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Hero v. Macomber

Supreme Judicial Court of Maine

January 12, 2016

BARBARA A. (MACOMBER) HERO
v.
JOSEPH O. MACOMBER

          Submitted on Briefs December 17, 2015

          On the briefs: Ronald P. Lebel, Esq., and Sarah C. Mitchell, Esq., Skelton Taintor & Abboott, Auburn, for appellant Joseph O. Macomber.

         Elizabeth A. Boepple, Esq., Lambert Coffin, Portland, for appellee Barbara A. (Macomber) Hero.

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

          OPINION

Page 399

          MEAD, J.

          [¶1] Joseph O. Macomber appeals from a judgment entered by the District Court (Ellsworth, Mallonee, J. ) granting Barbara A. (Macomber) Hero's motion to enforce a provision of the parties' divorce judgment requiring the sale of certain real property in a commercially reasonable manner. On appeal, Joseph contends that (1) the court abused its discretion in denying his motion to continue; (2) the court erred in failing to grant or make findings on a motion for an expedited hearing; and (3) the court's finding that the sale of real property was commercially reasonable was not supported by sufficient evidence in the record. We affirm the judgment.

         I. BACKGROUND

          [¶2] Viewing the evidence in the light most favorable to the court's judgment, the record supports the following facts. Pearson v. Wendell, 2015 ME 136, ¶ 2, 125 A.3d 1149. Joseph and Barbara were married in 1995, and Barbara filed for divorce in 2012. The court entered a divorce judgment on October 17, 2014, that incorporated the terms of a mutual agreement between the parties. Among the marital property subject to the divorce judgment is certain real property on Water Street in Castine. In 2012, the Water Street property was appraised to have a fair market value of $515,000. The terms of the divorce judgment provided that " [a]s soon as practicable, Water Street shall be sold in a commercially reasonable manner and the parties are ordered and required to take all steps reasonably required to effect such a sale." Pending the sale, the parties shared the Water Street property as tenants in common; Joseph held a 27.5% undivided interest and Barbara held a 72.5% undivided interest. Once the sale of the Water Street property was consummated, each party would receive proceeds consistent with their respective interest in the property.

          [¶3] In addition to his interest in the Water Street property, Joseph was also awarded exclusive ownership of real property situated at The Shore Road (Shore Road) in Castine, which was encumbered by a mortgage in the amount of $129,000. The judgment required Joseph to use his proceeds from the sale of the Water Street property to pay any indebtedness on the Shore Road property.

          [¶4] On February 3, 2015, Barbara filed a motion to enforce the judgment with regard to the sale of the Water Street property and a motion for an expedited hearing on the matter. In her motion to enforce, Barbara indicated that she sought to sell the property for $300,000 and had secured a buyer for that amount, but that Joseph refused to consent because, he contended, the sale was commercially unreasonable given that the property had been appraised at $515,000 three years earlier. On March 19, 2015, the motion for an expedited hearing was granted, and the court issued a notice of hearing for all pending motions to be held on April 7, 2015.

          [¶5] Joseph failed to attend the hearing on April 7, 2015, because notice was sent to an incorrect address. Two days later, the court issued a notice of hearing to the correct address indicating that the hearing on the motion to enforce would be held on April 15, 2015. On the day before the hearing, Joseph filed a motion to continue citing the death of his father and his need to obtain a lawyer. In response to his motion, Barbara's counsel posited that " [f]ailure to sell to this buyer now is not going to guarant[ee] a higher price in the future. And in fact, what is likely to occur

Page 400

is we have a very real potential of the town of Castine for[e]closing its municipal real ...


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