MAINE SUPREME JUDICIAL COURT                                                       Reporter of Decisions
Decision:    2015 ME 81
Docket:      Han-14-427
Submitted
  On Briefs: June 2, 2015
Decided:     July 7, 2015

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



                                AMY E. (BODDY) DICKENS

                                                   v.

                                   WILLIAM JOHN BODDY

ALEXANDER, J.

         [¶1] William John Boddy appeals from a judgment entered in the District

Court (Ellsworth, Mitchell, J.) denying, in part, his motion to modify a divorce

judgment. Boddy contends that the court was compelled by the evidence to find

that he was providing substantially equal care to his child and to adjust his child

support obligation accordingly, and that it clearly erred by finding no substantial

change in circumstances sufficient to modify the child’s residency. Thus, Boddy

contends, the court abused its discretion by denying his motion as to these issues.1

We affirm.



   1
     Boddy also argues that the court erred by failing to admit certain evidence at trial. Based upon the
record before us, Boddy has not demonstrated that the trial court abused its discretion by excluding that
evidence, see Levesque v. Cent. Me. Med. Ctr., 2012 ME 109, ¶ 16, 52 A.3d 933, and thus has not met his
burden of persuasion on appeal, see Bizier v. Town of Turner, 2011 ME 116, ¶ 8, 32 A.3d 1048.
2

                               I. CASE HISTORY

      [¶2] William John Boddy and Amy E. Dickens (formerly Amy D. Boddy)

were married in Eastbrook in July 2007 and have one child. Dickens filed a

complaint for divorce in April 2008, and the two were divorced by a judgment

entered by the District Court (Ellsworth, Staples, J.) in June 2010. The original

judgment provided for shared parental rights and responsibilities of the parties’

child, awarded Dickens primary residency, required Boddy to pay $142.74 weekly

in child support, and appointed a parenting coordinator.

      [¶3]   Boddy moved to modify the judgment in December 2011.              In

March 2013, the court (Field, J.) modified the divorce judgment by an order that

maintained primary residency with Dickens and shared parental rights and

responsibilities between the parties, but provided a new schedule for parent/child

contact, which placed the child with her father every other Wednesday to Sunday

during the school year and every other week for the full week during summer

vacations. In addition, the court reduced Boddy’s weekly child support obligation

from $57.75, the sum indicated by the child support guidelines, to $35.82, “in

recognition of [Boddy’s] substantially equal time with the child during the summer

months.” See 19-A M.R.S. § 2006(5)(D-1) (2014). At the time that the 2013 order

issued, Boddy was unemployed.
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      [¶4] Recognizing that the child would begin school in the fall of 2013, the

court also provided that “[a]t the conclusion of the child’s second grade school

year, or June of 2016, whichever occurs first, the parties shall assess the

appropriateness of a move to a year round equal, shared parental residential

arrangement for her.”

      [¶5] One year later, Boddy filed a second motion to modify. By this time,

he had become employed and was earning slightly less than was Dickens. In that

motion, Boddy asserted that there had been three changes in circumstances: (1) his

income had increased by over twenty percent, (2) he had been providing

substantially equal care for the past year, and (3) the child had started attending

school.   Boddy requested that the court declare that the parties were currently

providing substantially equal care for the child pursuant to 19-A M.R.S.

§ 2006(5)(D-1) and provide for shared residence between the parties.

See 19-A M.R.S. § 1653(2)(D) (2014).

      [¶6]    The court (Mitchell, J.) held a hearing on the motion in

September 2014. Both parties provided child support affidavits and testified as to

their respective incomes. Boddy testified that he did not seek to modify the

parent/child contact arrangement but wanted the court to recognize that his

involvement in the child’s life under the present contact schedule was sufficient to

qualify as “substantially equal care” pursuant to 19-A M.R.S. § 2006(5)(D-1). He
4

testified that in addition to the time he spends with the child when she is at his

residence, Boddy spends time with her by attending and supporting her at events in

the community, including coaching and attending her soccer games and other

activities. Boddy testified that if the court did not recognize substantially equal

care and create a child support obligation to reflect that finding, he would not be

able to provide as much for his child while she is with him because of his increased

support obligation.2

        [¶7] The court ruled from the bench at the close of the hearing. The court

found that Dickens’s income is $47,234, Boddy’s income and earning capacity is

$42,000, and Dickens now pays $117.71 per week for health insurance for the

child. The court granted Boddy’s motion to modify in part, finding a substantial

change in circumstances to warrant modifying child support payments because the

parties’ incomes had changed such that the most recent support order and Boddy’s

obligation as calculated with the parties’ new incomes varied by over fifteen

percent. See 19-A M.R.S. § 2009(3) (2014).

