastically	 different”	 economic	 circumstances	 and	 she	 is	 “living	 a	
       lifestyle	far	less	than	that	of”	McKay,	Blue	Br.	23;		
       	
     • not	equitably	assigning	her	student	loan	debt	and	her	debt	to	the	Millay	
       Family	Trust,	Blue	Br.	24;		
       	
                                                                                 7	

• failing	to	address	McKay’s	alleged	economic	misconduct	regarding	their	
  2012	tax	refund,	Blue	Br.	22-23;		
  	
• denying	 her	 request	 to	 order	 the	 sale	 of	 McKay’s	 nonmarital	 firearms,	
  Blue	Br.	20;		
  	
• not	imputing	full-time	income	to	McKay,	Blue	Br.	25,	27-28;		
  	
• not	 finding	 that	 McKay’s	 capital	 gains	 were	 from	 an	 ongoing	 source,	
  Blue	Br.	25-26;		
  	
• not	awarding	child	support	retroactive	to	April	2013,	Blue	Br.	28;		
  	
• not	 finding	 that	 the	 parties	 perform	 “substantially	 equal	 care”	 of	 the	
  children	and	calculating	child	support	accordingly,	Blue	Br.	25-28;	
   	
• allowing	 expert	 witness	 testimony	 from	 a	 witness	 identified	 after	 the	
  witness	designation	deadline	had	passed,	Blue	Br.	30-33;		
  	
• admitting	 McKay’s	 exhibit	 32,	 which	 was	 a	 summary	 of	 his	 testimony	
  about	nonmarital	funds	spent	during	the	marriage,	and	mentioning	it	in	
  its	 judgment	 without	 indicating	 that	 McKay’s	 testimony	 “altered	 the	
  document	significantly”,	Blue	Br.	30-31;		
  	
• excluding	 her	 testimony	 about	 McKay’s	 lack	 of	 cooperation,	 but	
  admitting	 over	 objection	 his	 exhibit	 38,	 which	 was	 a	 partial	 list	 of	
  expenses	he	incurred	after	separation,	Blue	Br.	30-33;		
  	
• admitting	de	bene	for	impeachment	purposes	McKay’s	exhibit	41,	which	
  was	 a	 series	 of	 emails	 between	 Millay	 and	 McKay,	 and	 denying	 her	
  motion	requesting	that	the	court	consider	the	complete	series	of	emails,	
  Blue	Br.	30-33;	and		
  	
• not	 awarding	 her	 attorney	 fees	 when	 McKay	 is	 in	 a	 better	 position	 to	
  absorb	 the	 costs	 of	 litigation	 and	 she	 “sought	 compromises	 and	
  solutions	throughout	this	process	while	[McKay]	did	not.”		Blue	Br.	29.	
  	
8	

         [¶13]	 	 This	 buckshot	 and	 substantially	 unsupported	 strategy	 for	

advancing	issues	on	appeal	is	not	an	effective	approach	to	appellate	advocacy.		

Most	complaints	about	the	trial	court’s	actions	are	asserted	without	apparent	

recognition	 of	 the	 very	 deferential	 standards	 of	 review	 that	 we	 must	 apply	

after	a	trial	in	which	the	parties	had	a	full	and	fair	opportunity	to	present	their	

positions	 and	 after	 a	 trial	 court	 decision	 that	 thoroughly	 addressed	 the	

contested	 issues	 and	 made	 findings	 supported	 by	 the	 record.	 	 The	 issues	 on	

this	 appeal	 are	 not	 close;	 at	 most,	 the	 appeal	 should	 have	 focused	 on	 a	 few	

narrow	 points	 that	 had	 the	 best	 prospect	 of	 serious	 consideration.	 	 Instead,	

potentially	meritorious	points	on	appeal,	if	any	exist,	have	been	lost	in	the	fog	

of	insubstantial	and	unsupportable	objections	to	the	trial	process	and	the	trial	

court’s	decision.	

         The	entry	is:	

                            Judgment	affirmed.	
	
	      	      	    	     	       	
	
Martha	J.	Harris,	Esq.,	Paine,	Lynch	&	Harris,	P.A.,	Bangor,	for	appellant	Laura	
A.	Millay	
	
Peter	 B.	 Bickerman,	 Esq.,	 Lipman	 &	 Katz,	 P.A.,	 Augusta,	 for	 appellee	 John	 E.	
McKay,	Jr.	
	
	
Bangor	District	Court	docket	number	FM-2013-518	
FOR	CLERK	REFERENCE	ONLY	
