Nilsen v. Hanson

• Decision Date: 14 May 1998
• Citation: Nilsen v. Hanson, 709 A.2d 1190 (Me. 1998)
• Parties: Deborah NILSEN v. Richard HANSON.
• Court: Maine Supreme Court

Page 1190

709 A.2d 1190

1998 ME 109

Deborah NILSEN v.Richard HANSON.

Supreme Judicial Court of Maine.

Submitted on Briefs Dec. 22, 1997.

Decided May 14, 1998.

Deborah F. Nilsen, Scarborough, for plaintiff.

Richard H. Hanson, Scarborough, for defendant.

Before WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.

WATHEN, Chief Justice.

¶1DefendantRichard Hanson appeals from a judgment entered in the Superior Court(Cumberland County, Saufley, J.) affirming a divorce judgment entered in the District Court(Portland, Bradley, J.).He argues, inter alia, that the court erred in determining the marital status of a limited partnership interest and the family residence.Finding no error, we affirm the judgment.

¶2 This lengthy litigation may be summarized as follows: plaintiffDeborah F. Hanson, n/k/a Deborah F. Nilsen, and defendantRichard H. Hanson were married in 1984 and had two children during their marriage.Deborah filed a complaint for divorce in 1992.Judgment was entered in the District Court in 1993, and Deborah appealed that judgment to the Superior Court.In 1994, the Superior Court vacated the judgment and remanded for a new trial.After a second trial, the present judgment was entered in the District Court in 1996.Richard then appealed and the Superior Court affirmed the judgment.He now appeals to this Court.

¶3 Richard first argues that the District Court erred in finding that his limited partnership interest in Howard A. Goldenfarb Associates(HAG) was marital property.The partnership interest was valued at $1,000.The court's "determination of what property is marital or nonmarital is reviewed for clear error, and will not be disturbed if there is competent evidence in the record to support it."Williams v. Williams, 645 A.2d 1118, 1119-20(Me.1994).Property acquired during the marriage is presumed to be marital property, 19 M.R.S.A. § 722-A(3)(1998), repealed and replaced by P.L.1995, ch. 694, § B-1(effective October 1, 1997), codified as 19-A M.R.S.A. § 953(3), but that presumption can be overcome by a showing that property was received in exchange for property acquired prior to the marriage.19 M.R.S.A. § 722-A(2)(B)(1998), repealed and replaced by P.L.1995, ch. 694, § B-1(effective October 1, 1997), codified as 19-A M.R.S.A. § 953(2)(B).Richard presented testimony that he received the limited partnership interest in exchange for a similar interest in Ram Development.This latter interest had been acquired by him prior to the marriage.Richard and others testified that, notwithstanding contrary documentation, the transaction in substance involved an exchange of one partnership interest for another.The court did not clearly err in rejecting this testimony and accepting the documentation.Because of the statutory presumption, the court did not err in finding that the limited partnership interest in HAG was marital property.

¶4The court divided the $1,000 value of the limited partnership interest equally between the partners, but made no express provision for payment.Because the limited partnership interest could not be assigned without the consent of the general partner, the court's division of the interest must necessarily be read as requiring Richard to immediately pay Deborah the value of the one-half interest, i.e. $500.

¶5 Further, we find no clear error in the court's determination that the family residence had a nonmarital component and a marital component and that the marital component was in the amount of $29,385.Richard purchased the property and built a residence thereon prior to the marriage.At the time of the marriage, the property had an outstanding first mortgage."Since mortgage payments were made during the marriage, the presumption that the property was marital applies."Williams, 645 A.2d at 1122.To overcome the presumption, Richard had the burden of proving the nonmarital portion of the property.Williams, 645 A.2d at 1122.We find no error in the court's calculation of the value of the marital interest by subtracting from the present value of the property the current outstanding first mortgage balance and the value of defendant's nonmarital interest in the property at the time of the marriage.Williams, 645 A.2d at 1120.Nor do we find any error in the court's treatment of the second mortgage, placed on the premises during the marriage.Moreover, without evidence concerning the basis for appreciation in the value of the home, Richard failed to prove that the increased value was not marital.Williams, 645 A.2d at 1121(citingMacdonald v. Macdonald, 532 A.2d 1046, 1050(Me.1987)).Defendant's remaining arguments are without merit and require no discussion.

The entry is:

Judgment affirmed.

CLIFFORD, Justice, concurring, with whom RUDMAN, J., joins.

¶6 Although I cannot disagree that the trial court applied the provisions of 19 M.R.S.A. § 772-A in a technically correct manner, nevertheless, I write separately to state my concern that in litigating what property is marital and what is nonmarital, too little significance is being attached to former section 722-A(2)(E).Former section 722-A now exists as 19-A M.R.S.A. § 953(1998).¹Section 953 provides, in pertinent part, as follows:

§ 953.Disposition of property

....

2.Definition.For purposes of this section, "marital property" means all property acquired by either spouse subsequent to the marriage, except:

....

E.The increase in value of property acquired prior to the marriage.

3.Acquired subsequent to marriage.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 or by the spouses in some form of coownership such as joint tenancy, tenancy in common, tenancy by the entirety or community property.The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection 2.

Section 953(3) operates to raise a presumption that all property acquired subsequent to the marriage is marital.The increase in equity to theretofore nonmarital property resulting from mortgage payments made during the marriage is property acquired during the marriage and becomes marital property.Noyes v. Noyes, 617 A.2d 1036, 1038(Me.1992);Hall v. Hall, 462 A.2d 1179, 1181-82(Me.1983).Similarly, increases in the value of theretofore nonmarital property attributable to the use of marital funds, or to marital effort invested in the property becomes marital, because those increases are property acquired during the marriage within the meaning of section 953(3).Knowles v. Knowles, 588 A.2d 315, 317(Me.1991);Macdonald v. Macdonald, 532 A.2d 1046, 1050(Me.1987).

¶7 When there is an...