MAINE SUPREME JUDICIAL COURT                                        Reporter of Decisions
Decision: 2014 ME 135
Docket:   Sag-14-73
Argued:   November 6, 2014
Decided:  December 4, 2014

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



                                 PATRICIA E. BONNER

                                            v.

                                   JEFF D. EMERSON

GORMAN, J.

         [¶1]    Jeff D. Emerson appeals from a judgment of the District Court

(West Bath, J.D. Kennedy, J.) denying Patricia E. Bonner’s motions to enforce

their divorce judgment and amending, sua sponte, the parties’ 2013 divorce

judgment. Emerson argues that the court was without authority to amend the

divorce judgment. Bonner cross-appeals, also challenging the court’s authority to

amend the divorce judgment. We vacate and remand for reconsideration.

                                   I. BACKGROUND

         [¶2] Bonner and Emerson were married on November 30, 1985. In 2011,

Bonner instituted divorce proceedings and, after a protracted period of litigation,

the parties engaged in a judicial settlement conference with Judge Kennedy on

November 30, 2012. At the conclusion of that conference, the parties informed the
2

court that they had reached a settlement, and placed the agreement on the record.

During the next four months, the parties attempted to draft a complete divorce

judgment that reflected their agreement, but were unable to do so. Nonetheless,

with the agreement of the parties, Judge Kennedy issued a judgment on March 29,

2013, that he referred to in a separate order as “a partial final judgment divorcing

the parties and resolving all non-disputed issues . . . reserving [a] disputed issue for

future decision.” As will be discussed below, the bifurcation of the judgment and

the reservation of the disputed issue have created complications for the parties and

for us.

          [¶3] Paragraph 10 of the judgment dated March 29, 2013, states:

          This Judgment provides that certain specified accounts in the name of
          either party shall be equally divided. Said division shall be
          accomplished by an equal division between the parties of each asset
          held in said account as of the date of this Judgment, to the extent that
          such division is feasible, so that both parties shall receive a
          comparable composition of assets and a comparable basis therein. To
          the extent that the dollar values in any Raymond James account
          required to be divided herein changes due to market conditions, the
          parties shall divide the assets of said account in the same proportion
          as specified herein.

(Emphasis added.)        In addition, paragraph 12(b) of the judgment governs the

payment of tax on certain stock options:
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        Plaintiff’s share of the assets described in paragraphs 5(h),1 5(n), and
        5(o)2 shall be payable promptly upon Defendant’s exercise and
        liquidation thereof and the amount payable to Plaintiff shall be
        one-half of the value received by Defendant, net any Federal and
        State tax liability created by said receipt, including but not limited to
        any tax liability which may previously have been incurred. The
        parties shall equally share in the payment of any Federal or State tax
        when incurred. Any equalization payment shall be made promptly.

(Emphasis added.)

        [¶4] On June 13, 2013, before the court issued an order resolving the

remaining disputes between the parties, Bonner filed a motion for post-judgment

relief pursuant to M.R. Civ. P. 120, seeking, inter alia, division of the increase in

value of a specific Raymond James investment account. The divorce judgment had

awarded $43,159 from that account to Bonner and the remaining $97,084 to

Emerson, resulting in a thirty-one percent share to Bonner and a sixty-nine percent

share to Emerson. Bonner alleged that between November 30, 2012, and the date

the account was divided, the account increased in value by $21,098. Bonner

sought equal division of the increase, arguing that result was required by

paragraph 10 of the divorce judgment.

