Neri v. Heilig, Docket: Kno–16–435

• Decision Date: 06 July 2017
• Docket Number: Docket: Kno–16–435
• Citation: Neri v. Heilig, 166 A.3d 1020 (Me. 2017)
• Parties: Ernest P. NERI v. Kimberly HEILIG
• Court: Maine Supreme Court

166 A.3d 1020

Ernest P. NERI

v.Kimberly HEILIG

Docket: Kno–16–435

Supreme Judicial Court of Maine.

Submitted on Briefs: May 25, 2017

Decided: July 6, 2017

Kelley E. Mellenthin, Esq., Lincolnville Center, for appellantKimberly HeiligSteven C. Peterson, Esq., West Rockport, for appelleeErnest P. Neri

Panel: SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

JABAR, J.

[¶ 1]Kimberly Heilig appeals from a judgment of the District Court(Rockland, Mathews, J. ) divorcing her from Ernest P. Neri, dividing their assets, ordering Neri to pay $2,000 toward Heilig's attorney fees, and ordering him to pay her spousal support for three years.On appeal, Heilig contends that the court clearly erred by finding that real estate purchased by Neri during the marriage is nonmarital property, abused its discretion in calculating her spousal support award, and abused its discretion by awarding her a lesser amount of legal fees than she requested.We disagree and affirm.

I.BACKGROUND

[¶ 2]The court found the following facts, which are supported by competent evidence in the record.SeeBlanchard v. Blanchard , 2016 ME 140, ¶ 3, 148 A.3d 277.Heilig and Neri were married on August 12, 2004.At the time of the marriage, Heilig was a grant writer and consultant for Columbia University, and Neri was a retired teacher.Neri received a monthly pension and, in 2008, began to receive social security payments.Each individually held retirement accounts.After getting married, they moved to Honduras, where they purchased two pieces of real estate and a tool business.

[¶ 3] At some point, the relationship soured and they separated, eventually relocating separately to Maine and selling the Honduras properties and business.Once in Maine, they partially reconciled.Neri purchased and sold a property on Oyster River Road in Warren (the "Oyster River Road" property), and then, in 2010, they purchased as joint tenants a property on Crawford Road in Warren (the "Crawford Road property").They lived in separate quarters at the Crawford Road property until 2014, when, following a complete breakdown of the relationship, Neri purchased and relocated to a multi-unit property in Thomaston (the "Thomaston property").

[¶ 4] Neri purchased the Thomaston property in his own name, using money obtained from his individual retirement account through his State of Connecticut deferred compensation fund, and by obtaining a loan from Camden National Bank.He paid closing costs using funds from his retirement account that he had transferred to Damariscotta Bank & Trust.

[¶ 5] Neri is 72 years old.Due to several medical conditions, he has no earning capacity.His income is $74,000 annually, received solely from retirement and social security funds.Heilig is 67 years old and is a mediator.Her annual income is $35,800.¹

[¶ 6] Heilig filed for judicial separation in October 2014, and Neri filed a complaint seeking divorce in December 2014.Following a hearing in January 2015, the court(Worth, J. ) ordered Neri to pay Heilig $1,000 per month in interim spousal support, to be applied retroactively from October 31, 2014; $2,000 in interim attorney fees; and the mortgage and homeowner's insurance payments on both the Crawford Road property and the Thomaston property.

[¶ 7] Mediations in May and December 2015, and a judicial settlement conference on April 8, 2016, failed to resolve all issues between Neri and Heilig.On May 4 and 5, 2016, a contested divorce hearing was held.By order dated June 21, 2016, the court(Mathews, J. ) consolidated Heilig's judicial separation action with the divorce action and granted the parties a divorce.The court divided their real estate, personal and intangible property, and debt; ordered Neri to pay Heilig spousal support in the amount of $1,000 per month for a period of thirty-six months; ordered Heilig to pay Neri $33,000 to equalize the marital property and debt distribution; and ordered Neri to pay $2,000 toward Heilig's attorney fees, in addition to the previously awarded attorney fees.

