Kapler v. Kapler

• Decision Date: 10 July 2000
• Citation: 755 A.2d 502,2000 ME 131
• Parties: Robin KAPLER v. George KAPLER. George Kapler v. Isabel McKay.
• Court: Maine Supreme Court

755 A.2d 502

2000 ME 131

Robin KAPLER v. George KAPLER.

George Kapler v. Isabel McKay.

Supreme Judicial Court of Maine.

Submitted on Briefs June 27, 2000.

Decided July 10, 2000.

Armanda D. Beal, Esq., Bangor, for the appellant.

Dawn M. Pelletier, Esq., Pelletier & Faircloth, Bangor, for Robin Kapler.

Brent Slater, Esq., Bangor, for Isabel McKay.

Panel: WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.

RUDMAN, J.

[¶ 1] In this consolidated appeal, George Kapler appeals from two judgments entered in the Superior Court. George contends that the Superior Court (Penobscot County, Marsano, J.) erred when it affirmed a divorce judgment entered in the District Court (Newport, MacMichael, J.) and when it granted a summary judgment in favor of Isabel McKay on his trespass claim. We disagree and affirm the judgments.

I. BACKGROUND

[¶ 2] George and Robin Kapler were married on July 4, 1977. Robin filed for a divorce on April 1, 1996. After a hearing, the District Court granted a divorce judgment on July 29, 1998. The judgment awarded Robin and George shared custody of their four minor children with their primary residence with Robin in Newburgh. After the children were born, Robin primarily became a stay-at-home mother. Currently Robin works as a caterer and as a painter for an independent contractor; she does not receive any health or vacation benefits. George resides in St. Augustine, Florida, where for the past ten years he has owned and operated three residential development corporations. Robin and George each own fifty percent of two of George's corporations, George Kapler Realty and Hairstreak Development Corporation. They also jointly own eighty-five percent of the third corporation, George Kapler Homes.

[¶ 3] During the divorce hearing, much attention was focused on the characterization of a stock portfolio that Robin received, prior to her marriage, as a beneficiary of a trust settled by her grandfather and father. At the time of her marriage, the portfolio had a value of $110,000. Both parties agree that at the time of the divorce hearing the portfolio had a value of $450,000. George challenges the court's award of the increase in the value of the portfolio ($450,000 - $110,000 = $340,000) to Robin.

[¶ 4] The court distributed the couple's marital property in the following manner: The court awarded Robin the stock portfolio (the marital portion of which was valued at $340,000); the marital home in Newburgh ($160,000); a 1993 Ford Aerostar ($5,600); a 1990 Ford Ranger ($3,000); and stumpage from the timber cut on the Newburgh property ($11,276.77). To George, the court awarded George Kapler Realty ($3,200); Hairstreak Development Corporation ($683,000); George Kapler Homes, Inc. (undetermined value); real estate in Hampden ($20,000); a 34' sailboat ($45,000); a 15' 1965 Corson Boat with a 55 horsepower mercury motor and trailer ($2,000); and a life insurance policy ($25,000). The court also ordered George to assume the debt secured by a mortgage on the Newburgh home (-$107,000). Robin's total award equalled $519,876.77 and George's total award equalled $671,200. After an unsuccessful appeal to the Superior Court, George brought this appeal. [¶ 5] George also brought a trespass action in the Superior Court pursuant to 14 M.R.S.A. §§ 7551-B(2) and 7552(4)(B),¹ against Isabel McKay for damages from a timber cut on the Newburgh property.² At the time of the cut, Robin and George owned the Newburgh property as joint tenants. Originally, George and Robin both approached McKay about a timber harvest, but once Robin filed for divorce, George withdrew his consent for the timber cut and notified McKay orally and in writing as to his withdrawal of consent. Robin executed a new contract authorizing McKay to perform the timber cut. The trial court granted a summary judgment in favor of McKay concluding that one joint tenant may authorize a timber cut without exposing the timber cutter to trespass liability.

II. DISCUSSION

A. The Divorce Judgment

1. The Award of the Stock Portfolio to Robin Kapler as Nonmarital Property

[¶ 6] George argues that the District Court erred in classifying all of the stock portfolio as nonmarital property and distributing that amount to Robin. We review the District Court's judgment directly because the Superior Court acted in its appellate capacity. See Clum v. Graves, 1999 ME 77, ¶ 9, 729 A.2d 900, 904. We examine the District Court's characterization of marital property for clear error and will affirm the judgment unless no competent record evidence exists to support the characterization. See id. Property acquired prior to marriage constitutes nonmarital property, but the increase in the value of that property during the marriage is presumed to be marital property. See id.