   1
      The 2013 divorce judgment did not include a paragraph 5(h). The remaining dispute between the
parties concerned, in part, the identification and division of the property that was to be included in that
paragraph. The contents of 5(h), along with other issues in dispute at the time of the 2013 divorce
judgment, were ultimately resolved by the parties and incorporated into the amended judgment.
   2
      Paragraph 5 lists property that was awarded to Bonner. Paragraph 5(n) states: “One-half of the
vested portion of the UBS Investment account in the name of Defendant (Aetna shares of common stock
and cash) as of 1/1/13.” Paragraph 5(o) states: “One-half of the vested portion, if any, of Aetna Deferred
Compensation in the name of Defendant as of 1/1/13.”
4

      [¶5] Emerson filed a document that comprised both a timely opposition to

Bonner’s motion, asserting that the division of the increase in value should be

proportionate to the underlying division, and his own post-judgment motion

pursuant to M.R. Civ. P. 120, seeking enforcement based on proportionate

division. Bonner filed an objection to Emerson’s motion. Thereafter, the court

held two conferences with counsel and, at the conclusion of the September 24,

2013, conference, ordered that the motions be set for hearing within thirty days.

The notice of hearing issued as a result of that order set the hearing and notified the

parties that all outstanding disputes would be addressed at the hearing.

      [¶6] On November 14, 2013, Bonner filed a second post-judgment motion,

seeking to enforce Emerson’s compliance with portions of the divorce judgment

that governed the payment of tax on certain stock options. Bonner argued that her

proceeds from sale of the stock options should not be reduced by the taxes the

parties had already paid on the stock as a result of their jointly filed 2012 tax

return. Emerson filed an opposition to the motion.

      [¶7] At the December 6, 2013, hearing, the parties reported to the court that

they had finally resolved the issues that had still been disputed at the time the court

issued its initial iteration of the divorce judgment. Because they had not, however,

resolved the disputes outlined in their post-judgment motions, they presented

arguments addressing how the increase in value of the Raymond James investment
                                                                                   5

account and the allocation of taxes on the stock options should be divided in light

of the language of the March 29, 2013, judgment.

      [¶8] On January 24, 2014, the court issued a decision on the motions. In

addressing the language in paragraph 12(b), the court stated that it had “learned”

that transactions related to stock options may result in two separate taxable events.

The court then found that, although the language of paragraph 12(b) was not

ambiguous, the parties had understood the tax implications of the language

differently. Although there was no motion for relief from the judgment pending,

see M.R. Civ. P. 60(b), the court employed “the applicable body of law relating to

a Rule 60(b) motion,” denied the parties’ competing motions to enforce, and

granted “[Bonner’s] Motion to Alter or Amend and [Emerson’s] Motion to

Amend.” Through that order, and in the “amended final” divorce judgment it

issued the same day, the court amended paragraph 12(b) of the original divorce

judgment to create two formulas for stock-sale dispositions, one for 2013 and one

for 2014 and forward.      In addition, “[r]ecognizing that this results in a net

reduction in the payout to Ms. Bonner [by] $90,000,” the court then amended

paragraph 10, thereby requiring the parties to equally divide the increase in value

of the Raymond James investment account. Emerson timely appealed and Bonner

cross-appealed.
6

                                II. DISCUSSION

      [¶9] Emerson challenges the court’s reliance on Rule 60(b) to amend the

judgment, given that neither he nor Bonner ever requested that the court amend the

judgment, reopen the evidence, or provide any other form of relief pursuant to

Rule 60(b). We review a trial court’s determination of its authority de novo.

Jackson v. MacLeod, 2014 ME 110, ¶ 19, 100 A.3d 484.

      [¶10] “In the absence of statutory authorization to modify a judgment

dividing marital property, the courts are without jurisdiction to do so.” Wardwell

v. Wardwell, 458 A.2d 750, 752 (Me. 1983).           See also Lewin v. Skehan,

2012 ME 31, ¶ 26, 39 A.3d 58 (“[C]ourts generally do not have authority to

modify a judgment’s division of marital property or marital debt.”); Merrill v.

Merrill, 449 A.2d 1120, 1124 (Me. 1982). A Rule 60(b) motion does allow a trial

court to modify a divorce judgment for the following reasons:

       (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
      discovered evidence which by due diligence could not have been
      discovered in time to move for a new trial under Rule 59(b); (3) fraud
      (whether heretofore denominated intrinsic or extrinsic),
      misrepresentation, or other misconduct of an adverse party; (4) the
      judgment is void; (5) the judgment has been satisfied, released, or
      discharged, or a prior judgment upon which it is based has been
      reversed or otherwise vacated, or it is no longer equitable that the
      judgment should have prospective application; or (6) any other reason
      justifying relief from the operation of the judgment.
                                                                                    7

M.R. Civ. P. 60(b). To obtain Rule 60(b) relief, however, a party must invoke

Rule 60(b) and allege facts giving rise to one of Rule 60(b)’s specific

requirements. Wardwell, 458 A.2d at 752-53.

