MAINE SUPREME JUDICIAL COURT                                          Reporter of Decisions
Decision:   2015 ME 9
Docket:     Cum-14-218
Submitted
 On Briefs: December 18, 2014
Decided:    January 29, 2015

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



                           CHRISTOPHER MacMAHON

                                          v.

                              ELIZABETH TINKHAM

SAUFLEY, C.J.

         [¶1] Christopher MacMahon appeals from a judgment entered in the District

Court (Portland, Eggert, J.) denying his motion for contempt against Elizabeth

Tinkham for failing to pay child support for the parties’ daughters. MacMahon

primarily argues that the record compels a finding of contempt because it

demonstrates that Tinkham failed to comply with a valid child support order to the

fullest extent possible and that she has the present ability to pay. We affirm the

judgment.

                                 I. BACKGROUND

         [¶2] Christopher MacMahon and Elizabeth Tinkham are former spouses

who have two daughters together, ages seven and nine at the time of hearing.
2

Tinkham is the mother of four other children—two adolescent sons from previous

relationships and two younger children from her current relationship.

      [¶3] MacMahon and Tinkham divorced in October 2009. MacMahon was

eventually awarded primary physical residence of the girls, with Tinkham to have

primary physical residence during school summer vacations. When MacMahon

was granted primary physical residence, no child support was awarded to either

party. In October 2011, MacMahon moved for an order requiring Tinkham to pay

child support when he became aware that Tinkham had significantly more income

than she had previously reported. One year later, the court entered a modified

judgment of parental rights and responsibilities requiring Tinkham to pay child

support to MacMahon.         In calculating child support, the court imputed

minimum-wage income of $15,600 to MacMahon, who had not worked since

2010, when he sustained physical and mental injuries from a serious car accident.

The court determined Tinkham’s income to be $35,000 based on Tinkham’s

business income from 2011 and her projected business sales for 2012. In the

modified judgment, the court determined that a downward deviation from the child

support guidelines was appropriate “[d]ue to the time and expense involved with

the children on [Tinkham’s] behalf.” It ultimately ordered Tinkham to pay $103
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per week in child support, adjusted downward from the child support worksheet

calculation of $133.12 per week, effective September 21, 2012.1

        [¶4] In December 2013, MacMahon filed a motion for contempt pursuant to

M.R. Civ. P. 66(d), alleging that Tinkham “wilfully failed and refused to pay the

ordered child support for her daughters.” After a hearing, the court found the

following facts, which are viewed in the light most favorable to support the trial

court’s judgment. See Pratt v. Spaulding, 2003 ME 56, ¶ 10, 822 A.2d 1183.

        [¶5]     Tinkham currently lives with her boyfriend in Guilford.                              The

undisputed evidence showed that she recently purchased, in a foreclosure

proceeding, the home they are living in for approximately $16,000, which she

borrowed from her grandmother. She and her boyfriend have six children living

with them; they have two biological children together, and each brought two

biological children from previous relationships into the home.

        [¶6] The total support obligation that Tinkham owes from the effective date

of the child support order, September 21, 2012, to March 28, 2014, is $8,137.

Tinkham has paid a total of $750 directly to MacMahon. The Department of



   1
      The court initially inadvertently reversed the parties’ incomes on the child support worksheet in
calculating support, treating MacMahon as having $35,000 in income and Tinkham as having $15,600.
As a result, the court ordered Tinkham to pay $50 per week in child support for the children, adjusted
downward from $70.06 per week, effective as of September 21, 2012. In July 2013, MacMahon moved
to correct the court’s clerical error. Thereafter, the court corrected the error and recalculated Tinkham’s
support obligation to $103 per week.
4

Health and Human Services, exercising its enforcement powers, seized $235.94

from one of Tinkham’s bank accounts.2 Thus, Tinkham was in arrears at the time

of the hearing in the amount of $7,151.06.

        [¶7] Tinkham runs her own business making replacement covers for toddler

car seats. At the hearing, the court did not have before it Tinkham’s net income for

2013 but found that her business was not doing as well as the year before.3

Tinkham plans to sell her business to her brother for a $2,500 down payment and

$500 monthly payments for three years.                  The court found that Tinkham had

sufficient discretionary income to spend approximately $3,000 over the past twelve

to fifteen months at Dunkin’ Donuts and Starbucks and to spend some money for

“X-box type entertainment.”                The court found it unclear whether these

expenditures were for Tinkham’s benefit or for the “benefit of the six children

living in her household full-time.”




    2
       Notably, the Department seized income from Tinkham’s Amazon account, which at the time of
hearing had not since been used to collect any of Tinkham’s business income. Instead, Tinkham’s
business proceeds are collected through a PayPal account in her boyfriend’s name, making collection
difficult. Tinkham also testified that she put the home purchased with her grandmother’s funds into her
boyfriend’s name.
    3
     Although Tinkham’s gross income from her business has been significant at times, reaching as much
as $93,000, her net income is substantially less—approximately between $29,000 and $35,000.
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        [¶8]     The court ultimately denied MacMahon’s motion for contempt,4

determining that MacMahon had not met his burden of proving by clear and

convincing evidence that Tinkham had the present ability to pay child support and

was wilfully avoiding her obligation.5 The court also denied MacMahon’s request

for attorney fees and ordered both parties to pay their respective attorney fees.

