Riemann v. Toland
| Decision Date | 15 February 2022 |
| Docket Number | Docket: Sag-21-77 |
| Parties | Helge RIEMANN v. Kristina A. TOLAND |
| Court | Maine Supreme Court |
Keith P. Richard, Esq. (orally), Libby O'Brien Kingsley & Champion, LLC, Kennebunk, for appellant Helge Riemann
Kenneth P. Altshuler, Esq. (orally), Childs Rundlett & Altshuler, Portland, for appellee Kristina A. Toland
Panel: STANFILL, C.J., and MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
[¶1] In this appeal, we consider whether a provision in a premarital agreement waiving the parties’ right to seek attorney fees is enforceable when the parties litigate the best interest of their child.
[¶2] Helge Riemann appeals from a divorce judgment entered by the District Court (West Bath, Raimondi, J. ) in which the court adopted a referee's findings and recommendations that Kristina A. Toland be awarded (1) primary residence of the parties’ minor child even if Toland relocates from Maine to Ohio and (2) attorney fees. Because we conclude that the referee did not err or abuse her discretion in determining the child's primary residence and that the attorney-fee-waiver provision in the parties’ premarital agreement is unenforceable as applied to their litigation of parental rights, we affirm the judgment in all respects.
[¶3] On October 25, 2018, Riemann filed a complaint for divorce. Toland answered and counterclaimed, requesting, in part, that the court determine the parties’ parental rights and responsibilities and allocate attorney fees. In February and August 2019, the court held two interim hearings pending final resolution of the divorce. After the first interim hearing, held on February 11, 2019, the court (Adamson, M. ) entered an order pending divorce that, in relevant part, awarded primary residence of the child to Toland while also setting a contact schedule for Riemann. The focus of the second hearing was Toland's desire to continue to have interim primary residence of the child and relocate, with the child, to Ohio.1
[¶4] In December 2019, Toland filed a motion for prospective attorney fees, arguing that a provision in the parties’ premarital agreement waiving their rights to seek attorney fees from the other party was void and unenforceable because it "limits the ability of a spouse to effectively litigate the issue of custody or support." In April 2020, pursuant to a written stipulation and agreement of the parties, the court appointed a referee "to conduct all future proceedings in this case."
[¶5] In May 2020, Toland filed a motion in limine seeking an order allowing her "to request an award of reasonable attorney's fees ... incurred litigating issues of parental rights and responsibilities." Riemann opposed both motions, arguing that a waiver of attorney fees in the parties’ premarital agreement was enforceable under Maine law.
[¶6] In June 2020, a three-day final hearing was held before the referee. The focus of the proceeding was again Toland's desire to be awarded primary residence of the child even if she relocated to Ohio. The referee issued a report in September 2020 and made the following findings, which are supported by competent evidence in the record. See Akers v. Akers , 2012 ME 75, ¶ 3, 44 A.3d 311.
[¶7] In 2012, Toland moved to Maine for a teaching position as a postdoctoral fellow at Bowdoin College.2 Sometime thereafter, she met and began a relationship with Riemann, who had a successful medical practice in Brunswick.
[¶8] In January 2015, Riemann and Toland, each represented by separate counsel, executed a premarital agreement that included a provision requiring each party to "bear their own costs and attorney's fees in the event ... either party file[d] a Complaint."3 Riemann and Toland were married approximately two weeks after executing the premarital agreement.
[¶9] Following the birth of their child in early 2015, Toland took an eight-week maternity leave from her teaching position, and Riemann reduced his work schedule. At the conclusion of Toland's leave, Toland and Riemann decided that Toland would stay at home and care for the child full-time rather than return to work.
[¶10] After Riemann filed for divorce, Toland informed him that she wanted to relocate to Ohio and return to teaching at the college level. Her prospects for employment in her field are greater in Ohio, where Toland's parents live and where she and the child would have family support while living with them. Toland is committed to facilitating contact between the child and Riemann, and she acknowledged that she would not relocate if the child could not accompany her to Ohio. Riemann sought either primary or shared primary residence in Maine, proposing that he hire a nanny as necessary for childcare. Both parents love the child, want what is best for the child, and can meet the child's daily needs.
