Merrill v. Merrill

• Decision Date: 02 September 1982
• Citation: 449 A.2d 1120
• Parties: Patricia A. MERRILL v. James E. MERRILL.
• Court: Maine Supreme Court

Page 1120

449 A.2d 1120

Patricia A. MERRILL v. James E. MERRILL.

Supreme Judicial Court of Maine.

Argued Jan. 6, 1982.

Decided Sept. 2, 1982.

Law Offices of Daniel G. Lilley P.A., E. Paul Eggert (orally), Portland, for plaintiff.

Campbell & Schmidt, Andrews B. Campbell (orally), Portland, for defendant.

Before McKUSICK, C.J., and GODFREY ROBERTS, CARTER, VIOLETTE and WATHEN, JJ.

GODFREY, Justice.

Defendant James E. Merrill seasonably appeals from a judgment of the Superior Court, Cumberland County, entered on June 5, 1981, which vacated an amended divorce judgment entered in District Court, Portland, on February 17, 1981. The Superior Court was acting as an appellate court in hearing the appeal of plaintiff, Patricia A. Merrill, from the amended judgment. The court found that the divorce court had improperly amended the original divorce decree insofar as it related to the disposition of the proceeds from the sale of the former marital homestead. We affirm the judgment of the Superior Court.

I.

On January 9, 1980, Patricia Merrill filed a complaint for divorce in District Court against her husband, James. On October 21, 1980, the District Court entered a protection-from-abuse order on a complaint filed by the plaintiff pursuant to 19 M.R.S.A. ch. 14 (§§ 761-771) (1981). The order awarded sole custody of the children and possession of the marital house to plaintiff. Defendant was denied visitation rights except upon recommendation and under the supervision of various social service organizations, and was ordered to receive counseling from a social worker, family counseling center, psychiatrist, or other counseling service. Both plaintiff and the two little girls were ordered to receive counseling from the Community Counseling Center in Portland.

After a hearing, plaintiff was granted a divorce from defendant on December 4, 1980, on the ground of irreconcilable marital differences. Plaintiff was awarded custody of the children, and the defendant was prohibited from visiting them except on recommendation of the Community Counseling Center and the Department of Human Services. Defendant was ordered to pay child support of $30 per week per child and to pay for all expenses of health care until the children reached majority.

Upon consideration of the assets of each party and their contributions to the marital property, among other things, the divorce judge ordered that the jointly-held marital house on Columbia Road, Portland, be deeded to plaintiff. She was to assume payment of the primary mortgage debt and all liabilities arising therefrom. In lieu of alimony, the husband was declared to have a $10,000 interest in the marital house. This interest was to be secured by a second mortgage on the house to be granted to him by plaintiff with a $10,000 promissory note bearing eight percent annual interest. The note was to be due on the earliest of the following events: (1) five years from the date of judgment; (2) sale of the house; or (3) refinancing of the house. Personal property and debts were allocated between the parties. Finally, defendant was ordered to pay plaintiff's attorney $700 in counsel fees.

Soon thereafter, divers post-judgment motions were filed by the parties seeking various modifications in the original divorce judgment and in the protection-from-abuse order. All pending motions were consolidated and a hearing was held in District Court on February 3, 1981. On February 17, 1981, the divorce judge entered an amended judgment and restraining order, asserting as the basis for his authority to do so the best interests of the minor children, changed circumstances, M.D.C. Civ. R. 60 and M.R. Civ. P. 60(b)(3) and (6).

In the interval between entry of the original judgment and entry of the amended judgment by the divorce court, plaintiff and the two minor girls had left the State of Maine and moved to Florida. They were therefore no longer living in the Columbia Road house, nor were they undergoing counseling as originally ordered at the Community Counseling Center.

Under the amended judgment, plaintiff was ordered to seek counseling from a named Florida counseling center if she intended to remain in that state. Certain administrative changes were made in the provisions for payment of child support in the original order. The most significant change, however, concerned the disposition of the marital home. Finding that plaintiff no longer needed the Columbia Road house for the welfare of the children because they had moved to Florida, the divorce judge ordered the parties to sell the house. Even though defendant retained his $10,000 interest in the house, the divorce court ordered $15,000 of the net proceeds of the sale to be placed in an interest-earning escrow account. The account was to be maintained for the purpose of compensating defendant for any expenses he might incur in visiting his children in Florida and for the purpose of defraying the costs of any psychiatric care received by the children.

From this amended judgment, plaintiff appealed to the Superior Court. On the basis of the pleadings and the record but without a transcript of the hearing, the Superior Court found that the divorce court had exceeded its authority in amending its original judgment insofar as the marital property was concerned. He ruled specifically that because defendant had failed to file a proper motion for relief from judgment under M.R. Civ. P. 60(b), the divorce court was precluded from altering the marital property judgment. He ruled alternatively that the defendant had not made a sufficient showing of injustice or otherwise met the requirements for granting relief under Rule 60(b).

II.

On appeal, defendant argues that the Superior Court erred in vacating the divorce Court's amended judgment for lack of authority. ¹ Defendant argues, first, that the divorce court possessed the inherent equitable authority to amend its original divorce decree, even if the amendment affects the original disposition or division of marital property; second, that the escrow provision of the amended judgment was not a division of marital property but was rather, by way of construction or interpretation, an award of either alimony or of child support, amendable under 19 M.R.S.A. § 721 or § 752 (1981); finally, that even if the amended judgment changes the division of marital property, it was the result of a proper exercise of the court's discretionary authority under M.R. Civ. P. 60(b). We disagree.

In Maine, the jurisdiction of the divorce court is purely statutory, and its authority to act on matters of divorce must arise out of the statutory law or not at all. Wood v. Wood, Me., 407 A.2d 282, 285-86 (1979). This is not a situation in which the grant of authority by the Legislature to act on a certain matter may bring into play independently based equitable powers of the divorce court, as is the case with the court's power to make decisions in custody disputes. Harmon v. Emerson, Me., 425 A.2d 978, 983-84 (1981). The divorce court was without power, independent of statutory authority, to amend the original judgment as it did.

Under the applicable statutory scheme, the divorce court is empowered to award alimony, set apart to each spouse his or her property, divide the marital property, and order arrangements for the care, custody, and support of the minor children. 19 M.R.S.A. §§ 271, 722-A & 752 (1981). Sections 721 and 752 specifically permit the divorce court to consider post-judgment motions to modify the original divorce decree with respect to alimony and child custody and support if circumstances change after entry of the original decree. Bagley v. Bagley, Me., 415 A.2d 1080, 1082 (1980). Section 722-A, however, contains no similar provision for permitting post-judgment modification of the provisions of the original judgment dividing the marital property.

Apparently recognizing that limitation, the defendant husband submits that the amended judgment did not modify the original division of marital property. He argues that the escrow provision of the amended judgment should be construed as either a change in the award of alimony or a special provision for child support and maintenance and that the amendment of the judgment should be regarded as a proper exercise of remedial authority by the divorce court under 19 M.R.S.A. §§ 721 & 752. ²

In his amended judgment, the divorce judge struck that part of the original decree denominated "Real Estate" and substituted a new paragraph in which he ordered the Columbia Road home to be sold, declared defendant's interest to be $10,000 in lieu of alimony, and ordered the parties to establish the $15,000...