MAINE SUPREME JUDICIAL COURT                                             Reporter of Decisions
Decision: 2019 ME 85
Docket:   Cum-18-490
Argued:   May 15, 2019
Decided:  May 30, 2019

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



                                       MARK C. KLEIN

                                               v.

                                JESSICA A. (DEMERS) KLEIN


JABAR, J.

         [¶1]     Mark C. Klein appeals from a judgment of the District Court

(Portland, Cashman, J.) granting a divorce from Jessica A. Demers and setting

parental rights and responsibilities between them as to their minor child and

from the denial of his motion for further findings of fact. We vacate the

judgment in part and remand.

                                      I. BACKGROUND

         [¶2]     Klein and Demers were married on January 2, 2015, and in

September of that year, Demers gave birth to the parties’ daughter. Although

Klein and Demers initially worked together to care for their daughter, their

relationship began to deteriorate over the next year, culminating in Klein
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moving out of the family home and Demers taking the child out of the state but

later returning.

        [¶3] In late 2016, Klein filed a complaint for divorce against Demers, and

after several failed mediations, the court held a three-day hearing solely on the

issue of parental rights and responsibilities.1 On October 17, 2018, the court

issued its judgment, awarding Demers primary residence of the child and

allocating parental rights and responsibilities between Klein and Demers as

“generally . . . shared . . . subject to the allocation of final decision making to

[Demers].” The court also created a phased schedule for Klein’s contact with

the child that increased his visitation with the child over four distinct periods

of time, culminating in one four-hour period each week combined with

overnights every other weekend.

        [¶4] Klein filed a motion for reconsideration, see M.R. Civ. P. 59(e), and a

motion for further findings of fact, see M.R. Civ. P. 52(b). The court denied both

motions. Klein timely appealed. See M.R. App. P. 2B(c)(1); 14 M.R.S. § 1901

(2018); 19-A M.R.S. § 104 (2018).




    Prior to the hearing, Klein and Demers stipulated to all financial aspects of the divorce, including
    1

spousal support, property and debt division, and child support. Neither party challenges the
resulting portions of the judgment on appeal.
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                                II. DISCUSSION

      [¶5] Klein contends that the court abused its discretion by allocating final

decision-making authority to Demers and by placing limitations on his contact

with the child. We review an award of parental rights and responsibilities for

an abuse of discretion. See Dube v. Dube, 2016 ME 15, ¶ 5, 131 A.3d 381; Violette

v. Violette, 2015 ME 97, ¶ 30, 120 A.3d 667. We review the denial of Klein’s

motion for further findings for an abuse of discretion as well. See Mooar v.

Greenleaf, 2018 ME 23, ¶ 7, 179 A.3d 307.

      [¶6] In making factual findings, a court “is free to accept or reject the

testimony of individual witnesses in whole or in part, and it is free to reject

testimony that is not contradicted if it finds that testimony incredible.” In re

Marpheen C., 2002 ME 170, ¶ 5, 812 A.2d 972. In doing so, the court “must

consider all properly admitted evidence” and then apply “its independent

judgment to that evidence in reaching its findings and conclusions.” Id. In the

normal course, we may “assume that [the court] found all facts necessary to

support its judgment.” Mooar, 2018 ME 23, ¶ 7, 179 A.3d 307. However, when,

like here, a motion for further findings has been filed and denied, “we cannot

infer findings from the evidence in the record.” Douglas v. Douglas, 2012 ME

67, ¶ 27, 43 A.3d 965. Instead, the court’s “judgment [must be] supported by
4

express factual findings that are based on record evidence, are sufficient to

support the result, and are sufficient to inform the parties and any reviewing

court of the basis for the decision.” Mooar, 2018 ME 23, ¶ 7, 179 A.3d 307

(quotation marks omitted).

