Opinion

Kapler v. Kapler

Court
Superior Court of Maine
Filed
Jan 25, 2000
Status
Unpublished
On the bench
Francis C. Marsano
Cited by
0 cases
Authority
More cited than 34.1%

The opinion

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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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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