      [¶11] In her first post-judgment motion, Bonner relied on Rule 120 to

request enforcement of the judgment, claiming that the “plain language” of the

divorce judgment required the increase of the Raymond James investment account

to be divided equally. Emerson’s cross post-judgment motion, which also relied

on Rule 120 to request enforcement of the judgment, asserted that the division of

the increase in value should reflect the proportionate distribution of the account.

Finally, in her second post-judgment motion, Bonner again relied on Rule 120 to

request enforcement of the March 29, 2013, judgment.          Neither party filed a

motion asking that the court change the judgment, and neither party filed a motion

that could reasonably be interpreted as requesting relief pursuant to Rule 60(b).

      [¶12] A party’s motion to enforce a divorce judgment does not give the

court the authority to amend or modify the division of marital property in that

judgment. Wardwell, 458 A.2d at 752. “If the divorce judgment is ambiguous, the

court has the inherent and continuing authority to construe and clarify its judgment,

but it cannot under the guise of a clarification order make any material change that

will modify the property division provided by the original judgment.” Greenwood

v. Greenwood, 2000 ME 37, ¶ 9, 746 A.2d 358 (quotation marks omitted) (citation
8

omitted). Whether the court had the authority to do what it did, therefore, depends

on whether it clarified, enforced, or amended the judgment.

      [¶13]    In order to determine whether the court clarified, enforced, or

amended the judgment, we must first determine whether the judgment is

ambiguous, and therefore in need of clarification, and must interpret the judgment.

“We review de novo whether a provision in a divorce judgment is reasonably

susceptible to different interpretations and therefore ambiguous.” Ramsdell v.

Worden, 2011 ME 55, ¶ 17, 17 A.3d 1224. An ambiguous judgment is one that has

at least two reasonable interpretations of the language. See Blanchard v. Sawyer,

2001 ME 18, ¶ 6, 769 A.2d 841; Hughes v. Morin, 2000 ME 135, ¶ 9, 755 A.2d

513. “When a judgment is unambiguous, it must be enforced in accordance with

the plain meaning of the language in the judgment.” Burnell v. Burnell, 2012 ME

24, ¶ 15, 40 A.3d 390 (quotation marks omitted). With these standards in mind,

we review the language of the court’s March 29, 2013, divorce judgment in order

to determine whether it is “susceptible” to different, reasonable interpretations.

A.    Increase in Value of Raymond James Account

      [¶14] Paragraph 10 discusses two groups of accounts—one group whose

value is to be “equally divided,” and one group whose value is divided in some

other manner. Any increase in value in the second group of accounts occurring

before the actual division is to be divided “in the same proportion as specified
                                                                                 9

herein.” Contrary to Bonner’s assertion, the paragraph’s language cannot be read

to require that, with regard to those accounts that were not to be divided equally,

any increase in value should be divided equally.

      [¶15] The plain language of paragraph 10 requires that the increased value

of the Raymond James account at issue in the parties’ cross motions for

enforcement be divided between the parties in the ratio stated in the judgment:

thirty-one percent to Bonner and sixty-nine percent to Emerson. Because the

language is unambiguous, the court was required to enforce its plain meaning. It

erred in doing otherwise and, therefore, we vacate the amended judgment on this

ground and remand for the court to reconsider the parties’ post-judgment motions

relating to paragraph 10 of the 2013 divorce judgment.

