MAINE	SUPREME	JUDICIAL	COURT	                                           Reporter	of	Decisions	
Decision:	     2018	ME	104	
Docket:	       Wal-17-552	
Submitted	
  On	Briefs:		 May	31,	2018	
Decided:	      July	24,	2018	
	
Panel:	        SAUFLEY,	C.J.,	and	ALEXANDER,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                KATRINA	I.	PETERSEN	
                                           	
                                          v.	
                                           		
                                PAUL	J.	VAN	OVERBEKE	
	
	
GORMAN,	J.	

	      [¶1]		Paul	J.	Van	Overbeke	appeals	from	a	judgment	of	the	District	Court	

(Belfast,	Worth,	J.)	modifying	his	child	support	obligation	to	Katrina	I.	Petersen	

regarding	their	minor	child.		Van	Overbeke	argues	that	neither	party	requested	

that	the	court	modify	child	support	and	that	the	court	erred	both	by	addressing	

the	issue	and	in	its	calculations.		Because	the	court	had	authority	to	modify	child	

support	but	erred	in	its	calculations,	we	vacate	the	judgment	and	remand	for	

the	court	to	enter	a	judgment	that	correctly	calculates	the	parties’	child	support	

obligations.			

                                    I.		BACKGROUND	

       [¶2]	 	 On	 November	 20,	 2008,	 the	 District	 Court	 (Belfast,	 Mathews,	 M.)	

granted	a	divorce	to	Van	 Overbeke	 and	 Petersen.		 Pursuant	to	the	judgment,	
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which	was	entered	by	agreement,	the	parties	had	shared	parental	rights	to	their	

then	 three-year-old	 child.	 	 In	 addition,	 the	 child’s	 primary	 residence	 was	 to	

alternate	 every	 four	 months	 between	 Minnesota,	 where	 Van	Overbeke	 lived,	

and	 Maine,	where	Petersen	lived.		Each	 parent	was	responsible	for	paying	to	

have	the	child	“delivered	to	the	other.”		This	arrangement	was	to	continue	until	

“the	child	is	of	age	to	start	kindergarten	in	either	state.”		The	judgment	required	

neither	party	to	pay	child	support	and	explained	that	the	deviation	was	based	

on	“[t]he	cost	of	travel	related	[to]	the	minor	child.”		Child	support	documents	

attached	to	the	 divorce	 judgment	show	 that,	had	child	 support	been	ordered	

pursuant	 to	 the	 guidelines,	 Van	 Overbeke	 would	 have	 been	 ordered	 to	 pay	

$89	per	week.			

         [¶3]		In	2009,	each	party	filed	a	motion	to	modify,	asking	that	the	court	

establish	 a	 new	 contact/residence	 schedule	 for	 the	 child.	 	 In	 an	 agreed-to	

judgment	dated	July	26,	2010,	the	court	(Waterville,	Dow,	J.)1	ordered	that	the	

child	would	spend	the	school	year	with	Petersen	in	Maine	and	the	summers	in	

Minnesota	 with	 Van	 Overbeke	 and	 made	 further	 arrangements	 for	 contact	

between	the	child	and	his	father.		Van	Overbeke	was	made	responsible	for	all	



     1		In	June	of	2009,	the	court	(Belfast,	Field,	J.)	had	granted	Petersen’s	motion	to	change	venue	to	

the	District	Court	in	Waterville.			
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of	the	costs	of	transporting	the	child	to	and	from	Minnesota.		The	court	ordered	

that	 Van	 Overbeke	 would	 pay	 no	 child	 support	 and	 stated	 that	 the	 deviation	

was	based	on	Van	Overbeke’s	assumption	of	the	costs	of	transportation	“and	

the	substantial	time	of	contact	.	.	.	during	the	summer	months.”			

