The opinion
STATE OF MAINE SUPERIOR COURT
HANCOCK, ss CIVIL ACTION
DOCKET NO. RE-01-001
PATRICK IRVING,
Plaintiff
ORDER ON PLAINTIFF’S
Vv. MOTION FOR CONTEMPT
PHYLLIS BROWN, DONALD L. GARBR
Defendant LAW LIBRARY
NOV 19 aR
The 2/28/02 decision in this partition action provides, in part:
Based on the above computations and findings, the court
concludes that the house which shall include the stove and --
refrigerator shall be set aside to plaintiff upon the following
conditions. The plaintiff shall pay the defendant the sum of
$3680.00 within sixty days as her share of the real estate.
It was undisputed at the 10/8/02 hearing on the plaintiffs motion for contempt that the
defendant had not yet vacated the house.
Since March, 2002, Officer Findlay from the Bucksport Police Department has, at
the request of the plaintiff's wife, conversed with the defendant about her leaving the
house. In July, 2002, after the defendant’s appeal of the 2/28/02 decision was dismissed
by the Law Court, the sum of $3680.00 was tendered by the plaintiff to the defendant
through their attorneys. See Pl.’s Exs. 1-2. In August, 2002, the plaintiff, through Officer
Findlay, advised the defendant that the $3680.00 was available.
The defendant argues that she never saw the checks, that the 2/28/02 decision
did not include a specific date by which she was required to leave the house, and that
the plaintiff did not give her sufficient time to move after the money was tendered.
These arguments are without merit. A reasonable reading of the 2/28/02 decision
provides that the defendant was required to vacate the premises when the plaintiff
tendered the amount due. In July, when the money was formally tendered by
plaintiff's attorney, the defendant refused to leave and required 60 days to move; that
60-day period expired last month. In early August, 2002, the defendant told the
Bucksport police officer that she would not accept the money from the plaintiff because
she could not vacate the house as quickly as the plaintiff desired. By that time, the
plaintiff’s request for immediate possession of the house was reasonable.
The defendant has lived in the house without paying rent since the 2/28/02
the house. The defendant's expenses for utilities and heat would have been incurred by
her in any location and did not in any way, on this record, benefit the plaintiff. The
court does not accept her testimony that she paid insurance.
The court has taken judicial notice of the Law Court docket sheet in HAN-02-190,
which outlines the defendant’s appeal of the 2/28/02 decision and the dismissal of that
appeal for lack of prosecution.!_ The court has considered the defendant’s demeanor
and her testimony, which the court rejects as not credible.
It is clear that the court’s decision of 2/28/02, which issued after a contested
hearing, meant nothing to the defendant. Her actions since 2/28/02 have been
intended to delay the plaintiff’s acquisition of the house. No credible reason has been
offered for the defendant's refusal to comply with the terms of the court’s decision.
The defendant is in contempt of the terms of the court’s decision dated 2/28/02
based on her failure to vacate the house after the tender of the amount due. The
1On the day of the hearing on the plaintiff’s motion for contempt, the defendant filed a motion
for relief from judgment.
defendant had the ability to comply with the terms of the court’s decision and refused
to comply. See Zink v. Zink, 687 A.2d 229, 232 (Me. 1996).
The defendant is sentenced to 5 days in the Hancock County Jail. Sentence is
stayed until 10/18/02 at 5:00 p.m. to give the defendant an opportunity to purge her
contempt by doing the following:
1. By 10/18/02 at 12:00 p.m., the defendant will vacate the house and real estate
that was the subject of the court order dated 2/28/02; all of her personal property will
be taken with her at that time;
2. The defendant wiil pay to the plaintiff the sum of $1200.00, which is rent of
$400.00 per month from 7/17/02 through 10/17/02;
3. The defendant will pay to the plaintiff the sum of $504.00 as attorney fees and
$106.15 as costs incurred in bringing this motion for contempt;
4. After deducting the amounts due to the plaintiff from the defendant, the
plaintiff owes the defendant $1869.85 from the original amount of $3680.00 ordered in
the 2/28/02 decision. The plaintiff will give a certified check for this amount to his
attorney by 10/17/02. His attorney will forward the check to the defendant’s attorney
immediately upon notice that the defendant has left the residence.
The attorney for the plaintiff will immediately inform the Hancock County
Superior Court clerk’s office if the defendant has not vacated the house by 12:00 p.m.
on 10/18/02.
The clerk is directed to incorporate shis order into the docket by reference.
Date: October 11, 2002
ancy Mills “
Justice, Superior Court FILED &
ENTERED
OCT © § 9292
SUPERIVUN COURT
HANCOCK COUNTY