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Berntsen v. Berntsen

Superior Court of Maine

January 28, 2016

ADRIANA M. BERNTSEN Plaintiff,
v.
DAVID L. BERNTSEN and OLIVIA DAVIS, Defendants.

JOAN M. EGDALL, ESQ. LEGAL EASE, LLC, PA. Counsel for Plaintiff.

CHRISTOPHER P. LEDDY, ESQ. AINSWORTH, THELIN & RAFTICE, PA. Counsel for Defendants David. Berntsen.

PETER J. CYR, ESQ. Counsel for Defendants.

ORDER ON DEFENDANT DAVIS'S MOTION TO DISMISS AND FOR JUDGMENT ON THE PLEADINGS AND DEFENDANT DAVIS'S MOTION FOR SANCTIONS

LANCE E. WALKER JUSTICE.

Before the Court are Defendant W.S. Olivia Davis's Motion to Dismiss and for Judgment on the Pleadings and Motion for Sanctions.[1] Oral argument on Davis's motions was held on January 8, 2016. Based on the following, Defendant Olivia Davis's Motion to Dismiss and for Judgment on the Pleadings and her Motion for Sanctions are both denied.

I. BACKGROUND

Plaintiff Adriana M. Berntsen and Defendant David L. Berntsen are married, but have been separated for over three years. (Compl. ¶¶ 5, 7.) On October 20, 2014, Plaintiff filed for judicial separation with the District Court. (Id. ¶ 5.) On November 24, 2014, Defendant Berntsen answered with a counterclaim for divorce. (Id. ¶ 6.) Plaintiff and Defendant Berntsen presently are engaged in a divorce action before the District Court in Portland, docket number PORDC-FM-14-1092. (Id. ¶¶ 5-6.) Plaintiff asserts that Defendant W.S. Olivia Davis is Defendant Berntsen's live-in girlfriend.[2] (Id. ¶ 27.) Defendants Berntsen and Davis reside together at 7 Merrymeeting Drive in Portland, Maine. (Id. ¶¶ 2-3, 27.) The home at 7 Merrymeeting Drive is owned by Davis. (Id. ¶ 31.)

Plaintiffs complaint alleges that, on or about June 9, 2014, prior to the initiation of the divorce action, Defendant Berntsen opened joint checking and savings accounts with Davis. (Id. ¶ 14.) Plaintiff alleges that Defendant Berntsen has transferred marital assets to the checking account held with Davis and has comingled those marital assets with Davis's funds in order to conceal those assets from Plaintiff. (Id. ¶¶ 15-17, 22-23.)

Plaintiff also alleges Defendant Berntsen transferred funds to Davis in order for Davis to purchase the property at 7 Merry meeting Drive and to make improvements on the property. (Id. ¶¶ 28-29.) Plaintiff asserts that Defendant Berntsen provided Davis with the funds to purchase the property in order to prevent Plaintiff and creditors from reaching the property and that Defendant Berntsen has an unrecorded interest in the property at 7 Merrymeeting Drive. (Id. ¶¶ 31, 34-35.) Franklin American Mortgage Company ("FAMC") is the holder of a mortgage deed for the property at 7 Merrymeeting Drive. (Id. ¶ 32.)

On May 22, 2015, Plaintiff filed a one-count complaint against Defendants Berntsen and Davis for fraudulent transfer under the Maine Uniform Fraudulent Transfer Act (the "UFTA"), 14 M.R.S. § 3571 et seq. (Id. at 1.) Plaintiff joined FAMC as a party-in-interest in the action. (Id. 4.) The complaint asks the court to avoid any transfers of property or assets from Defendant Berntsen to Davis, to enjoin Defendant Berntsen from any further transfers of property to Davis, to award Plaintiff any property fraudulently transferred to Davis, and to order any other appropriate relief. (Id. at 5.)

On July 1, 2015, Davis filed an answer and a motion for sanctions. (Davis Ans. 1; Davis Mot. Sanctions 1.) Defendant Berntsen filed an answer to the complaint on July 2, 2015. (Berntsen Ans. 1.) On July 8, 2015, Davis filed a motion to dismiss and for judgment on the pleadings. (Davis Mot. Dismiss & J. Pleadings 1.) Plaintiff filed oppositions to both of Davis's motions on July 21, 2015. (PI. Opp'n to Davis Mot. Sanctions 1; PI. Opp'n to Davis Mot. Dismiss & J. Pleadings 1.) Davis also filed a reply memorandum to both oppositions. (Davis Reply to PI. Opp'ns 1.)

II. DAVIS'S MOTION TO DISMISS AND FOR JUDGMENT ON THE PLEADINGS

A. Standard of Review

The court shall dismiss a civil action when the complaint fails "to state a claim upon which relief can be granted." M.R. Civ. P. 12(b)(6). After the close of pleadings, any party may move for judgment on the pleadings. M.R. Civ. P. 12(c). "Both a motion to dismiss for failure to state a claim and a motion for judgment on the pleadings test the legal sufficiency of the complaint." MacKerron v. MacKerron, 571 A.2d 810, 813 (Me. 1990) (internal citation, alterations, and quotation marks omitted). The sufficiency of a complaint is a question of law. Id. The court reviews the complaint in the light most favorable to the plaintiff to determine whether the complaint "sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." Bean v. Cummings, 2008 ME 18, ¶ 7, 939 A.2d 676 (internal citation and quotation marks omitted). "A complaint is sufficient unless it appears to a certainty the plaintiff is entitled to no relief under any set of facts he might prove in support of his claim." MacKerron, 571 ...


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