        [¶8] The court denied Boddy’s motion with respect to a modification of the

prior order “as it pertains to primary residence.” The court found that Boddy, as

the party with the burden of proof to support his request for modification, had not

    2
      In addition to the changes he alleged in his motion to modify, Boddy also testified that another
change in circumstances was that a 2012 amended order that a parenting coordinator be retained and paid
for had been terminated in January 2014.
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demonstrated a change in circumstances sufficient to warrant modifying the earlier

order regarding the child’s residency. In addition, the court found that, to the

extent Boddy was attempting to prove substantially equal care to warrant a

deviation from the child support guidelines, Boddy “ha[d] not carried his burden in

that regard either.”

      [¶9] The court requested that Dickens prepare an order consistent with its

ruling. Before an order was entered, Boddy filed a motion for findings of fact and

conclusions of law pursuant to M.R. Civ. P. 52.

      [¶10] In an order signed on September 17, 2014, but not docketed until

October 6, the court issued its written findings. For essentially the same reasons as

it had stated from the bench, the court granted Boddy’s motion to modify in part,

by modifying Boddy’s child support obligation to reflect his changed employment

status, but denying his requests to recognize substantially equal care and provide

for shared residency. The order obligates Boddy to pay $116.64 each week, rather

than the $153.69 called for by the child support guidelines, and explains: “The new

[child support] calculations follow the same formula specified in detail in the

[prior] order, with the same downward deviat[ion] granted to [Boddy]. . . . [B]ased

on the evidence presented at trial, the [c]ourt finds no grounds to change the
6

formula.”3 To the extent that Boddy sought findings in addition to those stated in

the court’s written order, the court also denied Boddy’s motion for findings of fact.

Boddy timely appealed. See M.R. App. P. 2(b)(3); 14 M.R.S. § 1901(1) (2014).

                                    II. LEGAL ANALYSIS

        [¶11] Before beginning our analysis of the law, we note, as the trial court

also recognized, that the record indicates that Boddy is and has been an involved

and supportive parent. What we must decide here is not whether Boddy is being a

good parent, but whether, pursuant to statute, his level of involvement and support

justifies a downward modification of his child support obligation beyond that

already recognized in the court’s order.

        [¶12] We review a trial court’s grant or denial of a motion to modify child

support and primary residence for an abuse of discretion, and we review factual

findings for clear error. See Akers v. Akers, 2012 ME 75, ¶ 2, 44 A.3d 311. As the

party seeking to modify the court’s order to achieve a further downward deviation

of his child support obligation, Boddy had the burden of proof to demonstrate that

he was providing “substantially equal care” for his child pursuant to 19-A M.R.S.

§ 2006(5)(D-1). See Pratt v. Sidney, 2009 ME 28, ¶ 10, 967 A.2d 685 (stating that


    3
     Rather than being obligated to pay Dickens $7,991.88 each year to help her support their daughter,
Boddy is required to pay $6,065.28. This deviation effects a 24% decrease in Boddy’s child support
obligation from the guideline amount, closely approximating the portion of the year that the parties
actually have shared primary residence, i.e., eleven weeks, or 21% of the year.
                                                                                  7

the party contending that he or she provides substantially equal care “has the

burden of proof on that issue”). A party having the burden of proof on an issue can

prevail on a sufficiency of the evidence challenge to a finding that his or her

burden has not been met only by demonstrating that a contrary finding is

compelled by the evidence in the record. St. Louis v. Wilkinson Law Offices, P.C.,

2012 ME 116, ¶ 16, 55 A.3d 443; Handrahan v. Malenko, 2011 ME 15, ¶ 13,

12 A.3d 79.

      [¶13] Here, because of Boddy’s substantial increase in income, there is no

dispute that since the prior order, there had occurred a substantial change in

circumstances sufficient to justify a modification of the child support order.

See Smith v. Padolko, 2008 ME 56, ¶ 11, 955 A.2d 740. “If a child support order

varies more than 15% from a parental support obligation determined under section

2006, the court or hearing officer shall consider the variation a substantial change

of circumstances” and modify the child support order in accordance with

19-A M.R.S. § 2006 (2014). 19-A M.R.S. § 2009(3).

