Sulikowski v. Sulikowski

          Submitted On Briefs: June 26, 2019

          Gene R. Libby, Esq., and Keith P. Richard, Esq., Libby O'Brien Kingsley & Champion, LLC, Kennebunk, for appellant James A. Sulikowski

          Janet K. Kantz, Esq., Vincent, Kantz, Pittman & Thompson, LLC, Portland, for appellee Sandra L. Sulikowski

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.

          HUMPHREY, J.

         [¶1] James A. Sulikowski and Sandra L. Sulikowski each appeal from an order modifying child support and spousal support entered in the District Court (Biddeford, Cantara, J.), each asserting that the court erred in determining the parties' incomes, modifying the child and spousal support orders, and denying his or her request for attorney fees. We discern no error except in the court's calculation of the child support obligation, vacate and remand the child support order to be corrected by the court, and affirm the judgment in all other respects.

         I. BACKGROUND

         [¶2] Viewed in the light most favorable to the court's judgment, the record supports the following facts. McBride v. Worth, 2018 ME 54, ¶ 2, 184 A.3d 14. The parties were married in 2000 and divorced in 2014; they have three young children. In the divorce judgment, the court (Biddeford, Douglas, J.) found that James's income was $98, 500 and imputed income to Sandra of $38, 000. The divorce judgment also established shared parental rights and responsibilities and shared primary residence, and ordered James to pay child support and spousal support.^[1]

         [¶3] On November 1, 2016, Sandra filed a motion to modify child support, alleging that James's income had increased substantially since the divorce. On February 2, 2018, James filed a motion to terminate spousal support, alleging that Sandra had experienced a substantial change in circumstances in that (1) her income had increased substantially and (2) she had been cohabitating in a mutually supportive relationship functionally equivalent to marriage for twelve of the previous eighteen months. See 19-A M.R.S. § 951-A(12)(2018). The motions were considered at a consolidated hearing on December 20 and 21, 2018.

         [¶4] At the hearing on the motions, the court heard testimony from Sandra, Sandra's partner, Sandra's accountant, James, and James's expert witness-a forensic accountant. Sandra testified that her income in each of the prior several years was between $32, 483 and $47, 713, and that a recent injury had diminished her earning capacity. Applying certain accounting techniques and assumptions to various bank statements and profit-loss data from Sandra's businesses, the forensic accountant estimated that Sandra's annual income likely ranged from $113, 174 to $144, 501 in the same time period. The court also heard testimony from James and the forensic accountant that James's income, which consists of a base salary and additional income from grants and consulting services, varies from year to year but averaged $120, 247 per year from 2014 to 2017.

         [¶5] The court found that Sandra's gross annual income is $76, 000, "twice the income imputed to her at the time of the divorce." In addition, the court found that Sandra "routinely" underreported her overall income, did not report income from one of her businesses "with any degree of accounting accuracy," and kept records that were "astonishingly and conspicuously lacking in accuracy and reliability." The court found that James's income is $120, 247, and denied James's request to terminate spousal support, but reduced his obligation by half, finding that the evidence "falls far short of establishing" that Sandra was in a relationship similar to marriage and that an equitable need for general spousal support persisted.^[2] See 19-A M.R.S. § 951-A (2018).

         [¶6] Regarding child support, the court mistakenly calculated James's child support obligation using the figures for two children, instead of three, from the child support table promulgated by the Department of Health and Human Services. See 10-144 C.M.R. ch. 351, ch. 6, § 2 (effective July 29, 2016). Although the court's child support order correctly indicated that sixty-one percent of the children's medical expenses would be allocated to James and thirty-nine percent to Sandra, based on their relative incomes, see 19-A M.R.S. § 2006(4) (2018), the supplemental worksheet attached to that order allocated fifty-one percent of these expenses to James and forty-nine percent to Sandra.

         [¶7] From these factual findings, the court (1) modified James's child support obligation; (2) reduced, but did not terminate, James's spousal support obligation and ordered Sandra to repay James $3, 750 for his overpayment of spousal support; (3) denied attorney fees to each side; and (4) maintained the other provisions of the underlying divorce judgment.

         [¶8] Following the entry of judgment, both parties timely filed motions for further findings and reconsideration. M.R. Civ. P. 52(b), 59(e). The court ...