      [¶4]	 	 On	 June	 12,	 2017,	 Van	 Overbeke	 filed	 a	 motion	 to	 modify	 in	 the	

District	 Court	 in	 Waterville.	 	 In	 his	 motion,	 Van	 Overbeke	 asked	 that	 the	

parental	rights	and	responsibilities	order	be	amended	to	order	that	the	child	

spend	the	school	year	with	him	in	Minnesota	and	the	summers	with	Petersen	

in	 Maine.	 	 Petersen,	 not	 represented	 by	 counsel,	 responded.	 	 The	 court	

(Ham-Thompson,	M.)	held	a	case	management	conference	and	issued	an	order	

dated	July	24,	2017,	indicating	that	child	support,	among	other	issues,	remained	

in	dispute	and	that	the	case	would	be	transferred	back	to	the	District	Court	in	

Belfast.	 	 The	 court	 (Belfast,	 Worth,	J.)	 held	 a	 testimonial	 hearing	 on	

November	20,	2017,	and	made	the	following	findings	of	fact	in	its	order	dated	

December	6,	2017.			

	     [¶5]	 	 Van	 Overbeke	 lives	 in	 Minnesota	 with	 his	 second	 wife	 and	 their	

three	 children.	 	 He	 earns	 approximately	 $60,000	 per	 year.	 	 Petersen	 lives	 in	

Maine,	where	she	earns	approximately	$40,000	per	year.			
4	

      [¶6]	 	 The	 child,	 who	 is	 now	 twelve	 years	 old,	 has	 lived	 with	 Petersen	

during	 the	 school	 year	 and	 with	 Van	 Overbeke	 in	 Minnesota	 in	 the	 summer	

since	 2010.	 	 He	 does	 very	 well	 in	 school	 and	 participates	 in	 a	 variety	 of	

activities.		Noting	that	the	child	“has	had	the	same	core	group	of	friends	since	

age	5,	but	is	generous	and	compassionate	enough	to	include	other	children	in	

his	friendships,”	the	court	determined	that	“[i]t	would	not	be	in	the	child’s	best	

interest	to	make	a	change	in	primary	residence	now.”			

      [¶7]		Having	denied	Van	Overbeke’s	motion	to	modify	the	child’s	primary	

residence,	the	court	turned	to	the	issue	of	child	support,	which	it	noted		“was	

identified	as	in	dispute	now.”		In	its	judgment,	the	court	found	that	there	was	a	

“substantial	discrepancy	between	the	parents’	earnings.”		The	court’s	judgment	

modified	 the	 existing	 child	 support	 order	 by	 incorporating	 a	 child	 support	

worksheet	and	order	that	calculated	the	parties’	support	obligations.			

      [¶8]		The	court’s	child	support	worksheet	listed	Petersen’s	gross	income	

as	$40,000	and	Van	Overbeke’s	gross	income	as	$80,000.		The	court	adjusted	

Van	Overbeke’s	income	by	$156	to	$79,844,	based	on	his	imputed	obligation	to	

his	 other	 three	 children.	 	 As	 for	 health	 insurance,	 the	 court	 made	 no	

adjustments	 because	 it	 found	 that	 “[t]he	 record	 does	 not	 show	 whether	 a	

parent	pays	for	health	insurance.”		The	order	did	invite	the	parties	to	“inform	
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the	Court	in	writing”	if	they	agreed	that	one	parent	did	provide	health	insurance	

and	stated	that	“a	modified	child	support	worksheet	and	order	could	be	issued.”		

The	parties	did	not	respond	to	the	court’s	invitation.	

      [¶9]		Based	on	these	calculations,	the	court	ordered	Van	Overbeke	to	pay	

Petersen	 $177	 weekly	 while	 the	 child	 is	 living	 in	 Maine	 and	 suspended	 his	

obligation	 to	 pay	 when	 the	 child	 is	 with	 him	 in	 Minnesota.	 	 The	 court	 also	

ordered	Van	Overbeke	to	continue	paying	the	child’s	transportation	costs	for	

travel	to	and	from	Minnesota	and	awarded	Petersen	the	right	to	claim	the	child	

for	income	tax	purposes.		Van	Overbeke	appeals,	challenging	only	that	portion	

of	the	court’s	judgment	that	modifies	child	support.		19-A	M.R.S.	§	104	(2017);	

M.R.	App.	P.	2B(c);	M.R.	Civ.	P.	123.	

                                   II.		DISCUSSION	

A.	   Authority	to	Modify	Child	Support	Order		

      [¶10]	 	 Van	 Overbeke	 contends	 that	 the	 court	 erred	 by	 modifying	 the	

existing	child	support	order	because	the	issue	was	“not	raised	by	either	party.”		

