Gardner v. Perry

• Decision Date: 31 August 1979
• Citation: 405 A.2d 721
• Parties: Cheryl S. (Perry) GARDNER v. Peter P. PERRY.
• Court: Maine Supreme Court

Page 721

405 A.2d 721

Cheryl S. (Perry) GARDNER v. Peter P. PERRY.

Supreme Judicial Court of Maine.

Aug. 31, 1979.

Platz & Thompson by Pasquale Maiorino (orally), Lewiston, for plaintiff.

Orestis & Garcia by Peter Garcia (orally), Lewiston, for defendant.

Before McKUSICK, C. J., and WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.

WERNICK, Justice.

Cheryl (Perry) Gardner (Mrs. Gardner) obtained in the District Court (District Eight) a judgment of divorce from her then husband Peter P. Perry (Perry), as well as a decree requiring him to pay $85.00 per week for child support. Some seventeen months later, on February 6, 1976, she moved pursuant to Rule 80(j) M.R.Civ.P. that Perry be adjudicated in contempt for having failed to meet his court-ordered obligation of child support. He countered by filing a cross motion in which, though acknowledging that he had failed to comply with the outstanding decree in that he had been paying only $50.00 per week plus some "other expenses", he alleged change of material circumstances as the basis for alteration of the outstanding decree to establish an apportionment of the obligation for child support between both parents. Perry sought such alteration not only to affect his obligation for future payments but also to operate retrospectively to excuse entirely, or reduce, his liability for accumulated arrearages. On October 28, 1977 the District Court, apparently overlooking the cross motion filed by Perry, ruled only on Mrs. Gardner's motion for enforcement of the outstanding decree. It granted that motion, adjudicated Perry in contempt and ordered him to pay $4,115.00, the amount found due and unpaid under the outstanding decree.

Perry then appealed to the Superior Court which, on June 2, 1978, affirmed the judgment of the District Court. From the Superior Court's judgment Perry appealed to this Court. While the appeal was being perfected, the parties returned to the District Court for a disposition by it of Perry's cross motion ¹ in sufficient time to allow a ruling on it to be given consideration as part of Perry's appeal pending in this Court. On November 20, 1978 the District Court denied Perry's cross motion, acting on the basis of testimony that had been recorded at the time of the original hearings on the motions. Perry appealed this determination to the Superior Court which denied Perry's appeal, and he then sought, and obtained, from this Court an Order consolidating the appeal he was taking from the Superior Court's affirmance of the District Court's denial of his cross motion with his already pending appeal from the judgment against him for accumulated arrearages.

We treat the arguments now pressed upon us on appeal as addressed to the disposition of both of the motions presented to the District Court.

To support his claim on appeal that the disposition of Mrs. Gardner's motion for enforcement cannot stand, and was wrongly affirmed by the Superior Court, Perry argues that the District Court had refused to admit highly pertinent evidence concerning (1) certain "in-kind" expenditures made by Perry on behalf of the children (clothing, etc.), and (2) as relevant to Perry's cross motion, the extent to which his former wife's remarriage had brought about a change of circumstances making it "unconscionable" to adjudicate his liability for arrearages strictly on the basis of the $85.00 per week established at the time of the divorce. We give separate consideration to each of these contentions.

1.

The Superior Court concluded, and we agree, that the District Court's refusal to give defendant credit for his so-called "in-kind" payments made directly to the children was supportable on the rationale that the evidence showed these payments to have been made gratuitously, and therefore they should not be taken into account towards discharging Perry's obligation under the outstanding decree. The questions and comments of the District Court Judge reflect a fundamental concern that Perry had not met his obligation for child support in accordance with the requirements of the decree. The Judge sought a justification for Perry's unilateral decision to reduce his obligation by means of the type of purchases ordinarily considered outside the scope of the obligation, such as new shoes at the start of the school year. When the Judge had apparently satisfied himself that no showing of necessity was forthcoming, such as a demonstration that his former wife had refused to make the purchases required to replace worn-out footwear, the Judge ruled the proffered list of expenditures inadmissible. ²

