TANYA J. MCMAHON
CHRISTOPHER P. MCMAHON
Briefs: September 26, 2018
Christopher P. McMahon, appellant pro se
C. Mitchell, Esq., and Amy Dieterich, Esq., Skelton Taintor
& Abbott, Auburn, for appellee Tanya J. McMahon
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM and
Majority: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM and
Christopher P. McMahon appeals from a judgment of the
District Court (Lewiston, Ende, J.) denying his
motion for contempt and granting Tanya J. McMahon's
motion to modify a 2010 divorce judgment and the court's
order (Sparaco, D.C.J.) denying his motion to alter
or amend the judgment and granting in part his motion for
additional findings of fact and conclusions of law. See
M.R. Civ. P. 52(b), 59(e).
Christopher argues that the court committed error and abused
its discretion by (1) denying his motion for contempt, (2)
failing to implement a partial mediation agreement, (3)
ordering him to pay attorney and guardian ad litem fees, (4)
denying a deviation from the child support guidelines, and
(5) imposing conditions on his visitation rights. Discerning
no error or abuse of discretion in the court's actions,
we affirm the judgment.
The following facts, all of which are supported by competent
evidence, were found by the court. Because Christopher moved
for additional findings of fact pursuant to M.R. Civ. P.
52(b), we do not infer any findings, and consider only the
findings and conclusions explicitly rendered by the court.
See Ehret v. Ehret, 2016 ME 43, ¶ 9, 135 A.3d
Christopher and Tanya McMahon, parents of three children now
ranging from eleven to eighteen years of age, were divorced
through a 2010 judgment entered by the District Court
(Ende, J.). The judgment conferred both shared
parental rights and shared primary residence for all three
children. Christopher moved to Connecticut in early 2012, but
neither party sought to amend the divorce judgment.
Over the next few years, Christopher's relationship with
his two eldest children began to deteriorate, in part because
of conflicts between the children and his new wife. In 2016,
the youngest child expressed a wish to try school in
Connecticut, and Tanya and Christopher began to discuss the
possibility of making the move happen. To this end,
Christopher sent a written agreement to Tanya stating that
the child would remain with him in Connecticut for the entire
school year. Tanya added additional language stating that the
child could move back to Maine without hesitation if the
child so desired, and sent a signed copy back to Christopher.
Christopher neither read nor replied to Tanya's version
of the agreement, and no further discussions took place. The
child moved to Connecticut later that year.
While the youngest child was in Maine for the holidays in
late 2016, Tanya sent a letter to Christopher stating that
their "temporary arrangement" had been rescinded,
and that the child would remain in Maine. Concurrently, Tanya
filed a motion to modify the 2010 divorce judgment, seeking
to provide the sole primary residence for the three children
and a recalculation of child support. In response,
Christopher filed a motion for contempt, alleging that Tanya
breached the 2010 divorce judgment by relocating the
residence of the youngest child without thirty days'
notice. Both parties attended mediation in May 2017, which
culminated in a partial agreement.
The court held a hearing on the parties' motions a half
day at a time on three days in late August and early
September. Following the hearings, the court granted
Tanya's motion to modify the divorce judgment, giving her
the right to provide the sole primary residence for all three
children. The court denied Christopher's motion for
contempt. The court (Sparaco, D.C.J.) denied
Christopher's subsequent motion to alter or amend and
granted in part his motion for additional findings of fact
and conclusions of law. Christopher timely appealed.
See 14 M.R.S. § 1901 (2017); 19-A M.R.S. §
104 (2017); M.R, App. P. 2B(c).
Motion for Contempt
Christopher first argues that the court erred and abused its
discretion by denying his motion for contempt. We review the
findings of fact "that form a basis for [the]
court's decision regarding civil contempt for clear
error." Lewin v. Skehan, 2012 ME 31, ¶ 18,
39 A.3d 58. The court's finding is "clearly
erroneous when there is no competent evidence in the record
to support it." Id. If review of the factual
findings reveals no clear error, the court's decision is
reviewed for an abuse of discretion. Id.
"For a court to find a party in contempt, the
complaining party must establish by clear and convincing
evidence that the alleged contemnor failed or refused to
comply with a court order and presently has the ability to
comply with that order." Efstathiou v.
Efstathiou, 2009 ME 107, ¶ 11, 982 A.2d 339.
Further, the "court order must inform the person in
definite terms what duties the order imposes upon him."
Lewin, 2012 ME 31, ¶ 19, 39 A.3d 58.
Here, Christopher moved to Connecticut following the issuance
of the original divorce judgment, making compliance with its
shared residence provision all but impossible. Neither party
sought to alter that judgment, and the parties' informal
agreement about the youngest child's move to Connecticut
in 2016 was not an enforceable order. See Fisco v.
Dep't of Human Servs.,659 A.2d 274, 275 (Me. 1995)
(holding that reliance on an informal agreement between
parties as to child support "is unreasonable and
unjustifiable" because it frustrates the power of the
court); Ashley v. State,642 A.2d 176, 176 (Me.
1994) (same). Accordingly, the court found that both parties
shared the responsibility for the sequence of events that
transpired; that there was no court order that specified the
youngest child's primary residence in light of the
changed circumstances; and therefore, ...