His	 argument	 is	 best	 characterized	 as	 a	 contention	 that	 the	 court	 lacked	 the	

legal	authority	to	modify	the	2010	child	support	order	because	his	motion	to	

modify	 primary	 residence	 and	 parental	 rights	 did	 not	 bring	 the	 proceeding	

within	the	scope	of	19-A	M.R.S.	§	2009	(2017).		“We	review	de	novo	whether	a	
6	

court	 has	 legal	 authority	 to	 take	 the	 action	 it	 has	 taken.”	 	 Efstathiou	 v.	

Aspinquid,	Inc.,	2008	ME	145,	¶	64,	956	A.2d	110.	

      [¶11]		Child	support	is	intended	to	foster	and	protect	the	best	interest	of	

a	child.		See	19-A	M.R.S.	§§	1653(1),	(3),	(8),	2007(3)	(2017);	Court	v.	Kiesman,	

2004	ME	72,	¶	9,	850	A.2d	330	(“The	primary	purpose	of	child	support	ordered	

by	a	court	or	administrative	agency	is	to	protect	the	best	interests	and	welfare	

of	the	benefiting	child.”).		Title	19-A	M.R.S.	§	2009	provides	the	procedure	by	

which	parties	can	seek	modification	of	existing	child	support	orders.		See	19-A	

M.R.S.	§	1653(10)(A)	(2017)	(“Modification	and	termination	of	child	support	

orders	are	governed	by	section	2009.”).		Our	cases	interpreting	this	provision	

have	long	held	that,	so	long	as	a	motion	to	modify	is	properly	before	the	court,	

if	the	motion	itself—or	the	opposing	party’s	response	to	that	motion—puts	the	

parties	on	notice	that	the	amount	of	child	support	may	change,	the	court	has	

authority	to	modify	the	child	support	order	to	serve	the	child’s	best	interest.		

See	 Ames	 v.	 Ames,	 2003	 ME	 60,	 ¶	 30,	 822	 A.2d	 1201	 (“[O]nce	 an	 issue	 is	

generated	by	a	pending	motion,	it	is	within	the	court’s	authority	to	fashion	an	

award	to	serve	the	children’s	best	interest.”	(quotation	marks	omitted));	Longo	

v.	Goodwin,	2001	ME	153,	¶	11,	783	A.2d	159	(“The	policy	behind	[19-A	M.R.S.	

§	2009]	is	to	require	that	the	party	who	may	be	adversely	affected	by	a	change	
                                                                                          7	

in	the	child	support	amount	be	put	on	notice	that	the	amount	may	change	.	.	.	.”	

(emphases	added));	see	also	Hinkley	v.	Hinkley,	2000	ME	64,	¶	9,	749	A.2d	752	

(“In	this	case,	where	the	issue	of	medical	decision-making	was	generated	by	a	

pending	 motion	 and	 the	 parties’	 presentations	 to	 the	 court,	 the	 court	 was	

authorized	to	fashion	an	award	to	serve	the	children’s	best	interest	.	.	.	.”).	

       [¶12]		We	addressed	a	similar	argument	to	that	raised	by	Van	Overbeke	

in	Ames,	2003	ME	60,	¶¶	26-30,	822	A.2d	1201.		In	that	case,	the	father	filed	

motions	for	contempt,	to	enforce	contact	provisions,	and	to	decrease	his	child	

support	 obligation.	 	 Id.	 ¶	3.	 	 The	 mother	 never	 specifically	 moved	 to	 modify	

child	 support	 but,	 in	 her	 response	 to	 the	 father’s	 motion,	 she	 stated	 that	 the	

father’s	higher	income	justified	an	increase	in	his	support	obligation.		Id.	¶	9.		