      [¶7] In this case, the court’s judgment does not contain the express

factual findings that are necessary to support its conclusion that allocation of

final decision-making authority to Demers and limitations on Klein’s contact is

in the best interest of the child. Although the court described the testimony of

the parties and witnesses at length, it did not state what testimony it believed

or what findings it made on the basis of that testimony. See, e.g., In re Brandon

D., 2004 ME 98, ¶ 4, 854 A.2d 228 (“Many of the statements . . . begin with the

phrase ‘the witness testified that,’ but a few sentences contain the phrase ‘the

court concludes’ or ‘the court finds. . . . [F]rom the context, it appears that the

court is summarizing testimony.’”); In re Marpheen C., 2002 ME 170, ¶ 5, 812

A.2d 972 (“A summary of individual witness’s testimony is not necessary or

even desirable as part of [the] fact-finding process.”). As a result, we are unable

to engage in effective appellate review of the contested issues.

      [¶8] Because the court’s judgment, despite discussing the evidence at

length, does not contain adequate findings to support its result, the court
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abused its discretion by denying Klein’s motion for further findings of fact. See

Ehret v. Ehret, 2016 ME 43, ¶ 9, 135 A.3d 101 (“[I]f the judgment does not

include specific findings that are sufficient to support the result, appellate

review is impossible and the order denying findings must be vacated.”). We

therefore vacate that portion of the court’s judgment bearing on final

decision-making authority and Klein’s contact with the child, and remand for

the court to make further factual findings based upon the substantial record

already before it and to enter a new or renewed judgment on final

decision-making authority and Klein’s contact with the child.2                               See M.R.

Civ. P. 52(b) (in acting on a motion for further findings of fact, the court “may

amend the judgment if appropriate”).


   2 In the interest of judicial economy and finality, we also briefly address Klein’s additional

contentions. First, a judgment setting the parental rights and responsibilities between two parents
does not constitute a state intrusion into the fundamental right to parent, nor does it deny either
parent equal protection of that right. See Mills v. Fleming, 2017 ME 144, ¶ 7, 166 A.3d 1012 (stating
that a “judgment respecting parental rights and responsibilities does not implicate a parent’s
fundamental right to parent unless it . . . directly and substantially limits the parent’s decision-making
authority and delegates an aspect of parental rights and responsibilities to a third party”);
Guardianship of Chamberlain, 2015 ME 76, ¶ 26, 118 A.3d 229 (explaining that a standard of proof of
a preponderance of the evidence is applicable because an action for divorce or parental rights and
responsibilities seeks to “balanc[e] the rights of two individuals who have equal rights in parenting”);
Jacobs v. Jacobs, 507 A.2d 596, 599 (Me. 1986) (stating that “there is no need to provide special
protection for the familial relation interest of one parent against the other who has the identical
interest”).

      Second, a court is authorized to award a combination of shared and allocated parental rights
by granting one parent explicit final decision-making authority when necessary for the best interest
of a child. See 19-A M.R.S. §§ 1501(1), 1653(2)(D)(1) (2018); Sheikh v. Haji, 2011 ME 117, ¶ 15, 32
A.3d 1065 (“[T]he trial court [did not] abuse its discretion in awarding final decision-making
authority to [one parent] in the event that the [parents] disagree about significant decisions affecting
the child[].”).
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        The entry is:

                           Order denying motion for further findings with
                           regard to allocation of final decision-making
                           authority and rights of contact vacated. Divorce
                           judgment vacated only as to allocation of final
                           decision-making authority and rights of contact.
                           Remainder of judgment affirmed. Remanded for
                           further proceedings consistent with this opinion.



Daniel D. Feldman, Esq. (orally), Hallett Whipple Weyrens, Portland, for
appellant Mark C. Klein

Christopher R. Causey, Esq. (orally), Bourque Clegg Causey & Morin LLC,
Sanford, for appellee Jessica A. (Demers) Klein


Portland District Court docket number FM-2016-735
FOR CLERK REFERENCE ONLY
