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Fox v. Fox

Supreme Court of Maine

December 10, 2019

ELWOOD L. FOX
v.
KAREN A. FOX

          Submitted On Briefs: November 21, 2019

          Elwood L. Fox, appellant pro se.

          Judy Potter, Esq., Cape Elizabeth, for appellee Karen A. Fox.

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

          PER CURIAM.

         [¶1] Elwood Fox appeals from a judgment of the District Court (Portland, Cashman, J.) granting Karen Fox's motion to enforce the provision of the parties' divorce judgment requiring Elwood to pay towards his children's college expenses. In a separate motion, Karen has requested attorney fees for a frivolous or contumacious appeal. See M.R. App. P. 13(f). We affirm the judgment, and we grant Karen's motion for attorney fees. A. Motion to Enforce

         [¶2] The parties were divorced in June 2010 by an agreed divorce judgment [Oram, M.), which incorporated a separate settlement agreement. The settlement agreement contains a provision under the heading "College Expenses" that states:

Beginning May 1, 2010, Elwood shall contribute the sum of $750 per month into a college fund(s) for the children's benefit. He shall provide proof of such contributions to Karen by June 1st of each year.
Elwood and Karen agree to communicate and cooperate in assisting the children in the selection and financing, to the best of their respective abilities, of their post-secondary education institutions and programs.

         [¶3] The amount of the monthly obligation reflects the fact that Elwood is a physician who is more able than Karen to contribute to their children's college expenses. The Child Support Worksheet filed with the original divorce agreement indicated that Elwood's annual income was then $220, 000. For 2018, the court [Cashman, J.) supportably found that Elwood had an annual earning capacity of $200, 000. The court also determined that Elwood had an outstanding child support arrearage of between $110, 644 and $128, 671.98.

         [¶4] Since the entry of the agreed upon divorce judgment, Elwood has consistently failed to meet his obligations, including payment of child and spousal support, pursuant to the divorce judgment and subsequent court orders.[1] His repeated failures to comply with the divorce judgment have led to enforcement orders and several findings of contempt against him. In May 2018, Karen filed another motion for contempt and a motion to enforce-the matter now before us-alleging that their son was in college and that Elwood had refused to give their son necessary money for college expenses, as required by the College Expenses provision in the settlement agreement. Karen also sought an accounting of their daughter's college fund, which Elwood had refused to provide.

         [¶5] The court held a hearing on the motion to enforce in April 2019. Elwood did not attend the hearing but appeared through counsel. He now argues that his due process rights were violated because he was "never officially notified" of the date of the hearing and because he was "never served in hand with notice of [the] hearing."[2]

         [¶6] At the hearing, Elwood's attorney (1) indicated that his client "appeared through counsel," and (2) cross-examined Karen, the only witness. Elwood's briefs say nothing about how his presence might have affected the court's conclusions. Elwood has failed to demonstrate that he was denied due process because he had notice of the proceeding, he "had the opportunity- through [his] attorney-to examine witnesses and respond to claims and evidence, and . . . [he] has failed to demonstrate on appeal how [his] participation in . . . the [hearing] . . . could have affected the court's findings." In re Child of Danielle F., 2019 ME 65, ¶ 6, 207 A.3d 1193 (citation omitted).

         [¶7] After the hearing, the court granted Karen's motion to enforce, ordering Elwood to release the money in his son's college account and to provide an accounting of his daughter's fund. In its judgment, the court supportably found that Elwood's son had nearly completed his third year of college and had borrowed $88, 000 to pay his college expenses and that, other than a wire transfer of $4, 258, Elwood has not contributed financially to his son's college education. The court also granted Karen's motion for attorney fees, awarding her $4, 000 for prosecution ...


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