When	it	denied	the	father’s	motions,	the	trial	court	nonetheless	increased	the	

father’s	child	support	obligation.		Id.	¶	 10.		On	 appeal,	the	father	 argued	that	

because	the	mother	never	moved	to	modify	child	support,	the	trial	court	erred	

when	it	increased	his	support	obligation.		Id.	¶¶	11-12,	26.		We	explained	that,	

“[a]ccording	 to	 M.R.	 Civ.	 P.	 8(f),	 we	 must	 construe	 all	 pleadings	 so	 as	 to	 do	

substantial	 justice”	 and	 “construe[d]	 [the	 mother’s]	 response	 as	 properly	

notifying	[the	father]	of	the	potential	adverse	effect	of	a	change	in	support.”		Id.	
8	

¶	30	(quotation	marks	omitted).		Thus,	we	held	that	the	“issue	of	increasing	[the	

father’s]	child	support	obligation	.	.	.	was	properly	before	the	court.”		Id.		

      [¶13]		Here,	Van	Overbeke’s	motion	to	modify,	which	was	properly	before	

the	court,	sought	to	change	parental	rights	and	responsibilities	and	the	child’s	

primary	residence.		In	his	motion,	Van	Overbeke	stated	that	he	was	seeking	the	

“[s]ame	child	support	agreement,	just	opposite.”		 Petersen	responded	to	Van	

Overbeke’s	motion	by	filling	out	and	filing	with	the	court	several	forms	related	

to	family	matters.		On	one	of	the	forms	Petersen	filed,	she	“ask[ed]	the	court	to	

review	the	child	support	order	and	that	Paul	Van	Overbeke	be	ordered	to	pay	

an	appropriate	amount	for	the	care	of	[the	child].”		Construing—as	we	must—

Petersen’s	 response	 “to	 do	 substantial	 justice,”	 M.R.	 Civ.	 P.	 8(f);	 see	 Ames,	

2003	ME	60,	¶	30,	822	A.2d	1201,	we	conclude	that	Petersen	raised	the	issue	of	

child	support	in	response	to	Van	Overbeke’s	motion.			

      [¶14]		We	note	also	that	there	were	two	orders	that	put	Van	Overbeke	on	

notice	 “of	 the	 potential	 adverse	 effect	 of	 a	 change	 in	 support.”	 	 Ames,	

2003	ME	60,	¶	30,	822	A.2d	1201.		First,	in	the	July	24,	2017,	case	management	

order—issued	 just	 over	 a	 month	 after	 Van	 Overbeke	 filed	 his	 motion	 to	

modify—the	 court	 (Waterville,	 Ham-Thompson,	 M.)	 clearly	 identified	 child	

support	as	an	unresolved	issue	still	in	dispute.		Second,	in	the	pretrial/status	
                                                                                       9	

conference	 order	 issued	 after	 mediation	 and	 dated	 September	 6,	 2017,	 the	

court	(Belfast,	Martin,	M.)	required	the	parties	to	file	their	2016	W-2	forms	and	

most	recent	paychecks	so	that	those	documents	could	be	attached	to	their	child	

support	 affidavits.	 	 In	 addition,	 the	 court	 confirmed—during	 the	 hearing	

itself—that	Petersen	was	requesting	child	support.			

      [¶15]		Here,	Petersen	had	sufficiently	raised	the	issue	of	child	support	in	

response	to	Van	Overbeke’s	motion	to	modify	such	that	he	had	sufficient	notice	

that	his	child	support	obligation	may	change.		See	Longo,	2001	ME	153,	¶	11,	

783	A.2d	159.		The	court	therefore	had	the	authority	to	modify	the	child	support	

order	 in	 accordance	 with	 section	 2009.	 	 See	 Ames,	 2003	 ME	 60,	 ¶	30,	

822	A.2d	1201.		

B.	   Calculation	of	Child	Support	

	     [¶16]		Van	Overbeke	also	argues	that,	even	if	the	court	had	the	authority	

to	modify	the	child	support	order,	it	erred	by	calculating	his	support	obligation	

at	$177	per	week	while	the	child	resides	in	Maine.		We	agree.		