[¶ 8] Heilig filed a motion for further findings of fact and conclusions of law pursuant to M.R. Civ. P. 52(b).²The court denied her motion in part and granted it in part: it corrected its previous finding concerning Neri's age, clarified its reasoning concerning personal property values and the division of several items of personal property, and amended the thirty-six-month spousal support term so as to be modifiable.See19–A M.R.S. § 951–A(4)(2016).Heilig timely appealed the divorce judgment.SeeM.R. Civ. P. 2(b)(3).

II.DISCUSSION

[¶ 9] Heilig raises three arguments on appeal.First, she contends that the court clearly erred by finding that the Thomaston real estate is nonmarital property and awarding it to Neri.Next, she contends that the court erred in calculating her spousal support award by awarding the support for too short a period of time and by failing to consider Neri's potential rental income from the Thomaston property.Finally, she argues that the court's order that Neri pay only $2,000 toward her attorney fees was an abuse of discretion because, according to Heilig, that sum was not reasonable in light of the funds she actually expended on legal costs.We address each argument in turn.

A.Classification of Real Estate

[¶ 10]The court's classification of property as marital or nonmarital is a question of fact, Spooner v. Spooner , 2004 ME 69, ¶ 7, 850 A.2d 354, and is reviewed for clear error,³Young v. Young , 2015 ME 89, ¶ 13, 120 A.3d 106."As long as there is competent evidence in the record to support the District Court's characterization, the characterization will be affirmed."Clum v. Graves , 1999 ME 77, ¶ 9, 729 A.2d 900.

[¶ 11]"All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property regardless of whether title is held individually," unless a party demonstrates that it was "acquired in exchange for property acquired prior to the marriage," or for another statutory reason.19–A M.R.S. § 953(2), (3)(2016).

[¶ 12] Here, although the Thomaston property was purchased during the marriage, the court found that it was nonmarital property belonging to Neri alone.

Specifically, the court found, based on competent evidence in the record, seeEfstathiou v. Aspinquid, Inc. , 2008 ME 145, ¶ 35, 956 A.2d 110, that Neri obtained the funds to purchase the Thomaston property from his nonmarital Connecticut retirement deferred compensation fund.Neri closed on the property using those funds and a loan secured in his own name, and made payments on all loans using his personal nonmarital retirement funds.Even where real estate is secured by a mortgage toward which payments are made during the marriage, the presumption that the property is marital may be overcome by a showing that the mortgage payments, as here, were made with nonmarital funds.SeeNoyes v. Noyes , 617 A.2d 1036, 1038(Me.1992);see alsoCoppola v. Coppola , 2007 ME 147, ¶ 19, 938 A.2d 786.Heilig admitted that she did not make a monetary contribution toward the purchase, construction, or maintenance costs of the Thomaston property.The court reasoned, and we agree, that based upon these facts, Neri overcame the presumption of marital property by establishing that the Thomaston property was purchased with and supported by nonmarital funds.

B.Spousal Support Award

[¶ 13] In determining a spousal support award, a court must consider certain statutory factors.19–A M.R.S. § 951–A(2), (5)(2016).These factors include, inter alia, the length of the marriage, each party's ability to pay, each party's age, their employment histories, the health and disabilities of each party, their contributions to the home, and "[a]ny other factors the court considers appropriate."Id.§ 951–A(5).The court"may rely on some factors to the exclusion of others."Jandreau v. LaChance , 2015 ME 66, ¶ 16, 116 A.3d 1273.

[¶ 14]The court here ordered Neri to pay Heilig $1,000 per month in spousal support for a period of thirty-six months and reached its decision based on findings supported by competent evidence in the record.SeeEhret v. Ehret , 2016 ME 43, ¶ 14, 135 A.3d 101("In applying the clear error standard, we will vacate a factual finding if it is not supported by sufficient, competent record evidence.").The court found that Neri has an income of $74,000 from retirement funds and social security payments.It found that Heilig has an income of $13,000 from mediation and imputed $17,800 to her for social security payments for which she is eligible but has yet to opt to receive.The court further found that Neri is unemployable due to health issues, but Heilig could increase her income by taking on additional mediations.As Heilig acknowledges, the court's findings address many of the factors listed in section 951–A(5), including the length of the marriage, the parties' income and income potential, their employment history and education, their health and...