Submitted On Briefs: June 22, 2016
Anthony J. Sineni, III, Esq., Law Offices of Anthony J.
Sineni, LLC, Portland, for appellant Stephen Cushing
Theodore H. Irwin, Jr., Esq., Irwin Tardy & Morris,
Portland, for appellee Ann Cushing
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
Stephen Cushing appeals from a judgment of the District Court
(Portland, Darvin, J.) dismissing his motion to
modify the parties' divorce judgment with prejudice. We
dismiss the appeal as untimely.
The parties were divorced in 2011. In September 2014, Stephen
filed a motion to modify the divorce judgment's child
contact schedule and child support provisions. Prehearing
litigation proceeded over the course of the next nine months.
On June 26, 2015, in response to Stephen's continued
failure to comply with the court's orders that he produce
discovery and pay a portion of Ann's attorney fees, the
court signed an order dismissing the motion with prejudice
and establishing a procedure to determine the final amount of
the attorney fee award to Ann.
The dismissal order was docketed on June 29, 2015. On August
7, the court docketed an order awarding Ann additional
attorney fees. Stephen filed a notice of appeal on August 27,
fifty-nine days after the dismissal order was docketed, and
twenty days after the order awarding additional attorney fees
was docketed. Ann moved this Court to dismiss the appeal as
untimely; Stephen objected.
On November 10, 2015, Stephen filed a motion for extension of
time to file a notice of appeal, contending that although he
had received the trial court's dismissal order in July,
the clerk's office had repeatedly told his attorney's
firm that the order had not yet been docketed. The motion
stated that his attorney did not discover until Ann moved to
dismiss the appeal that the dismissal order had been docketed
on June 29. We ordered that both Ann's motion to dismiss
the appeal and Stephen's motion for extension of time be
considered with the merits of the appeal.
By rule, an appellant in a civil case has twenty-one days
"after entry of the judgment or order appealed
from" to file a notice of appeal M.R. App. P. 2(b)(3).
"A judgment or order is entered . . . when it is entered
in the docket." M.R. App. P. 2(b)(1). Accordingly, if
the "judgment or order appealed from" in this case
is the dismissal order docketed on June 29, 2015, then
Stephen's notice of appeal was filed thirty-eight days
late. If, as he contends, it is the order awarding additional
attorney fees docketed on August 7, 2015, the appeal is
We conclude that the dismissal order was a final judgment
when it was docketed on June 29, 2015, and that therefore
Stephen's notice of appeal is untimely. The rules provide
that "[i]n an action in which there is a claim for
attorney fees, a judgment entered on all other claims shall
be final as to those claims unless the court expressly
finds that the claim for attorney fees is integral to the
relief sought." M.R. Civ. P. 54(b)(2) (emphasis
added). The trial court made no such express finding in its
order dismissing with prejudice Stephen's motion to
modify. Accordingly, "[a]bsent any finding on the part
of the motion court that the award of attorney fees in this
case was integral to the relief sought . . . the judgment . .
. was a final judgment for purposes of appeal."
Camden Nat'l Bank v. Peterson, 2008 ME 85,
¶ 14, 948 A.2d 1251.
Furthermore, the court did not implicitly find or even
suggest that the final amount of attorney fees awarded to Ann
was an integral part of its order. It was Stephen's
motion to modify the child contact provisions of the divorce
judgment that was at issue,  and the central purpose of the
court's order was to dismiss that motion with prejudice.
Attorney fees had already been awarded to Ann in two earlier
orders; the dismissal order only established a procedure for
determining the final amount of the award-a tangential issue.
See Green Tree Fin. Corp. v. Patten, 2000 ME 42,
¶ 15 n.6, 746 A.2d 373 (noting that pursuant to Rule
54(b)(2) a later award of attorney fees "does not affect
the finality of the [earlier]" judgment); cf.
Portland Co. v. City of Portland, 2009 ME 98,
¶¶ 18-19, 979 A.2d 1279 (concluding that Rule
54(b)(2) did not render a ...