      [¶14] When “there has been a substantial change of circumstances as to

factors affecting child support, . . . the court is free to consider all the

circumstances relevant to a proper determination of the child support obligation,

including whether the parties are providing substantially equal care of the minor

child.” Pratt, 2009 ME 28, ¶ 9, 967 A.2d 685.
8

        [¶15] “If the court . . . determines that the parties provide substantially equal

care for a child for whom support is sought, presumptive support must be

calculated in accordance with [section 2006(5)(D-1)].” 19-A M.R.S. § 2006(4).

Section 2006(5)(D-1)(3) provides that “[t]he party with the higher annual gross

income has a presumptive obligation to pay the other party” one of two potential

amounts as determined by that subsection.4 “‘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)

(2014).

        [¶16] Here, when calculating the new support obligation, the court was free

to consider anew whether the parties were providing substantially equal care.

See 19-A M.R.S. § 2006(5)(D-1); Pratt, 2009 ME 28, ¶ 9, 967 A.2d 685. The

court found that Boddy had failed to prove that the parties were providing

substantially equal care, and a contrary finding is not compelled by the record. In

its analysis, the court properly considered multiple factors. See 19-A M.R.S.

§ 2001(8-A); Pratt, 2009 ME 28, ¶ 11, 967 A.2d 685.


    4
      Title 19-A M.R.S. § 2006(5)(D) (2014) provides that “[w]hen the parties have equal annual gross
incomes and provide substantially equal care for each child for whom support is being determined, neither
party is required to pay the other a parental support obligation.” Subsection D is not at issue in this case,
however, because the parties do not have equal annual gross incomes.
                                                                                   9

      [¶17] Generally, the parent who provides more of the child’s total care,

which would include “residential, educational, recreational, child care and medical,

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

greater cumulative economic obligation as a result of providing that care. Thus,

the child support guidelines generally require the noncustodial parent to pay child

support to the parent with primary residence to support that economic obligation.

See 19-A M.R.S. § 2006(4). Section 2006(5)(D-1) provides a different support

calculation only when the parties provide substantially the same amount of care

(and presumably bear substantially the same economic burdens). See 19-A M.R.S.

§§ 2001(8-A), 2006(4), (5)(D-1).

      [¶18] In this case, for about eleven weeks in the summer, Boddy has equal

contact with his child, which the court has recognized with a downward deviation

in his child support obligation. For the remainder of the year, the child spends four

out of every fourteen days at Boddy’s residence. Boddy contends that his time

attending and supporting his child at school and community events involving the

child makes him a “substantially equal care” provider. Boddy’s attendance and

support at such events in the school and the community may be important to the

child’s well-being, but these activities do not constitute the provision of

“substantially equal care.” Dickens remains primarily responsible for the child

during a significant majority of the year, and the support Boddy is obliged to pay
10

does not even equal the amount Dickens pays for the child’s health insurance. The

record demonstrates that the court considered the appropriate factors in making its

finding, a contrary finding is not compelled by the evidence, and the court’s

affirmative finding that the parties are not providing substantially equal care is

supported by competent evidence in the record. See Jabar v. Jabar, 2006 ME 74,

¶ 17, 899 A.2d 796.

         [¶19] Finally, the court did not clearly err by finding that the parties’

changed incomes and the termination of the parenting coordinator’s role did not

constitute a substantial change in circumstances to warrant modifying the prior

order regarding the child’s residence, and did not abuse its discretion by denying

Boddy’s motion in that regard.5 See Akers, 2012 ME 75, ¶ 2, 44 A.3d 311.

         The entry is:

                         Judgment affirmed.




     5
     As the trial court noted, the prior order contemplated that the child would start school and that
Boddy would have a particular contact schedule with the child. Thus, the fact that the child started school
and that Boddy was appropriately exercising his parental rights and responsibilities as the order
contemplated was not a “change in circumstances since the entry of the most recent decree” to warrant
modification. See Smith v. Padolko, 2008 ME 56, ¶ 11, 955 A.2d 740.
                                                              11


On the briefs:

        William John Boddy, appellant pro se

        Barbara A. Cardone, Esq., Lanham Blackwell & Baber,
        Bangor, for appellee Amy E. Dickens



Ellsworth District Court docket number FM-2008-112
FOR CLERK REFERENCE ONLY
