September 16, 2015.
Frink Wolf, Esq., and Jonathan M. Dunitz, Esq., Verrill Dana,
LLP, Portland, for appellant John P. Simpson.
C. Lavoie, Esq., and Elizabeth J. Scheffee, Esq., Givertz,
Scheffee & Lavoie, PA, Portland, for appellee Elena
Frink Wolf, Esq., for appellant John P. Simpson.
C. Lavoie, Esq., for appellee Elena Wechsler.
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
[¶1] John P. Simpson appeals from a judgment
of divorce from Elena Wechsler entered in the District Court
(Portland, Powers, J. ), after it adopted and
modified the report of a referee. Simpson argues that the
judgment is affected by error because the referee did not
give proper weight and consideration to statutory factors
when (1) determining primary residence for the parties'
minor children, see 19-A M.R.S. § 1653(3)
(2015), and (2) dividing the marital estate, see
19-A M.R.S. § 953(1) (2015). We affirm the judgment.
[¶2] By agreement of the parties, the court
( Kelly, J. ) appointed a referee to recommend a
judgment in this divorce matter. See 19-A M.R.S.
§ 252 (2015); M.R. Civ. P. 53, 119. After a hearing, the
referee found the following facts, which are based on
competent evidence in the record and which the court adopted
in full with one modification, as discussed below.
See Raisen v. Raisen, 2006 ME 49, ¶ 2,
896 A.2d 268.
[¶3] Elena Wechsler and John P. Simpson were
married in May 2008 and
are the parents of two minor children, who were born in July
2009 and November 2011. The family resided in a house in
Cumberland Foreside that Simpson had purchased in 2004 for
$550,000. In 2011, during the marriage, Simpson refinanced
the house and conveyed it to himself and Wechsler as joint
tenants. At that time, the house had an appraised value of
[¶4] Simpson earned advanced degrees in
business and law before his marriage to Wechsler. From 1996
until 2012, he ran a successful company, but he was forced to
go out of business in 2012 due to a costly lawsuit. He then
passed the Maine bar examination and began working part-time
for a local attorney, while also searching for more stable
employment. Wechsler was gainfully employed as a radiologist
throughout the marriage.
[¶5] In September 2013, Wechsler moved out
of the family home and filed a complaint for divorce. The
parties agreed to residential arrangements for their children
during the pendency of the divorce action. Wechsler moved for
the appointment of a guardian ad litem, see 19-A
M.R.S. § 1507(1) (2015); M.R. Civ. P. 107(a)(2), and the
court ( Najarian, M. ) granted her motion in
November 2013. Later, in July 2014, the court ( Kelly,
J. ) granted the parties' joint motion to appoint a
referee, see 19-A M.R.S. § 252; M.R. Civ. P.
53, 119, and ordered the referee to prepare a report setting
forth findings of fact and conclusions of law on " all
issues raised by the pleadings." The parties reserved
the right to object to the report but agreed that if there
were no objections, the court could enter a judgment on the
report as filed. See M.R. Civ. P. 53(e)(2).
[¶6] The referee held a one-day hearing in
August 2014, where both parties and the guardian ad litem
testified. Wechsler requested that she be awarded
primary residence of the children, asserting that she had
been the children's primary caretaker and that Simpson
had contributed minimally to the children's care. In
contrast, Simpson requested " shared primary residential
care," 19-A M.R.S. § 1653(2)(D)(1) (2015), and
maintained that he had played a significant role in the
[¶7] During the hearing, the guardian ad
litem's report was admitted in evidence without
objection. The report substituted for his testimony on direct
examination, and he then presented oral testimony and was
subject to examination by the parties. In the report and in
his testimony, the guardian ad litem stated that although
Simpson worked from home, he rarely interacted with his
children during the daytime and that two nannies cared for
the children almost exclusively until Wechsler returned from
work, when she would assume the responsibilities of primary
caregiver for the children. In his report, the guardian ad
litem also considered " well-established principles of
child development" bearing on residence and parent-child
issues as applied by the state of Washington. Those
principles recommend primary, rather than shared, residence
for young children. The guardian ad litem wrote, however,
that while Washington's guidelines and the underlying
theories of child development are instructive, " we live
in the state of Maine, the laws of Washington are not
applicable to our laws, and our state should not and cannot
follow the laws or guidelines of another state." Either
directly or in substance, the guardian ad litem
applied each of Maine's best interest factors,
see 19-A M.R.S. § 1653(3), and on that basis
recommended that in light of the children's young ages
and Wechsler's historically greater contributions to
their care, they should reside primarily with her.
[¶8] In October 2014, the referee filed her
report with the court, adopting the guardian ad litem's
findings and recommendation that the children should
primarily reside with Wechsler. The referee further
recommended that the parties share parental rights and
responsibilities, and that Simpson have rights of contact
with the children at his residence approximately two days
each week. Based on the parties' agreement, the referee
recommended that Simpson would not be responsible for child
support, but to set a baseline for future modifications, the
referee found that Wechsler earned $216,000 annually and
imputed Simpson's income to be $30,000 annually.
[¶9] Regarding the division of the marital
estate, the referee found that Wechsler had contributed more
toward the acquisition of marital property than Simpson.
See 19-A M.R.S. § 953(1)(A). Nevertheless,
because of Wechsler's stronger financial position arising
from her income and the value of her nonmarital property,
see id. § 953(1)(B)-(C), the referee
recommended that Simpson receive more than half of the value
of the marital estate. Among other things, the referee
awarded Simpson the marital residence, which was valued at
$690,000 with a mortgage balance of $351,492, leaving equity
of approximately $340,000. The referee also assigned Simpson