After the court denied MacMahon’s motion for partial reconsideration, he timely

appealed pursuant to 19-A M.R.S. § 104 (2014) and M.R. App. P. 2(b)(3).

                                          II. DISCUSSION

        [¶9]     We are unpersuaded by MacMahon’s argument that the court

improperly denied him his attorney fees. See Largay v. Largay, 2000 ME 108,

¶¶ 16, 17, 752 A.2d 194. We focus on MacMahon’s contention that the record in

this matter compels us to vacate the trial court’s order and remand the case with

instructions to hold Tinkham in contempt for failing or refusing to comply with her

child support obligation.


   4
     The docket entries in this matter mistakenly indicate that MacMahon’s motion for contempt was
granted. We direct the clerk’s office to correct this clerical error.
   5
      After denying MacMahon’s motion for contempt, the court treated it as a motion to enforce and
ordered Tinkham to “continue payment of child support as ordered or at least $50 per week toward the
obligation.” The court also ordered Tinkham to pay to MacMahon the amount of $2,500 from the down
payment for the sale of Tinkham’s business, when and if the sale occurs. MacMahon, however, had not
also filed a motion to enforce child support when he filed his motion for contempt. Thus, no motion to
enforce was pending before the court at the time of the order. MacMahon raises the issue of the court’s
authority to treat his motion for contempt as a motion to enforce in his statement of issues on appeal to us
but does not brief the issue. We decline to reach issues that are not briefed. Alley v. Alley, 2004 ME 8,
¶ 3, 840 A.2d 107.
6

      [¶10] We review “[t]he factual findings that form the basis for the trial

court’s decision regarding motions for contempt . . . for clear error,” Wrenn v.

Lewis, 2003 ME 29, ¶ 13, 818 A.2d 1005, and the ultimate “denial of a motion for

civil contempt for abuse of discretion.” Ames v. Ames, 2003 ME 60, ¶ 22, 822

A.2d 1201. Moreover, because MacMahon did not request further findings of fact

pursuant to M.R. Civ. P. 52, “we assume that the court made any necessary

subsidiary findings that are supported by competent evidence in the record.”

Efstathiou v. Efstathiou, 2009 ME 107, ¶ 10, 982 A.2d 339.

      [¶11] As the moving party, MacMahon had the burden of proof at trial to

demonstrate by clear and convincing evidence that Tinkham is presently able to

comply with the court’s child support order and that she has failed or refused to do

so. M.R. Civ. P. 66(d)(2)(D); Ames, 2003 ME 60, ¶ 22, 822 A.2d 1201. “[T]he

ability to . . . comply with a court order is not an all or nothing proposition”; rather,

“[a] person subject to court order must comply to the fullest extent possible,

regardless of whether such efforts result in compliance in whole or in part.”

Efstathiou, 2009 ME 107, ¶ 13, 982 A.2d 339 (quotation marks omitted). When,

as here, the party with the burden of proof at trial is challenging the denial of the

requested relief, to succeed on appeal, MacMahon has the very high burden of

demonstrating “that a contrary finding is compelled by the evidence.” Id. ¶ 10

(quotation marks omitted).
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      [¶12] Although there was evidence of Tinkham’s discretionary spending,

and her minimal effort to support her daughters was apparent, we cannot conclude

that the evidence compels a finding of contempt. The court, “as fact-finder and

sole arbiter of witness credibility, was free to selectively accept or reject portions

or all of [Tinkham’s] testimony.”          Id. ¶ 12.   Evidence in the record that

(1) Tinkham’s net income from her business was somewhere between $29,000 and

$35,000 per year; (2) she is supporting four other children; (3) she is living with

six children and her boyfriend in an 1860 farmhouse, which she purchased in a

foreclosure proceeding with $16,000 that she borrowed from her grandmother; and

(4) her business did not do as well as she had anticipated in 2013 was sufficient to

support the court’s determination that MacMahon had not proved contempt by

clear and convincing evidence.

      [¶13] Finally, we note that multiple judges and magistrates have addressed

this lengthy, contentious post-judgment divorce litigation.        In any additional

proceedings, this case should be specially assigned to a single trial judge.

      The entry is:

                      Judgment affirmed.
8

On the briefs:

        Dori F. Chadbourne, Esq., Chadbourne Law Offices, P.A., Portland, for
        appellant Christopher MacMahon

        Roderick H. Potter, Esq., Saco, for appellee Elizabeth Tinkham



Portland District Court docket number FM-2007-1246
FOR CLERK REFERENCE ONLY
