The opinion
MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 115
Docket: Cum-17-371
Submitted
On Briefs: January 11, 2018
Decided: August 14, 2018
Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
MICHELLE L. (GEORGE) SULLIVAN
v.
WILLIAM A. GEORGE
HJELM, J.
[¶1] Michelle L. (George) Sullivan appeals from a divorce judgment
entered by the District Court (Portland, J. French, J.). She contends that the
court abused its discretion by ordering, sua sponte, a downward deviation of
William A. George’s child support obligation from the amount prescribed by the
guidelines, by ordering William to pay spousal support in an amount that
Michelle asserts is insufficient in duration and amount, and by declining to
award attorney fees beyond those provided through an interim order. We
vacate the court’s child support order and remand for entry of a child support
order pursuant to the guidelines, but we affirm the judgment in all other
respects.
2
I. BACKGROUND
[¶2] The following facts, which are supported by the record, are drawn
from the divorce judgment. Harper v. Harper, 2017 ME 171, ¶ 2, 169 A.3d 385.
[¶3] Michelle and William were married in 1995 and have three
children—at the time of the hearing, one was an adult and two were minors.1
In early 2016, Michelle commenced this divorce action. At the two-day final
hearing held in May of 2017, the parties stipulated to some parenting issues
and to the distribution of most of the real property and the valuation of some
of the personal property and debt. The contested issues included the amount
of the parties’ incomes for purposes of determining child support, spousal
support, and attorney fees.2
[¶4] In the divorce judgment issued in July of 2017, the court found that
the parties had agreed that if they started a family, Michelle would stay at home
with the children. Michelle is a physical therapist who has worked generally on
a per diem basis, although her license has expired. She is also a certified Pilates
instructor. Following the birth of the parties’ first child in 1997, Michelle
1 The middle child was to begin his senior year in high school in 2017.
2 The contested issues also included the remaining parental rights and responsibilities, and the
distribution and valuation of the some of the property and debt. The court’s adjudication of those
matters is not at issue on appeal.
3
worked as a physical therapist intermittently, and when she did so, her
employment was less than full-time. Her most recent employment, which was
in 20163 and paid her roughly $45 per hour, ended after only two weeks
because her training was not current.
[¶5] The court fixed Michelle’s current annual imputed employment
income at $14,040, based on an hourly wage of $9 for 30 hours per week. The
court declined to attribute income to Michelle based on full-time employment
because she will be required to intern or volunteer for at least 1,000 hours to
qualify as an independent practitioner in a specialized field that will combine
her vocational goals as a Pilates instructor and physical therapist. The court
found that Michelle’s annual living expenses are nearly $125,000.4
[¶6] William is a physician and is the founder and current one-third
owner of a medical practice. He earns $335,000 annually and incurs annual
living expenses totaling just over $100,000. William lives with a domestic
partner who earns $37,000 per year and contributes toward the monthly
household expenses.
3 The evidence indicated that before her short period of employment in 2016, Michelle had not
been employed at all since at least 2010.
4 The record indicates that the expenses claimed by Michelle include, among others, the monthly
mortgage payments for the formerly marital residence that the parties agreed would be awarded to
her, a significant amount for prescriptions, and expenses related to the children.
4
[¶7] Pursuant to the parties’ agreement, the court ordered that the
children would live primarily with Michelle with rights of contact awarded to
William. The court calculated the amount of weekly child support that William
would be required to pay pursuant to the guidelines, see 19-A M.R.S. § 2006
(2016),5 which was $626 for two children and $444 for the youngest child after
William’s obligation to pay support for the middle child ends, see supra n.1.
Then, even though neither party requested that the court depart from the child
support guideline amounts, the court ordered a downward deviation from the
guidelines on the basis that “the support guidelines would be inequitable or
unjust in consideration of the interrelation of the total support obligation[,]
. . . the division of property[,] and an award of spousal support[,] as well as
available income and financial contribution of [William’s] domestic associate.”
For those stated reasons, the court reduced William’s weekly support
obligation for two children from $626 to $550, and from $444 to $400 for one
child.
[¶8] The court’s division of the marital estate resulted in a net
distribution of assets and liabilities that was nearly equal.