[¶ 7] George has misapprehended the District Court's judgment. The District Court found that the shares of stock Robin received from her father and grandfather prior to her marriage were worth $110,000 at the time of the marriage and, therefore, that $110,000 of the shares constituted nonmarital property according to 19-A M.R.S.A. § 953 (1998).³ The court, however, could not determine what portion of the value of the shares, above the initial $110,000, constituted nonmarital property because Robin did not satisfy her "burden of showing how much is not marital property." Thus, although the District Court's discussion of the shares appears in its written decision under the heading of nonmarital property, the court did not characterize the $340,000 increase in the value of the shares to be nonmarital property. As the court noted, there was insufficient evidence to characterize the increase in the value of shares as nonmarital property. The shares, therefore, were marital property. See Clum, ¶ 15, 729 A.2d at 906 (quoting Harriman v. Harriman, 1998 ME 108, ¶ 8, 710 A.2d 923, 925, and stating that if a party fails to prove that the increase in the value of the property is nonmarital, the property is properly characterized as marital).

[¶ 8] We afford the District Court's distribution of marital property wide discretion and review only for abuse of that discretion. See Robinson v. Robinson, 2000 ME 101, ¶ 9, 751 A.2d 457, 459. "Absent a violation of some positive rule of law, we will overturn the trial court's decision only if it results in a plain and unmistakable injustice, so apparent that it is instantly visible without argument." Id. at ¶ 10, 751 A.2d 457 (internal quotations omitted). The court awarded George $151,323.23 more in marital assets than Robin. If the District Court had awarded George a portion of the stock portfolio, the distribution of the marital assets would have been widely disproportionate. Thus, the District Court did not exceed the bounds of its discretion by awarding Robin the stock portfolio. See id.

2. The Valuation of Hairstreak Development Corporation

[¶ 9] George argues that the court erred in its valuation of Hairstreak. We review the District Court's valuation of property for clear error. See Peters v. Peters, 697 A.2d 1254, 1258 (Me.1997). The District Court is not bound to accept any evidence as fact and must determine the weight and credibility of all the evidence. See id. at 1258-59. Nevertheless, the valuation must reflect "a reasoned evaluation of all the evidence." Id. at 1258 (internal quotations omitted).

[¶ 10] The court heard the following evidence before determining the company's value. Both George and his accountant testified that the fifty-seven house lots owned by Hairstreak could be sold for $28,000 each, but that if the whole subdivision was sold together, the lots would be sold at a discounted value. The accountant also testified that in 1997, fourteen lots sold for $28,000 each. Robin's expert, a Florida appraiser, estimated the value of each of Hairstreak's lots to be $30,000 plus an added value for certain lots. The appraiser even testified that there was a shortage of available home lots in the area and that if George had to liquidate the lots they would still sell for $30,000 per lot.

[¶ 11] The court valued the real estate development business by calculating the value of the fifty-seven house lots owned by Hairstreak ($28,000 × 57 = $1,596,000) and subtracting the corporation's liabilities of $913,000.00. George argues that this calculation was erroneous because both he and his accountant testified that this valuation method was improper due to the "volatile real estate market." George, however, does not offer an alternative method of valuation for the fifty-seven house lots the corporation owned; rather, he asserts that the court should have valued the company at $5,962.00 because that was all the money the corporation had at its disposal at the time of the divorce. Such an assertion is ludicrous. The court's valuation of Hairstreak is not erroneous; the valuation reflects a reasoned evaluation of the two competing estimates of lot values and is supported by competent record evidence. See Peters, 697 A.2d at 1258-59.

3. The Mortgage on the Marital Home in Newburgh

[¶ 12] George argues that the court erred in ordering him to assume the $107,000 debt secured by a mortgage on the Newburgh home because the court awarded Robin nonmarital property, while George received only marital property. Robin asserts that it was equitable for the court to order George to assume the debt because the parties did not have a mortgage on the property until they borrowed $120,000, $78,000 of which went to George's Florida businesses.

[¶ 13] We review the apportionment of marital debt according to the same standard we review the division of marital property—abuse of discretion. See Findlen v. Findlen, 1997 ME 130, ¶ 10, 695 A.2d 1216, 1219. Robin testified that prior to marrying George, she took an $8,000 distribution from her trust fund to purchase a home in Winterport. After their marriage, Robin and George sold the Winterport house and used the...