The opinion
seecngeeiiannc ‘
STATE OF MAINE FILED AND ENTERED SUPERIOR COURT
SIPERING COURT
> PENOBSCOT, SS. Docket No. AP-98-67. __
JAH 2 § 2000 FEM- REM 1 [SS/aceo
ROBIN KAPLER,
Plaiatift/ Appau@SNOBSCOT COUNTY |
) . .
Vv. ORDER ON APPEAL
GEORGE KAPLER,
Defendant/ Appellant
Nee ee ee ee eee”
This matter is before the Court on Defendant's appeal of a District Court
divorce judgment.
FACTS
The District Court entered a divorce judgment for the parties on July 29, 1998.
The Court awarded physical custody of the parties’ minor children to Plaintiff and
D ordered Defendant to pay child support. Plaintiff resides in Newburgh, Maine, and
Defendant resides in St. Augustine, Florida. Defendant has the right to visit the
children with reasonable notice to Plaintiff but Defendant must absorb all
transportation costs incurred by his visitation with the children.
Defendant appeals the judgment, arguing that the District Court committed
the following: (1) an error in the computation of Defendant’s income for the
determination of child support; (2) failure to grant Defendant a deviation in his
child support obligation for transportation expenses to visit the children; (3) error in
the division of property; (4) that it was error to order Defendant to absorb the
mortgage on the marital home; (5) error in the Court’s refusal to allow Defendant to
_--admit evidence concerning Plaintiff’s refusal to move to Florida.
'
DISCUSSION
The District Court has broad discretion in determining matters concerning
divorce, including property division, alimony, custody and child support. See
Shirley v. Shirley, 482 A.2d 845, 847 (Me. 1984). A trial court that has evaluated and
weighed the evidence carefully is afforded great deference, and the divorce court's
decision will not be overturned, as long as there is rational or credible evidence in
the record to support the decision. See id. This Court reviews the findings of fact
and conclusions of law of the trial court for clear error. See Knowles v. Knowles
588 A.2d 315, 318 (Me. 1991).
Defendant challenges the District Court’s computation of his income because
the Court averaged Defendant’s income for the years 1994 through 1996 and did not
consider Defendant's reported income for 1997, which he alleged was significantly
less than the previous three years. Defendant contends that his income for 1994
through 1996 was unusually high because he received high profit disbursements
and repayment of loans to his corporations. The trial court, however, may consider
a party’s earning capacity rather than his present income in making a calculation of
child support. Foley v. Foley, 642 A.2d 1346, 1347 (Me. 1994). The trial court did not
abuse its discretion by disregarding Defendant’s alleged reduced income for 1997 and
relying solely on income of the immediately preceding years, especially as
Defendant's income derives from a business that he alone controls. The District
Court could clearly deduce from the evidence that Defendant has the same earning
capacity as before 1997.
> Defendant next contests the District Court’s failure to grant a deviation in his
child support obligations for his transportation expenses incurred by visiting his
children. “A party in a court action proposing deviation from the application of the
support guidelines shall provide the court with written proposed findings showing
that the application of the presumptive amount would be inequitable or unjust.”
19-A M.R.S.A. § 2007.2. Defendant did not propose a deviation for transportation
expenses to the trial court, and, therefore, may not now raise the matter on appeal.
As to the District Court’s property division, Defendant primarily disputes the
court’s award of a stock portfolio worth approximately $450,000 to Plaintiff. Judge
MacMichael properly held that the income earned on stock after the parties were
married, which resulted from Plaintiff's management of the stock, constitutes
> marital property. See Clum v. Graves, 1997 Me. 77; Harriman v. Harriman, 710 A.2d
923, 924-25 (Me. 1998).
Plaintiff owned the stock portfolio before the parties were married. The value
of the stock at the time of the marriage was approximately $110,000, and this amount
remains nonmarital property. Accordingly, the maximum amount of the stock that
could be considered marital property is $340,000. Even assuming, as the District
Court did, that this entire amount is marital property, the Court’s property
distribution is equitable for Defendant because he received a larger overall property
distribution than Plaintiff received.!
