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Tuell v. Nicholson

Supreme Judicial Court of Maine

October 30, 2014

ANTHONY J. TUELL
v.
JANICE I. NICHOLSON

Submitted on Briefs September 23, 2014.

Page 208

Robert C. Andrews, Esq., Portland, for appellant Janice Nicholson.

William M. Avantaggio, Esq., Damariscotta, for appellee Anthony J. Tuell.

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

OPINION

Page 209

HJELM, J.

[¶1] Janice I. Nicholson appeals from a post-judgment order entered by the District Court (Wiscasset, Ende, J.) denying her motion " to enforce and clarify" the judgment and ordering her to pay attorney fees as a sanction for filing that motion, which the court found to be frivolous. We affirm the judgment.

I. BACKGROUND

[¶2] Nicholson and Anthony J. Tuell, who are parents of a minor child, were divorced in 2006. The divorce judgment adopted their agreement to share parental rights and responsibilities, including shared primary physical residence of their child in Maine. In 2010, after Nicholson relocated to North Carolina to start a new job, she and Tuell litigated the issue of whether their child's primary physical residence would be in Maine or North Carolina. In March 2011, following a contested hearing, the court ( Tucker, J.) issued a written order providing that the child was to live primarily in Maine with Tuell. The court ordered Nicholson to pay child support to Tuell, but provided that her child support obligation would be reduced by the total amount of the child's documented travel expenses for contact with Nicholson, which the court implied would be borne by Nicholson.

[¶3] In response, Nicholson filed a motion for findings of fact and conclusions of law, citing both M.R. Civ. P. 52 and M.R. Civ. P. 59 in the title. In her motion, Nicholson focused on the issue of primary physical residence, but she also stated, " The Court did not provide a credit for any alleged arrearage for travel Ms. Nicholson made for the purpose of a contact with her son." In an order dated April 19, 2011, the court rejected Nicholson's Rule 52 motion for findings and conclusions as untimely, see M.R. Civ. P. 52 (Tower 2011),[1] but granted her Rule 59 motion for amendment of the judgment " in part . . . on the issue of travel costs." The court then amended the March 2011 order to provide:

[The child's reasonable travel expenses for the travel back and forth between Maine and North Carolina, if paid and documented by the defendant in writing by receipts from the payees, shall be reflected as a 50% credit against the defendant's [Nicholson's child support obligation.[2]

Neither the original March 2011 order nor the April 2011 amended order stated that Nicholson would be entitled to offset any portion of her own travel expenses, either past or future, against her child support obligation.

[¶4] More than two years later, on July 10, 2013, Nicholson filed a motion that she titled " Motion to Enforce and Clarify Court Order." [3] In the motion, she noted that in her ...


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