5 We cite to the 2016 version of 19-A M.R.S. § 2006 because the statute was amended after the
divorce judgment was entered in July of 2017. See P.L. 2017, ch. 30, §§ 4-10 (effective Nov. 1, 2017).
The amendments do not bear on the issues presented here.
5
[¶9] The court ordered William to pay general spousal support of $3,600
per month. In addition, the court awarded Michelle monthly transitional
support of $3,600 for thirty months “to allow for Michelle’s reentry in the
workforce.” See infra n.9. The court stated that the awards of general and
transitional spousal support resulted from its consideration of the factors
contained in 19-A M.R.S. § 951-A(5) (2017), including the length of the parties’
marriage, Michelle’s contributions as a homemaker, and the employment and
income-producing history of each party. Finally, the court denied Michelle’s
request for attorney fees.
[¶10] Following entry of the judgment, Michelle filed a motion for further
findings and conclusions on several issues, including the amount of child
support, and a motion to amend the judgment. See M.R. Civ. P. 52(b), 59(e). The
court made several corrections within the child support orders without altering
the reduced amounts of child support that William was required to pay, but the
court otherwise denied the motions, explaining that the judgment articulated
the factual and legal bases for its determinations. Michelle filed a timely notice
of appeal. See 14 M.R.S. § 1901(1) (2017); 19-A M.R.S. § 104 (2017); M.R.
App. P. 2B(c).
6
II. DISCUSSION
[¶11] Michelle contends that the court erred by awarding an insufficient
amount of spousal support and by ordering a downward deviation of child
support.6 Because we conclude that the court’s reasoning for the downward
deviation of child support is not supported by the record, we focus our
discussion on that issue.
[¶12] We review a deviation from the statutorily presumptive child
support guidelines “for an abuse of discretion, and, absent a violation of a
positive rule of law, we will overturn the trial court’s decision only if it results
in a plain and unmistakable injustice, so apparent that it is instantly visible
without argument.” Dep’t of Human Servs. v. Monty, 2000 ME 96, ¶ 10, 750 A.2d
1276 (quotation marks omitted).
[¶13] A determination of whether a court abused its discretion involves
a three-part analysis: (1) whether factual findings are “supported by the record
according to the clear error standard; (2) [whether] the court [understood] the
law applicable to its exercise of discretion; and (3) given all the facts and
6 Michelle also asserts that the court erred by declining to award her attorney fees, which totaled
nearly $50,000. In doing so, the court applied the correct legal principles and recognized salient
aspects of the record, such as the equal division of the marital estate and William’s previous payment
of $15,000 toward Michelle’s attorney fees pursuant to an interim order. Michelle’s challenge to this
aspect of the judgment is not persuasive, and we do not discuss it further. See Pearson v. Wendell,
2015 ME 136, ¶¶ 45, 47, 125 A.3d 1149.
7
applying the appropriate law, was the court’s weighing of the applicable facts
and choices within the bounds of reasonableness.” Pettinelli v. Yost,
2007 ME 121, ¶ 11, 930 A.2d 1074. “A fact-finding is clearly erroneous only if
there is no competent evidence in the record to support it.” Wandishin v.
Wandishin, 2009 ME 73, ¶ 14, 976 A.2d 949. Because Michelle filed a proper
motion for further factual findings on the child support order, M.R.
Civ. P. 52(b)—a motion that the court denied because it stated that it had
already articulated the basis for its determination—our review is confined to
the court’s explicit findings. Ehret v. Ehret, 2016 ME 43, ¶ 12, 135 A.3d 101.
[¶14] The fundamental step in determining the amount of a parent’s
child support obligation is to calculate that amount pursuant to the support
guidelines, which takes into account the number of children, the parents’
incomes, child care costs, a child’s extraordinary medical expenses, and the
costs of private health insurance. 19-A M.R.S. § 2006. “There is a rebuttable
presumption that the child support obligation derived from the child support
guidelines is the amount to be ordered, absent special circumstances or a
deviation from the guidelines . . . .” Sullivan v. Doe, 2014 ME 109, ¶ 25, 100 A.3d
171; see also 19-A M.R.S. § 2005 (2017). The court may deviate from that
presumptive amount upon a finding that that amount is “inequitable or unjust”
8
due to at least one of the considerations enumerated in the governing statute,
19-A M.R.S. § 2007(1), (3) (2017).