B.    Stock Options

      [¶16]   In her second post-judgment motion, Bonner asked the court to

enforce paragraph 12(b) of its divorce judgment as it applied to certain stock

transactions. In his response to that motion, during the hearing on the motion, and

again to us, Emerson has argued that the plain language of paragraph 12(b) reduces

Bonner’s portion of the proceeds resulting from the sale of certain stock by both

the taxes paid by Bonner and Emerson in their 2012 jointly filed tax return and the

taxes incurred in the year of the sale. We agree with this premise, but the result

Emerson hopes for does not follow.
10

      [¶17] The plain language of paragraph 12(b) establishes that Bonner’s share

of the accounts described in paragraphs 5(n) and 5(o) is one-half of the value of the

accounts, less her share—one-half—of any taxes that resulted from the vesting and

the liquidation of those accounts.     For these accounts, the first taxable event

occurred in 2012, when Emerson’s interest in the stock vested. That event resulted

in compensation to Emerson that was taxed to the parties as income. Because the

parties filed a joint tax return in 2012, they both paid the tax imposed at that time.

The second taxable event occurred in 2013, when Emerson—now divorced—sold

the stock and realized a capital gain. Emerson paid the entire capital gains tax that

resulted from that event, and Bonner must pay her share—one-half—by having her

proceeds reduced by one-half of the capital gains tax paid by Emerson.

      [¶18] Emerson is correct when he argues that the language “including but

not limited to any tax liability which may previously have been incurred” reduces

Bonner’s share by both the capital gains taxes he paid on the sale of the stocks in

2013 and the previously incurred and paid income taxes from 2012 when the stock

options vested.      He is incorrect, however, in reading the language of

paragraph 12(b) in a manner that requires Bonner to pay the same tax twice.

      [¶19] Emerson’s interpretation of paragraph 12(b) is not reasonable because

it directly contradicts paragraph 12(b)’s language that the “parties shall equally

share in the payment of any Federal or State tax when incurred.” For the property
                                                                                 11

listed in paragraphs 5(n) and 5(o), Bonner already paid her share of the 2012

income tax. Using Emerson’s interpretation, Bonner’s share of the marital asset

would be reduced a second time by taxes the parties already paid jointly,

effectively forcing her to pay the entirety of the compensation portion of the

income taxes on the stock options.

      [¶20]   Because the language of paragraph 12(b) of the 2013 divorce

judgment is not ambiguous, and because the court amended paragraph 12(b)

without the authority to do so, we must vacate the amended judgment and remand

for the court to reconsider Bonner’s motion to enforce the plain language of

paragraph 12(b) of the 2013 judgment.

      [¶21] On remand, the court must interpret the 2013 versions of paragraph 10

and paragraph 12(b) in deciding the parties’ post-judgment motions. Because the

amended judgment contains improper changes to paragraphs 10 and 12(b), it has

been vacated by this opinion. Nonetheless, the March 29, 2013, divorce judgment

specifically left some matters undecided, and the court will therefore have to issue

a new final judgment. Provisions in the vacated judgment that addressed those

remaining disputes, such as paragraph 5(h), and were based on the parties’

agreements, should be included in the amended judgment.

      [¶22]   This divorce without children involved a couple with significant

assets and complicated financial properties. Before and after their “settlement,”
12

the parties flooded the trial court with voluminous filings and frequent requests for

conferences and rulings. Given the limited time and resources available to the

District Court, the prudent course of action would have been for the parties or the

court to request that the case be transferred to the Business and Consumer Docket.

On remand, we suggest that such a transfer be considered.

        The entry is:

                           Judgment vacated. Remanded to the District Court
                           for further proceedings consistent with this
                           opinion.



On the briefs:

        David S. Abramson, Esq., and Jonathan M. Dunitz, Esq., Verrill
        Dana, LLP, for appellant Jeff D. Emerson

        Ronald P. Lebel, Esq., Skelton, Taintor & Abbott, Auburn, for
        appellee Patricia E. Bonner


At oral argument:

        Jonathan M. Dunitz, Esq., for appellant Jeff D. Emerson

        Ronald P. Lebel, Esq., for appellee Patricia E. Bonner



West Bath District Court docket number FM-2011-314
FOR CLERK REFERENCE ONLY
