Moulton v. Moulton

• Decision Date: 20 December 1984
• Citation: 485 A.2d 976
• Parties: Bonnie D. MOULTON v. William R. MOULTON.
• Court: Maine Supreme Court

Page 976

485 A.2d 976

Bonnie D. MOULTON v. William R. MOULTON.

Supreme Judicial Court of Maine.

Argued Nov. 14, 1984.

Decided Dec. 20, 1984.

Mittel & Hefferan, Michael Asen (orally), Portland, for plaintiff.

Jackson & Pallas, Ray R. Pallas (orally), Westbrook, for defendant.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, VIOLETTE, WATHEN, and SCOLNIK, JJ.

McKUSICK, Chief Justice.

This divorce action is before us on the appeal of defendant William R. Moulton, who challenges an order of the Superior Court (Cumberland County) affirming the identification and division of marital property and the amount of child support awarded to plaintiff Bonnie D. Moulton in the District Court (Portland) on October 21, 1983. We affirm.

When the parties to this action were married in 1973, the husband owned an electrical contracting business. During the course of the marriage, the assets of the business from time to time required replacement, so that by the time of the divorce hearing substantially all of the assets of the original business had been replaced with new equipment.

Sometime during their marriage, the parties also purchased a home in Windham. The wife testified that the house was paid for with funds acquired during the marriage, while the husband maintained that he made a $5,000 down payment on the house with money that he had had prior to the marriage.

In 1982, the husband entered into an agreement with his aunt, Carolyn Williamson, in which he agreed to do extensive construction and electrical work on her summer camp on Swan's Island in return for a parcel of land there. Under the contract the aunt had no duty to convey the land if the work was not completed by May 31, 1983. By his own estimate, the husband performed 60% of the work stipulated in the agreement, putting $3,000 in materials and 300 hours of labor into the project. At the time of the District Court hearing he had not completed the work. The husband contended that since he had not completed the work on schedule he could not obtain the Swan's Island property from his aunt. The wife argued that there was a substantial probability that the deal would be completed after the divorce.

The District Court granted the divorce sought by the wife, gave her custody of the couple's two children and possession of the house, and required the husband to pay $50 per week per child in child support. It also found that all of the couple's assets, including any rights of the husband as a result of the Swan's Island work, constituted marital property, and apportioned them between the parties. The court also required the husband to pay $450 towards the wife's legal expenses.

The husband argues here that the District Court failed properly to identify marital and nonmarital assets. In particular, he asserts that the District Court erred in characterizing as marital property the equipment of his electrical contracting business, the part of the value of the house attributable to the $5,000 down payment, and any rights he had as a result of work already performed under the Swan's Island contract with his aunt.

Under 19 M.R.S.A. § 722-A(3) (1981), all property acquired during marriage by either spouse is presumed to be marital property, unless it was acquired by a means listed in the preceding subsection (2). ¹ A party who wishes to show that a particular asset acquired during marriage is nonmarital property bears the burden of overcoming the statutory presumption. The showing required to overcome the presumption is one of fact; thus, the decision of the divorce court whether the burden was successfully carried is reviewable only for clear error. See Harmon v. Emerson, 425 A.2d 978, 981 (Me.1981).

The husband asserts that he established that his business equipment was acquired to replace assets he owned prior to the marriage, ² and that the $5,000 payment on the house was made with his own money acquired prior to the marriage. He argues that therefore the court below erred in refusing to classify the equipment and a part of the value of the house as nonmarital property.

The only evidence that the husband offered on those two issues was his own testimony of a conclusory nature. He presented no corroborative documentary evidence. The District Court judge was not bound to credit those conclusory statements. If he did not believe them, then he was required to give effect to the statutory presumption that the entire value of the house and the business assets constituted marital property. It was not clearly erroneous for him to do so.

The husband's next contention is that the District Court was without authority to divide between himself and the wife any remuneration he might receive for work already done for his aunt, because the possible remuneration was not property as of the hearing date. He cites Crooker v. Crooker, 432 A.2d 1293 (Me.1981), and Menor v. Menor, 154 Colo. 475, 391 P.2d 473 (1964), for the proposition that possible future events should not influence valuation of conjugal assets. The Crooker and Menor cases, however, involved situations distinct from the one now before us. Those cases held that a divorce court should not take into account an asset or liability contingent upon some action being taken regarding existing assets, when that action had not yet been put in motion and conceivably never would be. Here, on the other hand, the portion of the work for which an award was made had already been completed. The husband's right to the Swan's Island property, whatever its worth, is akin to a disputed account receivable in his business. Though the husband may not prevail at all on the claim against his aunt, he, on the other hand, may finally be held to be equitably entitled to reasonable compensation for the work already done or may equitably be permitted to complete the work and obtain the promised real estate. Such choses in action are properly within the meaning of section 722-A(2) and fall within the divorce court's broad power to divide marital property. See Zillert v. Zillert, 395 A.2d 1152, 1157 (Me.1978). It has been held elsewhere that "all personal property, tangible and intangible, in which a spouse acquires an interest is includable [as property to be divided by the court]. Choses in action, rights and other interests, the benefits of which may be receivable now and in the future are classifiable as intangible personal property." Kruger v. Kruger, 73 N.J. 464, 375 A.2d 659, 661 (1977). See also Heilman v. Heilman, 95 Mich.App. 728, 291 N.W.2d 183, 185 (1980) ("a spouse's chose in action for personal injuries and the other spouse's per quod claim constitute property subject to such distribution") (quoting DiTolvo v. DiTolvo 131 N.J.Super. 72, 79, 328 A.2d 625, 629 (1974)); In re Marriage of Laster, 643 P.2d 597, 603 (Mont.1982) (nonmarital retirement programs includable, whether or not vested); Stern v. Stern, 66 N.J. 340, 331 A.2d 257, 261 (1975) (value of husband's interest in partnership includes share of accounts receivable, work in progress, and goodwill); Rieger v. Christensen, 529 P.2d 1362, 1365 (Colo.Ct.App.1974) (bonus earned before divorce decree but declared and paid after decree includable as marital property); Riegler v. Riegler, 243 Ark. 113, 419 S.W.2d 311, 314 (1967) (accounts receivable); In re Marriage of Goldstein, 120 Ariz. 23, 583 P.2d 1343, 1345 (1978) (accounts receivable and pension and profit sharing plans in a corporation).

The divorce judgment in the present case provided that "[p]laintiff shall be entitled to one half of any amount of money or in kind payment received by defendant for his work done to date of judgment on the property of Carolyn Williamson of Swan's Island, Maine." That order does not depend upon a certitude that the husband will get anything for his work. It merely gives effect to the basic fairness of granting the wife one half of what was actually earned during the marriage, without burdening the husband in case he never receives compensation from his aunt. There was no error in the District Court's classification as a marital asset of the husband's right to be compensated for the work he performed for his aunt.

The husband also assigns as error the division of marital property fashioned by the District Court. It is within the sound...