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Petersen v. Van Overbeke

Supreme Court of Maine

July 24, 2018


          On Briefs: May 31, 2018

          Michele D.L. Kenney, Esq., Houlton, for appellant Paul J. Van Overbeke

          Aaron Fethke, Esq., Fethke Law Offices, Searsport, for appellee Katrina I. Petersen Belfast District Court docket number FM-2008-22 For Clerk Reference Only


          GORMAN, J.

         [¶l] Paul J. Van Overbeke appeals from a judgment of the District Court (Belfast, Worth, J.) modifying his child support obligation to Katrina I. Petersen regarding their minor child. Van Overbeke argues that neither party requested that the court modify child support and that the court erred both by addressing the issue and in its calculations. Because the court had authority to modify child support but erred in its calculations, we vacate the judgment and remand for the court to enter a judgment that correctly calculates the parties' child support obligations.

         I. BACKGROUND

         [¶2] On November 20, 2008, the District Court (Belfast, Mathews, M.) granted a divorce to Van Overbeke and Petersen. Pursuant to the judgment, which was entered by agreement, the parties had shared parental rights to their then three-year-old child. In addition, the child's primary residence was to alternate every four months between Minnesota, where Van Overbeke lived, and Maine, where Petersen lived. Each parent was responsible for paying to have the child "delivered to the other." This arrangement was to continue until "the child is of age to start kindergarten in either state." The judgment required neither party to pay child support and explained that the deviation was based on "[t]he cost of travel related [to] the minor child." Child support documents attached to the divorce judgment show that, had child support been ordered pursuant to the guidelines, Van Overbeke would have been ordered to pay $89 per week.

         [¶3] In 2009, each party filed a motion to modify, asking that the court establish a new contact/residence schedule for the child. In an agreed-to judgment dated July 26, 2010, the court (Waterville, Dow, J.)[1] ordered that the child would spend the school year with Petersen in Maine and the summers in Minnesota with Van Overbeke and made further arrangements for contact between the child and his father. Van Overbeke was made responsible for all of the costs of transporting the child to and from Minnesota. The court ordered that Van Overbeke would pay no child support and stated that the deviation was based on Van Overbeke's assumption of the costs of transportation "and the substantial time of contact... during the summer months."

         [¶4] On June 12, 2017, Van Overbeke filed a motion to modify in the District Court in Waterville. In his motion, Van Overbeke asked that the parental rights and responsibilities order be amended to order that the child spend the school year with him in Minnesota and the summers with Petersen in Maine. Petersen, not represented by counsel, responded. The court [Ham-Thompson, M.) held a case management conference and issued an order dated July 24, 2017, indicating that child support, among other issues, remained in dispute and that the case would be transferred back to the District Court in Belfast. The court (Belfast, Worth, J.) held a testimonial hearing on November 20, 2017, and made the following findings of fact in its order dated December 6, 2017.

         [¶5] Van Overbeke lives in Minnesota with his second wife and their three children. He earns approximately $60, 000 per year. Petersen lives in Maine, where she earns approximately $40, 000 per year.

          [¶6] The child, who is now twelve years old, has lived with Petersen during the school year and with Van Overbeke in Minnesota in the summer since 2010. He does very well in school and participates in a variety of activities. Noting that the child "has had the same core group of friends since age 5, but is generous and compassionate enough to include other children in his friendships," the court determined that "[i]t would not be in the child's best interest to make a change in primary residence now."

         [¶7] Having denied Van Overbeke's motion to modify the child's primary residence, the court turned to the issue of child support, which it noted "was identified as in dispute now." In its judgment, the court found that there was a "substantial discrepancy between the parents' earnings." The court's judgment modified the existing child support order by incorporating a child support worksheet and order that calculated the parties' support obligations.

         [¶8] The court's child support worksheet listed Petersen's gross income as $40, 000 and Van Overbeke's gross income as $80, 000. The court adjusted Van Overbeke's income by $156 to $79, 844, based on his imputed obligation to his other three children. As for health insurance, the court made no adjustments because it found that "[t]he record does not show whether a parent pays for health insurance." The order did invite the parties to "inform the Court in writing" if they agreed that one parent did provide health insurance and stated ...

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