1. The record suggests that perhaps some of the increase in value of the stock may ‘have been
non-marital property, but the record is unclear as to exactly how much. Because the record
is not clear, this Court declines to address that issue. phase findings must be upheld unless
_--there is no competent evidence to support them. See Harmon v. Emerson, 425 A.2d 978. See also
> Martin v. Brown, 650 A.2d 937 (Me. 1994). .
3
Moreover, Defendant insists that the Court erred in computing the value of
his business, Hairstreak Development Corporation. Defendant maintains that the
value of Hairstreak at the time of the divorce was actually only $5,962, instead of
$683,000, as determined by the Court. Defendant’s argument lacks merit. The trial
court arrived at that higher amount by considering the value of 57 house lots owned
by Hairstreak, less liabilities. To disregard the value of 57 house lots owned by a real
estate development corporation would be inequitable and unjust. The District
Court had sufficient evidence to determine that the value of those properties, less
liabilities, was worth at least $683,000. The Court did not err in the valuation of
Hairstreak. Therefore, Defendant received a greater portion of the marital property
than Plaintiff, and, therefore, the distribution was equitable.
Defendant next argues that the District Court erred by ordering him to absorb
the mortgage of the marital home, which the Court awarded to Plaintiff. In light of
the fact that Defendant received a larger portion of the marital property than
Plaintiff received, the Court’s decision to require Defendant to pay the mortgage on
the marital home was fair and equitable.
Defendant contends that the District Court erred by refusing to admit
evidence of Plaintiff’s refusal to move to Florida with Defendant. The trial judge is
vested with the power to exclude evidence that is not relevant to the proceedings.
See ME. R. Evip. 402. Defendant has failed to demonstrate that evidence of Plaintiff's
refusal to move to Florida was relevant to the property distribution of the parties.
The District Court did not commit error in excluding such evidence.
The docket entry is:
Appeal DENIED. The judgment of the District Court is AFFIRMED
23 2000
Dated: ewer ’ Aled. and
Hon. Francis Marsano
JUSTICE, SUPERIOR COURT
Date Filed ___12/31/98 PENOBSCOT Docket No. AP-98-67
County
Action ___CIVIL-DISTRICT COURT APPEAL (DIVORCE) “ND?
Assigned to Justice Francis C. Marsano fos i
ROBIN KAPLER,
vs. . GEORGE KAPLERs | ..
wok
Plaintiff’s Attorney
Pelletier & Faircloth
43 Columbia Street
Bangor, Maine 04401
Defendant’s Attorney
Peter Anderson, Esq.
202 Exchange Street, Suite 200
Bangor, Maine 04401
By: Dawn Pelletier, Esq.
Date of
Entry
12/31/98 Appeal from District Court, District Three, Division of Western
Penobscot,
Newport, Maine. NEW-96-DV-49 The following papers
were received and filed:
WONKDUBWNHE
7 8 .
Complaint
Summons & Injunction
Acknowledgement of Service
Child Custody Affidavit
Statement Concerning Public Assistance
Answer & Counterclaim
Statement Concerning Public Assistance
Affidavit ,
Answer to Counterclaim
Notification of Discovery
. Notification of Discovery
Notification of Discovery
. Plaintiff's Financial Statement(in manilla envelope)
. Child Support Affidavit(in manilla envelope)
- Notification of Discovery
. Defendant's Financial Statement(in manilla envelope)
Defendant's Child Support Affidavit
. Plaintiff's Motion for Temporary Reltef
Request for Mediation
- Notice of Mediation
Mediation Report
Notice of Hearing
Motion to Continue
» Notification of Discovery
Motion to Compel
- Notification of Discovery
. Order on Motion (Hjelm, J.) (Certificate attached)
Notice of Pretrial Conference
- Motion to Continue