[¶11] The child was five years old at the time of the trial and, although she was attending a pre-kindergarten school in Freeport, did not have close relationships in her community. Toland has historically performed most of the caretaking for the child, and the child has strong bonds with both parents. The hardest loss for the child if Toland moved to Ohio would be the loss of frequent contact with Riemann, though the GAL opined that the child would adjust more easily to the loss of frequent contact with Riemann than she would to a loss of frequent contact with Toland.
[¶12] The referee submitted her report to the District Court on September 8, 2020. The report reflects the referee's full consideration of the statutory factors relevant to application of the standard governing the determination of the best interest of the child, see 19-A M.R.S. § 1653(3)(A)-(B), (E)-(F), (H), (N) (2021), and of all the evidence, including the opinion of the GAL and competing testimony offered by the parties’ experts regarding the potential effect relocation could have on the child's psychological well-being.
[¶13] The referee concluded that it was in the child's best interest to live primarily with Toland in Ohio while maintaining contact with Riemann. The referee also determined that, in the circumstances of this case, Toland should be awarded attorney fees because the parties’ waiver in their premarital agreement of the right to seek attorney fees was against public policy and therefore unenforceable. In response to the referee's report, Riemann filed motions to amend, to reconsider, and to make further findings, which the referee denied.
[¶14] Riemann filed an objection to the referee's report with the court, challenging the referee's award to Toland of (1) primary residence of the child in Ohio and (2) attorney fees. Following a hearing on February 11, 2021, the court (Raimondi, J. ) adopted the referee's report in its entirety and entered it as a final judgment that same day. The court concluded that the referee's findings of fact were not clearly erroneous, M.R. Civ. P. 53(e)(2), and agreed with the referee's legal conclusion as to the unenforceability of the provision for the waiver of attorney fees in the parties’ premarital agreement. Riemann timely appealed. See 19-A M.R.S. § 104 (2021) ; M.R. Civ. P. 123 ; M.R. App. P. 2B(c)(1).
[¶15] "When a trial court accepts a report of a referee, the findings of the referee become the trial court's findings, and we review those findings directly." Wechsler v. Simpson , 2016 ME 21, ¶ 12, 131 A.3d 909 (quotation marks omitted). The referee's findings are entitled to substantial deference because of the referee's opportunity to observe and assess the witnesses’ testimony, and we review the referee's factual findings for clear error. Id. Because a motion for further findings was timely filed and denied, we can consider only the express factual findings of the referee in reviewing the ultimate judgment. Klein v. Klein , 2019 ME 85, ¶ 6, 208 A.3d 802.
[¶16] Riemann contends that the evidence does not support the award of primary residence to Toland in Ohio and that the referee failed to conduct the requisite balancing of constitutional rights, which Riemann argues should be based on whether a parent has compelling reasons for relocation and other "objective" factors. Riemann also contends that the referee's best interest analysis focused only on whether the child should live with Riemann in Maine or with Toland in Ohio and was thus based on the "false premise" that Toland would move to Ohio without the child, which Toland had said she would not do.4
[¶17] We review the referee's recommendation as to parental rights for an abuse of discretion. Wechsler , 2016 ME 21, ¶ 12, 131 A.3d 909. A determination of parental rights and responsibilities must be based on the best interest of the child as that standard is set forth in 19-A M.R.S. § 1653(3). See, e.g. , Vibert v. Dimoulas , 2017 ME 62, ¶ 15, 159 A.3d 325. Applying the best interest standard when parental relocation is at issue, the referee must strike a balance between "a custodial parent's right to engage in interstate travel and to decide where the parent and child will reside[ ] and a non-custodial parent's right to have continuing and meaningful parent/child contact with the child." Light v. D'Amato , 2014 ME 134, ¶ 20, 105 A.3d 447 (quotation marks omitted). The referee must therefore "balance the rights and interests of the parents while taking into full consideration the child's best interest." Low v. Low , 2021 ME 30, ¶ 9, 251 A.3d 735.
[¶18] Here, the referee did exactly that. The referee articulated the specific best interest factors that were important to this case, see 19-A M.R.S. § 1653(3)(A)-(B), (E)-(F), (H), (N), and made findings as to each that are supported by substantial record evidence, including expert testimony assessed and weighed carefully by the referee, see Sloan v. Christianson , 2012 ME 72, ¶ 33, 43 A.3d 978 (...
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