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Berntsen v. Berntsen

Supreme Court of Maine

June 6, 2017


          Submitted On Briefs: April 27, 2017

          Jeffrey Bennett, Esq., and Joan Egdall, Esq., Legal-Ease, LLC, South Portland, for appellant Adriana M. Berntsen

          Christopher P. Leddy, Esq., Ainsworth, Thelin & Raftice, P.A., South Portland, for appellee David L. Berntsen


          MEAD, J.

         [¶1] Adriana M. Berntsen appeals from a judgment of divorce from David L. Berntsen entered in the District Court (Portland, /. French, J.). Adriana contends that the court erred or abused its discretion (1) by limiting her financial discovery from a third party; (2) in its valuation of marital property; (3) by failing to find that David's discovery violations constituted economic misconduct; (4) by making insufficient findings supporting its award of spousal support and failing to award her additional support; and (5) declining to award her attorney fees. We affirm the judgment.

         I. BACKGROUND

         [¶2] Following a contested hearing, the court made the following findings, which are supported by the record. See Hutt v. Hanson, 2016 ME 128, ¶ 2, 147 A.3d 352. Adriana and David were married in Italy on May 6, 1982. David was serving in the U.S. Army, and Adriana "was the homemaker and caregiver" of their four children while the family relocated to various places. David retired from the military in 1998, and the family eventually all moved to Maine by 2002. In 2011, the marriage broke down, and Adriana moved to Florida. David agreed to give Adriana his military pension payments for support, and Adriana also worked part-time at a military base selling cosmetics. She had sold cosmetics part-time in the past, but had not worked outside the home while residing in Maine.

         [¶3] In 2013, David met his current partner. He told Adriana about his partner in September of that year. In June 2014, without Adriana's knowledge or consent, David liquidated his IRA valued at about $61, 000 and put most of the funds into a bank account he owned jointly with his partner. Around that time, he also borrowed about $11, 000 against his 4Ol(k) account. David used the IRA funds and loan proceeds to purchase and renovate a condominium in his partner's name, where he and his partner currently reside.

         [¶4] Adriana returned to Maine in October 2014 and filed a complaint for judicial separation; David counterclaimed for divorce. On December 17, 2014, the court [Goranites, J.) entered an interim order on the parties' points of agreement resulting from mediation by which they would maintain their current life insurance policies and that David would pay Adriana $2, 000 per month in spousal support.

         [¶5] On October 30, 2015, Adriana served a subpoena to take David's partner's deposition and for production of documents related to her finances and the condominium. The court [Kelly, J.), in an order entered without specific findings, granted David's partner's motion to quash. On March 2, 2016, Adriana subpoenaed David's partner to testify at the divorce hearing and produce financial documents. David's partner filed another motion to quash.

         [¶6] A contested hearing was held on March 15 and 23, 2016. At the outset of the hearing, the court (J. French, J.) reminded the parties that it had ruled at a discovery conference conducted during the previous week that the subpoena for the appearance of David's partner would not be quashed, but she would not be required to produce any documents that had not been under David or Adriana's control. After giving the parties the opportunity to argue the motion further, the court elaborated on its decision, ruling that Adriana did not need documents from David's partner to make her arguments at trial and that they were irrelevant to the issue of the division of marital property. The court also emphasized that while it would not limit Adriana's access to relevant information, it was taking into consideration "the burden [on] and privacy o[f] a nonparty."

         [¶7] In a judgment dated April 11, 2016, the court found that David had engaged in economic misconduct when he borrowed against the 4Ol(k) account and liquidated the IRA-actions that collectively reduced the marital estate by $72, 000-and stated that this misconduct was a factor in determining the property distribution and spousal support. The court found that David's 4Ol(k) account is currently worth about $31, 317 but is subject to a loan of approximately $10, 000 that he used for improvements to the condo; he earns a salary of $85, 686.90 per year; and he has a military retirement pension, 82% of which is marital, from which he receives monthly payments of $1659.10. Concerning Adriana, the court found that she earns $10.10 per hour working up to 30 hours per week at a department store selling cosmetics. The court also found, however, that she is able to work up to 40 hours per week and earn commissions, and it therefore determined that her earning potential is at least $21, 008 per year.

         [¶8] The court awarded Adriana general spousal support of $1, 500 per month, as well as reimbursement support of $237 per month for a period of ten years. The court explained that it carefully considered the factors enumerated in 19-A M.R.S. § 951-A(5) (2016), "including but not limited to the length of the marriage, Adriana's contributions as homemaker, and David's economic misconduct." It also awarded Adriana 100% of the remaining balance of the 4Ol(k) account and 59% of the marital portion of David's military pension. The judgment ordered that David and Adriana each retain ownership of the personal property already in their possession and their personal bank accounts, which the court found to be equal in value. The court declined to award attorney fees to either party, noting that both parties had incurred "substantial legal fees" and "considering] the manner in which both parties litigated the case."

         [¶9] Adriana moved for amended or additional findings of fact and conclusions of law pursuant to M.R. Civ. P. 52(b), which the court denied. ...

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