Jarvis v. Jarvis

• Decision Date: 16 April 2003
• Parties: Tamara L. JARVIS v. Robert G. JARVIS.
• Court: Maine Supreme Court

832 A.2d 775

2003 ME 53

Tamara L. JARVIS v. Robert G. JARVIS.

Supreme Judicial Court of Maine.

Submitted on Briefs: February 26, 2003.

Decided: April 16, 2003.

Revised: August 11, 2003.

Richard L. Currier, Esq., Currier & Trask, P.A., Presque Isle, for plaintiff.

Jillian Aldebron, Esq., Presque Isle, for defendant.

Panel: SAUFLEY, C.J., and CLIFFORD, RUDMAN, ALEXANDER, CALKINS, and LEVY, JJ.

PER CURIAM.

[¶ 1] Robert Jarvis appeals from an order of the District Court (Presque Isle, Griffiths, J.) modifying the original divorce judgment. He argues that the District Court erred in: (1) finding that there had been a substantial change in circumstances justifying modification; (2) ordering contact between him and his older daughter when she is distressed by and refuses the contact; (3) ordering him to pay support that exceeded 60% of his disposable income without addressing his subsistence needs; (4) requiring him to provide health insurance for his two daughters; and (5) ordering him to reimburse Tamara Jarvis for her legal fees.

[¶ 2] Because the trial court made inadequate findings regarding Robert Jarvis's income, we vacate and remand for further proceedings.

I. CASE HISTORY

[¶ 3] Robert and Tamara Jarvis were divorced by an order of the District Court (Klaila, CMO) in September 2000. The order directed that the couple's minor daughters were to reside with Tamara. Robert was to have visitation rights every other weekend from Friday at 5 P.M. to Sunday at 5 P.M., with visitation on alternate weekends from 1 P.M. Saturday to 5 P.M. Sunday and at all other reasonable times. Robert was to pay $144 weekly in child support and maintain health insurance for the children, if it was available through his employer at a reasonable cost.

[¶ 4] On October 9, 2001, Tamara filed a motion to modify the divorce judgment with respect to the child support and Robert's rights of contact. Tamara alleged that (1) the contact schedule between the children and Robert had changed; (2) she had become a student at Northern Maine Technical College (NMTC), allowing her to work less and, consequently, earn less income; (3) she was being denied telephone contact with her daughters while they visited Robert; and (4) she and Robert could not agree on the above issues.

[¶ 5] Mediation was held on May 9, 2002. Robert, who was unrepresented at the time, agreed to pay $163.38 in weekly child support. On May 17, 2002, Robert filed a revised child support affidavit, stating that he had changed jobs and was now working for the Town of Fort Fairfield, earning $7.50 hourly ($300 weekly for a 40-hour week). On July 26, 2002, Robert filed another revised child support affidavit with an attached pay stub, stating that his expected income for 2002 was approximately $16,000.

[¶ 6] At the hearing on the motion to modify, Tamara testified that Robert's visitation patterns had changed over time, going from most weekends to every other weekend and some days during the week. She also stated that Robert had canceled several visits within a six to seven month period. Robert acknowledged that he had canceled a few visits, testifying that this had occurred because of his work schedule at his former job.

[¶ 7] At the time of the divorce, Tamara worked at the Aroostook Medical Center as a certified nurse's assistant monitor technician. After the divorce, she enrolled in school and began working toward her R.N. license by taking classes at NMTC in hopes of improving her earning capacity. Tamara was preparing to sit for her L.P.N. boards on August 5, 2002, and would thereafter be working one or two 7 A.M. to 7 P.M. shifts on the weekends while she continued to study. Tamara acknowledged that, because her reduced work schedule was a matter of her choice, she should be deemed to have an annual income of $15,000.

[¶ 8] Robert also changed employment in May 2002 and began working for the Town of Fort Fairfield, tending to the buildings and grounds. He testified that, after having worked at Northeast Packaging for approximately twelve years, he changed jobs because he was previously required to work overtime, his work schedule had interfered with his time with his children, and the factory was using new solvents that made him nauseous. Although he would be starting out at $7.50 per hour, Robert expected periodic pay raises that would, within a few years, return him to the same pay, $11.50 per hour, that he had been earning at Northeast Packaging. [¶ 9] Robert testified to having difficulty visiting with his older daughter because she refused to attend visits with him. Both Robert and his fiancée testified that, during her visits with Robert, his older daughter missed her mother, sometimes she would become ill, and the visits often ended with Tamara coming to pick her up. The younger daughter is described as a happy child who enjoys visits with her father.