[¶15] Here, the presumptive child support amount, as calculated in the
child support worksheets, was $626 for two children and $444 when William
is obligated to pay for the benefit of only the youngest child. The court
determined sua sponte7 that a downward deviation from the presumptive
amount was justified, and the court accordingly reduced the amount to $550
per week for two children and $400 per week when only one child is eligible.
The amount of the reduction from the presumptive obligation is therefore $76
per week for two children ($3,952 annually) and $44 per week when the
support is for one child ($2,288 annually).
[¶16] The court explained that there were three reasons to warrant the
downward deviation:
The court finds that a child support order based on the support
guidelines would be inequitable or unjust in consideration of the
interrelation of the total support obligation established under the
support guidelines for child support, the division of property[,] and
an award of spousal support as well as available income and
7 Because neither party requested that the court deviate from the presumptive amount of child
support, the parties did not file written proposed findings that are otherwise required to explain why
“the presumptive amount would be inequitable or unjust.” 19-A M.R.S. § 2007(2) (2017). Further,
because Michelle did not request that the court order an upward deviation from the guideline
amount, we do not address the question of whether, if any departure from the child support
guidelines was appropriate, it should have been an increase.
9
financial contribution of [William’s] domestic associate. And so the
court believes that a downward deviation is appropriate.
These ostensible justifications for the downward deviation are derived from
the factors that a court may use for that purpose:
C. The interrelation of the total support obligation established
under the support guidelines for child support, the division of
property and an award of spousal support made in the same
proceeding for which a parental support obligation is being
determined;
. . . .
J. Available income and financial contributions of the domestic
associate or current spouse of each party.
Id. § 2007(3) (C), (J).
[¶17] In the abstract, the court’s legal analysis is faithful to the statutory
framework germane to the deviation analysis. The question presented here,
however, is whether—given the record in this case—the court erred by
invoking these grounds for a downward deviation. For the reasons noted
above, supra ¶ 13, we will not attribute to the court’s analysis any findings or
conclusions other than those explicitly articulated in its judgment. See Ehret,
2016 ME 43, ¶ 12, 135 A.3d 101. Therefore, we consider only the three grounds
identified by the court—the division of property, the financial contributions of
William’s domestic partner, and the award of spousal support—to determine if
10
the downward deviation was within the bounds of the court’s discretion. See
Monty, 2000 ME 96, ¶ 10, 750 A.2d 1276.
[¶18] First, the marital estate was divided predominately by agreement,
and virtually evenly, with Michelle and William each receiving a net value of
roughly $270,000. Because Michelle will not receive a greater value of net
marital assets than William, and because none of the court’s other findings
regarding the division of the marital estate justifies a departure from the
presumptive amount of child support, this consideration—either by itself or in
combination with the other facts cited by the court—does not support a
reduction of William’s child support obligation.
[¶19] Second, William’s domestic partner is employed in the medical
field, earns $37,000 annually, and contributes toward their joint living
expenses by paying for groceries and household supplies.8 Because William’s
living expenses are reduced because of his partner’s material support of the
household in which he lives, this factor also does not justify a reduction of
William’s obligation to support his children.
8 Although not stated in the judgment, the evidence reveals that the domestic partner spends
between $600 and $700 each month for groceries and supplies.
11
[¶20] Finally, we consider the award of spousal support as it bears on
the amount of child support. Contrary to Michelle’s direct challenge to the
amount of spousal support that William will be required to pay her, the court
did not abuse its discretion in determining the amount, duration, and types of
spousal support. See Haskell v. Haskell, 2017 ME 91, ¶ 16, 160 A.3d 1176
(reviewing a spousal support award for an abuse of discretion). Given the
court’s findings regarding the parties’ finances, however, the spousal support
ordered by the court—although not outside the bounds of its discretion—was
not favorable to Michelle. With support in the record, the court found that she
is presently capable of only part-time employment at a low wage—$9 per
hour—so that she can commit additional time to attain the practice-based
qualifications needed for full-time and more remunerative employment in the
future.9 Thus, Michelle’s earning capacity is very modest—$14,000 annually.
