Lindsley v. Lindsley
| Decision Date | 14 August 1978 |
| Citation | 390 A.2d 512 |
| Parties | Patricia C. LINDSLEY v. Frederick O. LINDSLEY. |
| Court | Maine Supreme Court |
Murray, Plumb & Murray by Peter S. Plumb (orally), John C. Lightbody, Portland, for plaintiff.
Kurtz & Myers by Theodore H. Kurtz, South Paris (orally), for defendant.
Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY and NICHOLS, JJ.
The background of this appeal challenging the propriety of the entry of summary judgment against the defendant below is complex.
On August 9, 1971 the parties to this proceeding, Patricia C. Lindsley and Frederick O. Lindsley, were divorced pursuant to a Florida decree. Mrs. Lindsley was awarded alimony of $125 per week. On August 13, 1974, Mrs. Lindsley brought an action in Superior Court in Maine seeking alimony arrearages that had accrued as of that date. Mr. Lindsley counterclaimed in two counts. The first count alleged that a separation agreement survived the divorce and therefore that a smaller amount of alimony was due than the amount Mrs. Lindsley was claiming. This count was eventually resolved in Mrs. Lindsley's favor by our decision in Lindsley v. Lindsley, Me., 374 A.2d 311 (1977), after final judgment on the count had been entered in the Superior Court in compliance with M.R.Civ.P. 54(b). The second count sought reduction of future payments after August 13, 1974 on the ground of changed circumstances. As of the filing of this appeal, no action has been taken on this count.
On July 7, 1977 Mrs. Lindsley filed a complaint in a new action which is the source of this appeal. This new complaint sought arrearages in alimony that had accrued from August 4, 1974 until the date of filing the new action. The complaint was later amended to request a future increase of alimony payments.
In his answer to the amended complaint Mr. Lindsley moved to dismiss on the grounds that his second count in the prior action was still pending. The motion was denied. Mr. Lindsley also denied that he owed the amounts claimed to be due and asserted that his alimony payments should be reduced because of changed circumstances.
Mrs. Lindsley eventually moved for summary judgment in the 1977 action. Her attorney filed an affidavit stating that alimony had accrued and had not been paid. No opposing affidavits were filed. The justice below found that there was no genuine issue for trial and granted the judgment in Mrs. Lindsley's favor.
Following entry of final judgment on the claim for arrearages in accordance with M.R.Civ.P. 54(b), Mr. Lindsley seasonably appealed. He claims as error the denial of his motion to dismiss and the granting of summary judgment against him.
We sustain the appeal on the ground that summary judgment was improperly granted.
Entry of summary judgment under M.R.Civ.P. 56 is only appropriate in cases where there is no genuine issue as to any material fact. E. g. Statler Industries, Inc., v. Board of Environmental Protection, Me., 333 A.2d 703 (1975). As Judge Peters, then Judge of the District Court, District of Maine, observed in Belanger v. Hopeman Bros., 6 F.R.D. 459 (1947),
Its (summary judgment) purpose is to enable parties to a case in court, by filing pleadings, affidavits and admissions, or otherwise, to squeeze out of the case all matters in controversy, except the law, and to authorize the court to give judgment on undisputed facts.
See also, Bradstreet v. Clarke, Me., --- A.2d ----, ---- (1978).
It is apparent from the pleadings 1 in this case that there was a genuine issue of fact regarding the amount of alimony due to Mrs. Lindsley after August 13, 1974. In his answer to the amended complaint Mr. Lindsley alleged:
There has been a substantial change in the circumstances of Plaintiff Lindsley and in the financial affairs of Defendant since August 9, 1971 making future payments in accordance with the Order of that Date unnecessary, unreasonable and unduly burdensome upon Defendant.
Wherefore, Defendant requests this Court to modify the terms of the divorce decree between the parties so as to relieve Defendant from any further or future alimony...
To continue reading
Request your trial
-
Friedlander v. Hiram Ricker & Sons, Inc.
...conclusory in import and does not set forth specific facts admissible in evidence as required by the rule. See Lindsley v. Lindsley, 390 A.2d 512, 513, n. 1 (Me.1978); Richards Realty Co. v. Inhabitants of Town of Castle Hill, 406 A.2d 412 In his counter-affidavit filed May 6, 1983 in oppos......
-
Diversified Foods, Inc. v. First Nat. Bank of Boston
...an affidavit. Many of these statements could not have been based on Giguere's personal knowledge. M.R.Civ.P. 56(e); Lindsley v. Lindsley, 390 A.2d 512, 513 n. 1 (Me.1978). Others consist of legal arguments and conclusions rather than factual allegations. Town of Orient v. Dwyer, 490 A.2d 66......
-
Colby v. York County Com'rs
...In the present context an affidavit is legally insufficient if it is not made on the personal knowledge of the affiant. Lindsley v. Lindsley, Me., 390 A.2d 512 (1978). Also an affidavit made according to the best of the affiant's knowledge and belief is insufficient if the affidavit does no......
-
Karantza v. Salamone
...Summary judgment is appropriate where the pleadings and affidavits reveal no genuine issue of material fact. See Lindsley v. Lindsley, Me., 390 A.2d 512, 513 (1978); M.R.Civ.P. The Superior Court justice erred, however, in granting summary judgment for defendant on the issue of willfulness.......