Perry complains that this exclusion of proffered evidence was an abuse of discretion. He invokes Wilson v. Wilson, 143 Me. 113, 56 A.2d 453 (1947) as authority for the view that benefits provided in kind to his children rather than in money paid to the parent having legal custody of them cannot be ignored in determining the extent of the arrearage under a decree requiring payments of money. While Wilson declares that a court has Power to alter a decree, even retroactively, to comport with new conditions, it nowhere suggests that a refusal to exercise this extraordinary power, grounded in a court's unwillingness to take into account the circumstances surrounding each and every expenditure claimed as a substitute for court-ordered payments of support, constitutes an abuse of discretion.

Courts are understandably reluctant to undo the effect of decrees for child support by permitting the spouse obligated to provide support to encroach upon the other spouse's prerogative to determine how the money will best be spent to serve the children's needs.

"If . . . (the husband) can make presents to the child, and then deduct it from the amounts due under the order, he is indirectly substituting his judgment for that of the wife with respect to the child's care. This violates the scheme implicit in all custody orders, which is that the custodian has sole authority and sole responsibility for the child's upbringing. It cannot, therefore, be permitted." Clark, Domestic Relations 515 (1968).

While some jurisdictions adhere to this doctrine inflexibly, others relax the bar somewhat when "compulsion of circumstances" necessitates some form of direct expenditure that will serve the essential purposes of the decree. See generally Annot., 47 A.L.R.3d 1031 (1974). The greater flexibility that can result from allowing credits in proper circumstances represents an important adjunct to the proper exercise of the equitable powers affirmed in Wilson, supra. ³

Here, the District Court Judge went so far as to question both counsel, as well as Perry, regarding the listed disbursements sought to be entered in evidence, to ascertain the justification for Perry's having redefined his support obligation in a manner that prevented the mother of the children, who was also their legal custodian, from fulfilling her role as the instrument selected by the Court to oversee the provisions made by the Court for the well-being of the children. Only when such justification was not forthcoming did the Judge refuse to give consideration to the "in-kind" disbursements. He did not rule them generally inadmissible, as a matter of law, regardless of circumstances. Rather, his ruling was properly regarded by the Superior Court as being an evaluation of the totality of the circumstances obtaining in this particular instance. So regarded, the District Court's ruling should stand if it is not an abuse of judicial discretion. Cf., Gulesian v. Gulesian, Me., 377 A.2d 119 (1977) (separate support pending divorce); Roussel v. State, Me., 274 A.2d 909 (1971) (custody); Strater v. Strater, 159 Me. 508, 196 A.2d 94 (1963) (alimony). We conclude that the Judge of the District Court was not guilty of an abuse of discretion but rather exercised sound judgment in first ascertaining the Nature of the charges involved (independently insignificant items were claimed, including meals and new sneakers) and then evaluating them in the overall circumstantial context in which they were made. ⁴

2.

We turn to Perry's claim that the District Court Judge committed error in failing to give him any relief whatever on his cross motion. That motion, it will be recalled, sought to have the District Court take cognizance of circumstances arising by virtue of the remarriage of Perry's former wife, which he claimed had significantly altered her ability to contribute to the support of the children. Perry wanted the Court to take account of these circumstances to order: (1) retroactive alteration of the outstanding decree for child support, thereby to excuse entirely, or reduce, Perry's liability for accumulated arrearages; and (2) alteration of the decree to allocate to each of the parents the amounts to be paid in the future.

We sustain the District Court's denial of Perry's cross motion insofar as it sought retroactive forgiveness, or reduction, of Perry's liability for unpaid arrearages. We will not hold the District Court guilty of an abuse of discretion for having refused to take cognizance of circumstances alleged to...