During the thirty-month period of transitional spousal support payments,
Michelle will receive $86,400 annually in combined general and transitional
9 As we note above, see supra ¶ 5, the court found that Michelle needs to perform at least 1,000
hours of work with a licensed therapist to attain the credentials needed for her to practice
independently. Michelle testified, however, that this requirement could take as much as 5,000 hours
and likely three to four years to complete, which would be beyond the period of transitional support
ultimately ordered by the court. In this context, we note that the award of spousal support, including
transitional support, is subject to future modification if a court were to determine “that justice
requires” such a change. 19-A M.R.S. § 951-A(4) (2017); see also, e.g., Marston v. Marston, 2016 ME
87, ¶¶ 7-9, 141 A.3d 1106; McAllister v. McAllister, 2011 ME 69, ¶¶ 11-13, 21 A.3d 1010.
12
spousal support, resulting in an annual total of approximately $100,000 from
imputed employment income and spousal support. This is significantly less
than the annual living expenses of $125,000 incurred by Michelle and the two
minor children, and the support order barely brings Michelle’s total receipts
above the amount of her expenses.
[¶21] In contrast, William earns nearly $335,000 per year and has annual
living expenses of just over $100,000, with some of those expenses being paid
by his domestic partner.
[¶22] As the court noted, the parties’ marriage was of significant
duration, and, by agreement of the parties, Michelle’s responsibilities within the
family included staying at home with the children as their primary caregiver,
thereby deemphasizing her professional development. See 19-A M.R.S.
§ 951-A(5).
[¶23] Particularly when the award of spousal support is viewed in a
more nuanced way that is appropriate for appellate review, see, e.g., Jandreau v.
LaChance, 2015 ME 66, ¶¶ 14-26, 116 A.3d 1273, this broad-stroke description
of some of the important factors germane to that award demonstrates that,
although the award is not so conservative that it rises to the level of error, the
award was not so beneficent toward Michelle that it could justify a reduction of
13
the statutorily presumptive amount of child support that William will be
required to pay. This is especially so when William did not even seek a
downward deviation.
[¶24] For these reasons, the record does not support the factors used by
the court for a downward deviation from William’s presumptive child support
obligation and does not support the court’s ultimate determination that the
presumptive amounts of child support as calculated pursuant to the guidelines
are “inequitable or unjust.” 19-A M.R.S. § 2007(1); accord Monty, 2000 ME 96,
¶ 10, 750 A.2d 1276 (“[W]e will overturn the trial court’s decision only if it
results in a plain and unmistakable injustice, so apparent that it is instantly
visible without argument.” (quotation marks omitted)). We therefore vacate
the child support order and remand for the court to enter a child support order
requiring that William pay child support in the amounts calculated pursuant to
the child support guidelines.10
10 In some cases where we have vacated certain financial aspects of a divorce judgment, we
authorized the court on remand to reconsider other aspects of the judgment that might be affected
by changes necessary to correct the original error. See, e.g., Mooar v. Greenleaf, 2018 ME 23, ¶¶ 8, 13,
179 A.3d 307; Dube v. Dube, 2016 ME 15, ¶¶ 1, 10-14, 131 A.3d 381; Thumith v. Thumith, 2013 ME
67, ¶ 15, 70 A.3d 1232. We do not do so here, however, because, for the reasons explained in the text,
the amount of spousal support awarded to Michelle cannot properly be reduced below the amount
prescribed in the judgment, even in response to the increase in court-ordered child support that
William will be required to pay.
14
The entry is:
Judgment as to the child support order vacated.
Judgment affirmed in all other respects.
Remanded for further proceedings consistent
with this opinion.
Gene R. Libby, Esq., and Tyler J. Smith, Esq., Libby O’Brien Kingsley & Champion,
LLC, Kennebunk, for appellant Michelle L. (George) Sullivan
Theodore H. Irwin, Jr., Esq., and Jacqueline R. Moss, Esq., Irwin Tardy & Morris,
Portland, for appellee William A. George
Portland District Court docket number FM-2016-52
FOR CLERK REFERENCE ONLY