[¶ 10] At trial, Robert testified that he was presently unable to afford health insurance through the Town of Fort Fairfield, because coverage for him and his daughters would cost in excess of $600 per month. His prior health insurance policy, through Northeast Packaging, had cost approximately $250 per month.

[¶ 11] At the conclusion of the hearing, the court invited each party to submit a draft order to reflect what each party requested to result from the hearing. On August 9, 2002, the court signed, without change, the draft order submitted by counsel for Tamara, resolving the issues presented in the motion to modify. The modification order that the court signed found that modification was justified by a sufficient change of circumstances and ordered that Robert: (1) "shall have contact [with the children] at all proper and reasonable times and places, including" alternate weekends for designated times, shared holidays, and school vacations; (2) maintain health insurance coverage for the children; (3) pay Tamara $163.38 per week in child support for the couple's children; and (4) reimburse Tamara $1,195.94 for attorney fees incurred during this litigation.

[¶ 12] On August 21, 2002, Robert filed a motion for additional findings and proposed findings of fact and conclusions of law. M.R. Civ. P. 52(a). The District Court entered its findings of fact and conclusions of law on September 6, 2002, adopting, with one technical modification, findings proposed by Tamara. With respect to Robert's income, the court found that:

The Defendant's earning capacity and "gross income" as defined by 19-A M.R.S.A. § 2001.5 to be $30,874.00 based upon the Defendant's past earnings and income tax records. (See Defendant's Child Support Affidavits and income tax information). Defendant voluntarily left his previous employment during the pendency of this proceeding. His earnings and benefits are unclear at this time. Defendant testified he is in a probationary period but expects his income to increase at the end of this period. The best evidence in the record of Defendant's income are his wage statements (W-2's) and income tax returns which establish his earning capacity. See, Harvey v. Robinson, 665 A.2d 215 (Me.1995).

[¶ 13] The court also found that Robert was better able "to absorb the costs of litigation and has, to some extent, contributed to the costs incurred by the Plaintiff." This appeal followed.

II. LEGAL ANALYSIS

[¶ 14] Initially in our analysis, we reiterate what we have stated on several occasions over the past two decades: a trial court's verbatim adoption of findings or orders proposed by one party in a case is disfavored, as such an approach suggests that the court has not carefully reviewed the evidence or applied its independent judgment in making its findings and conclusions.¹In re Marpheen C., 2002 ME 170, ¶ 7, 812 A.2d 972, 974; In re Allison H., 1999 ME 176, ¶ 7, 740 A.2d 997, 999; Weeks v. Weeks, 650 A.2d 945, 946 (Me.1994); Clifford v. Klein, 463 A.2d 709, 711-13 (Me.1983); In re Sabrina M., 460 A.2d 1009, 1012-13 (Me.1983).

[¶ 15] We recognize that factfinding and decision-making can be aided by parties submitting and a trial court considering and utilizing, when appropriate, draft findings or orders. But a key question on review, when draft orders are adopted without change or with little material change, will be whether the findings and order reflect the application of judgment by the court and not simply one of the parties. See Marpheen C., 2002 ME 170, ¶ 7, 812 A.2d at 974. "[A]lthough it is not automatic error to adopt one party's proposed findings, ... we generally scrutinize such findings to insure that the court properly performed its judicial function." In re Allison H., 1999 ME 176, ¶ 7, 740 A.2d at 999 (citations omitted).

[¶ 16] With this background, we look to the specific issues raised in this appeal.

A. Calculation of Income

[¶ 17] Robert argues that the District Court erred when it based his child support obligation on an income of $30,874 instead of his actual income at the time, which he reported to be $16,000 in his June 25, 2002, affidavit. He asserts that the court erred in imputing income to him, because it did not first make a finding that he was underemployed pursuant to 19-A M.R.S.A. § 2001(5)(D) (1998).

[¶ 18] Where, as here, a request for findings is made pursuant to M.R. Civ. P. 52(a), we do not assume that the trial court made all the findings necessary to support its judgment. Bayley v. Bayley, 602 A.2d 1152, 1154 (Me.1992). Instead, we review the original findings and any additional findings made in response to the motion for findings to determine if they are sufficient, as a matter of law, to support the result and if they are supported by the evidence in the record. Id. at 1153-54.

[¶ 19] Section 2001(5)(D) defines gross income and provides, in pertinent part:

Gross income may include the difference between the amount a party is earning and that party's earning capacity when the party voluntarily becomes or remains unemployed or underemployed, if

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