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McNutt v. McNutt

Supreme Court of Maine

July 3, 2018


          Submitted On Briefs: April 25, 2018

          Clarke C. Hambley, Esq., Miller Law and Mediation, LLC, Portland, for appellant John D. McNutt

          Sarah Irving Gilbert, Esq., Camden Law LLP, Camden, for appellee Janice McNutt


          MEAD, J.

         [¶1] John D. McNutt (Dan) appeals from the judgment of the District Court (Wiscasset, Raimondi, J.) finding him in contempt of the parties' earlier divorce judgment and increasing his spousal support obligation to Janice McNutt. 19-AM.R.S. § 951-A(4)-(5) (2017); M.R. Civ. P. 66(d). Dan contends that the court clearly erred by finding that he is now able to pay increased spousal support and abused its discretion by ordering a temporary increase of that support to $1, 750 each month. He further asserts that it was error for the court not to address an ambiguity in the divorce judgment concerning whether he has a personal obligation to pay Janice the difference between the net proceeds from the sale of the marital properties and the $180, 000 value of Janice's interests in the marital real estate as established in the divorce judgment. He contends that because the court failed to resolve that ambiguity and imposed a lien in Janice's favor that was not provided for in the original decree, the order has prevented him from refinancing one of the properties and rendered him unable to purge his contempt.

         [¶2] We conclude that ample competent evidence in the record supports the court's findings that Dan was in contempt of the property disposition provisions of the divorce judgment and that he has enjoyed a substantial increase in income due to his disregard of the court's order to sell or refinance the two marital rental properties. The lien, as applied to the proceeds of the sale or refinancing of the individual properties, is consistent with the terms of the divorce judgment. We affirm the judgment.

         I. BACKGROUND

         [¶3] On March 31, 2014, the court [Billings, J.) issued a divorce judgment that incorporated the parties' settlement agreement to the extent not inconsistent with the judgment and awarded Janice $1, 000 in general spousal support payable each month until she received two lump sum payments for her interests in the marital rental properties. The divorce judgment specifically provided for spousal support until the rental properties were refinanced or sold:

4. Spousal Support. As and for general spousal support, [Dan] shall pay to [Janice] the sum of $1, 000.00 per month, commencing with the month of April, 2014. The spousal support provision shall remain in place until [Dan] has paid all of his obligations to [Janice] under the terms of this Judgment, including $150, 000 for the Oak/Howard Street property, $30, 000 for the McClintock Street and Townsend Avenue properties, the debts and attorney's fees as set forth below, and the spousal support itself. Spousal support shall terminate once [Dan] has paid [Janice] in full. [Janice] shall have a lien against all three parcels of marital real estate to secure the spousal support obligation of $1, 000 per month, and she shall be paid what she is owed at the time of the closing on any given property.

         [¶4] During their marriage, the parties owned two rental properties (the McClintock and the Oak properties) in Boothbay Harbor.[1] The divorce judgment set apart both of those properties to Dan and ordered that Janice was to receive two lump sums, as noted above, upon the sale or refinancing of the properties. Throughout these proceedings, Dan has resided in an owner's unit in one of the rental properties.

         [¶5] Pursuant to Section 3 of the divorce judgment, which relates to real estate, Dan was to pay Janice the first $30, 000 of the net proceeds from the refinancing of the McClintock property by December 31, 2015; if after that date Dan had not refinanced or paid Janice, he was to sell the property to the first person to make a "commercially reasonable offer" and pay Janice the $30, 000 out of the proceeds from that sale. As for the Oak property, the court ordered it placed on the market "within five days from the date of th[e] judgment and sold for the first commercially reasonable offer," at which time the first $150, 000 of the net proceeds was to go to Janice. Each of the two provisions in the divorce judgment relating to the sale of the real estate concluded with virtually identical language:

[Janice will or shall] be paid the first [$30, 000 or $150, 000] from the net proceeds of sale ... plus any amounts due her [pursuant to or under] her liens against the property for the debts, attorney's fees and spousal support obligations as set forth below.[2]

         [¶6] Nearly two and a half years after the court issued the divorce judgment, Dan still had not sold the Oak property; had failed to refinance the McClintock property by December 31, 2015; and had subsequently failed to list the latter property for sale. On September 27, 2016, Janice filed three motions, asking the court to (1) increase her monthly spousal support to $3, 000; (2) enforce the divorce judgment, see M.R. Civ. P. 120; and (3) find Dan in contempt for failing to refinance or sell the McClintock property, ...

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