      [¶17]		“We	review	the	trial	court’s	award	of	child	support	for	an	abuse	of	

discretion	 and	 its	 factual	 findings	 for	 clear	 error.”	 	 Holbrook	 v.	 Holbrook,	

2009	ME	 80,	 ¶	8,	 976	 A.2d	 990	 (quotation	 marks	 omitted).	 	 Based	 on	 that	

review,	 it	 is	 clear	 that	 the	 court’s	 incorporated	 child	 support	 worksheet	 and	
10	

order	 are	 not	 fully	 supported	 by	 the	 record	 and	 contain	 determinations	 that	

directly	 contradict	 other	 findings	 in	 the	 court’s	 judgment.	 	 First,	 the	 child	

support	worksheet	lists	Van	Overbeke’s	gross	income	as	$80,000.		That	number	

is	 contrary	 to	 the	 finding	 in	 the	 court’s	 judgment	 that	 his	 income	 is	 “about	

$60,000”	per	year,	and	the	record	contains	no	evidence	that	would	support	a	

finding	that	Van	Overbeke	makes	$80,000	per	year.		Additionally,	after	finding	

that	 Van	 Overbeke	 was	 responsible	 for	 three	 additional	 minor	 children,	 the	

court	was	required	to	adjust	his	gross	annual	income	based	on	a	“theoretical	

support	obligation”	for	those	children	pursuant	to	the	child	support	guidelines.	

19-A	M.R.S.	§	2006(5)(A)	(2017).		The	court’s	adjustment	of	$156	annually	to	

reflect	 his	 obligation	 for	 those	 children	 is	 erroneous.	 	 See	 19-A	 M.R.S.	

§	2006(5)(A);	17	C.M.R.	10	144	351-15	to	-23	(2016).		

      [¶18]	 	 Finally,	 the	 court	 erred	 by	 failing	 to	 include	 “[t]he	 amount	 for	

health	insurance	premiums”	or	“[a]	requirement	that	private	health	insurance	

.	.	.	be	provided	for	the	benefit	of	the	child”	in	its	parental	support	obligation.		

19-A	M.R.S.	§	2006(8)(C)(5),	(H)	(2017).		Although	the	court	found	that	“[t]he	

record	 does	 not	 show	 whether	 a	 parent	 pays	 for	 health	 insurance,”	

Van	Overbeke’s	 child	 support	 affidavit	 indicates	 that	 he	 pays	 for	 the	 child’s	

health	 insurance	 and,	 at	 the	 hearing,	 the	 court	 itself	 reiterated	 Petersen’s	
                                                                                                          11	

request	 that	 “Van	 Overbeke	 continue	 to	 maintain	 [the	 child]	 on	 his	 health	

insurance.”		(Emphasis	added.)		

         [¶19]		Because	of	these	errors	in	its	calculations,	the	court	“exceeded	the	

bounds	of	its	discretion”	when	it	ordered	Van	Overbeke	to	pay	$177	per	week	

in	child	support	for	the	weeks	that	the	child	resides	in	Maine.2		Payne	v.	Payne,	

2006	ME	73,	¶	11,	899	A.2d	793.		We	remand	the	case	to	the	trial	court	for	it	to	

calculate	and	order	the	correct	amount	of	child	support	based	on	the	evidence	

presented	at	the	hearing	and	the	parties’	updated	child	support	affidavits.		See	

M.R.	Civ.	P.	108(a),(d)(4);	17	C.M.R.	10	144	351-15	to	-23.			

         The	entry	is:	

                            Judgment	 vacated.	 	 Remanded	 for	 further	
                            proceedings	consistent	with	this	opinion.			
	
	     	     	     	      	     	
	
Michele	D.L.	Kenney,	Esq.,	Houlton,	for	appellant	Paul	J.	Van	Overbeke	
	
Aaron	 Fethke,	 Esq.,	 Fethke	 Law	 Offices,	 Searsport,	 for	 appellee	 Katrina	 I.	
Petersen	
	
	
Belfast	District	Court	docket	number	FM-2008-22	
FOR	CLERK	REFERENCE	ONLY	




   2	 	 In	 cases	 where	 an	 order	 contains	 such	 clear	 errors	 in	 the	 calculations	 of	 child	 support	
obligations,	we	encourage	parties	to	file	a	motion	to	alter	or	amend	the	judgment	pursuant	to	M.R.	
Civ.	P.	59(e).		By	notifying	the	trial	court	of	its	error	through	a	motion	to	alter	or	amend	the	judgment,	
the	parties	could	have	saved	the	time	and	expense	associated	with	this	appeal.			
