Sulikowski v. Sulikowski

• Decision Date: 10 September 2019
• Docket Number: Docket: Yor-19-57
• Citation: 216 A.3d 893
• Parties: James A. SULIKOWSKI v. Sandra L. SULIKOWSKI
• Court: Maine Supreme Court

216 A.3d 893

James A. SULIKOWSKI

v.Sandra L. SULIKOWSKI

Docket: Yor-19-57

Supreme Judicial Court of Maine.

Submitted On Briefs: June 26, 2019

Decided: September 10, 2019

Gene R. Libby, Esq., and Keith P. Richard, Esq., Libby O'Brien Kingsley & Champion, LLC, Kennebunk, for appellant James A. Sulikowski

Janet K. Kantz, Esq., Vincent, Kantz, Pittman & Thompson, LLC, Portland, for appellee Sandra L. Sulikowski

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

HUMPHREY, J.

[¶1] James A. Sulikowski and Sandra L. Sulikowski each appeal from an order modifying child support and spousal support entered in the District Court (Biddeford, Cantara, J. ), each asserting that the court erred in determining the parties' incomes, modifying the child and spousal support orders, and denying his or her request for attorney fees. We discern no error except in the court's calculation of the child support obligation, vacate and remand the child support order to be corrected by the court, and affirm the judgment in all other respects.

I. BACKGROUND

[¶2] Viewed in the light most favorable to the court's judgment, the record supports the following facts. McBride v. Worth , 2018 ME 54, ¶ 2, 184 A.3d 14. The parties were married in 2000 and divorced in 2014; they have three young children. In the divorce judgment, the court (Biddeford, Douglas, J. ) found that James's income was $98,500 and imputed income to Sandra of $38,000. The divorce judgment also established shared parental rights and responsibilities and shared primary residence, and ordered James to pay child support and spousal support.¹

[¶3] On November 1, 2016, Sandra filed a motion to modify child support, alleging that James's income had increased substantially since the divorce. On February 2, 2018, James filed a motion to terminate spousal support, alleging that Sandra had experienced a substantial change in circumstances in that (1) her income had increased substantially and (2) she had been cohabitating in a mutually supportive relationship functionally equivalent to marriage for twelve of the previous eighteen months. See 19-A M.R.S. § 951-A(12)(2018). The motions were considered at a consolidated hearing on December 20 and 21, 2018.

[¶4] At the hearing on the motions, the court heard testimony from Sandra, Sandra's partner, Sandra's accountant, James, and James's expert witness—a forensic accountant. Sandra testified that her income in each of the prior several years was between $32,483 and $47,713, and that a recent injury had diminished her earning capacity. Applying certain accounting techniques and assumptions to various bank statements and profit-loss data from Sandra's businesses, the forensic accountant estimated that Sandra's annual income likely ranged from $113,174 to $144,501 in the same time period. The court also heard testimony from James and the forensic accountant that James's income, which consists of a base salary and additional income from grants and consulting services, varies from year to year but averaged $120,247 per year from 2014 to 2017.

[¶5] The court found that Sandra's gross annual income is $76,000, "twice the income imputed to her at the time of the divorce." In addition, the court found that Sandra "routinely" underreported her overall income, did not report income from one of her businesses "with any degree of accounting accuracy," and kept records that were "astonishingly and conspicuously lacking in accuracy and reliability." The court found that James's income is $120,247, and denied James's request to terminate spousal support, but reduced his obligation by half, finding that the evidence "falls far short of establishing" that Sandra was in a relationship similar to marriage and that an equitable need for general spousal support persisted.² See 19-A M.R.S. § 951-A (2018).

[¶6] Regarding child support, the court mistakenly calculated James's child support obligation using the figures for two children, instead of three, from the child support table promulgated by the Department of Health and Human Services. See 10-144 C.M.R. ch. 351, ch. 6, § 2 (effective July 29, 2016). Although the court's child support order correctly indicated that sixty-one percent of the children's medical expenses would be allocated to James and thirty-nine percent to Sandra, based on their relative incomes, see 19-A M.R.S. § 2006(4) (2018), the supplemental worksheet attached to that order allocated fifty-one percent of these expenses to James and forty-nine percent to Sandra.

[¶7] From these factual findings, the court (1) modified James's child support obligation; (2) reduced, but did not terminate, James's spousal support obligation and ordered Sandra to repay James $3,750 for his overpayment of spousal support; (3) denied attorney fees to each side; and (4) maintained the other provisions of the underlying divorce judgment.

[¶8] Following the entry of judgment, both parties timely filed motions for further findings and reconsideration. M.R. Civ. P. 52(b), 59(e). The court denied both motions and both parties now appeal.

II. DISCUSSION

A. Motions to Modify

[¶9] James and Sandra both assert that the court made insufficient findings to support its conclusions about their incomes and abused its discretion when it modified the spousal support order. We review modifications to spousal support for an abuse of discretion and a trial court's factual findings regarding substantial changes in circumstances and the parties' incomes for clear error. Ehret v. Ehret , 2016 ME 43, ¶ 14, 135 A.3d 101 ; Ellis v. Ellis , 2008 ME 191, ¶ 15, 962 A.2d 328. In a clear error review, we will vacate a factual finding only if there is no competent evidence in the record to support it, Ehret , 2016 ME 43, ¶ 14, 135 A.3d 101, and will not vacate a judgment simply because the evidence could have supported an alternative finding, Gordon v. Cheskin , 2013 ME 113, ¶ 12, 82 A.3d 1221.

[¶10] In making factual findings, the court must consider all properly admitted evidence and then apply its independent judgment to that evidence in reaching its findings and conclusions. Klein v. Klein , 2019 ME 85, ¶ 6, 208 A.3d 802 (quotation marks omitted). In doing so, a court is "free to accept or reject the testimony of individual witnesses in whole or in part, and it is free to reject testimony that is not contradicted if it finds that testimony incredible." Id. ; see also Theberge v. Theberge , 2010 ME 132, ¶ 18, 9 A.3d 809 ("the trial court is not bound to accept any testimony or evidence as fact"). We do not substitute our judgment for that of the trial court as to the weight and credibility of testimony so long as there is evidence to rationally support the court's result. Cashman v. Robertson , 2019 ME 5, ¶ 12, 199 A.3d 1169.

[¶11] When a party's motion for further findings, M.R. Civ. P. 52(b), has been denied, we cannot infer findings from the evidence in the record. We confine our review to the court's explicit findings and determine whether those findings are supported by the record. Ehret , 2016 ME 43, ¶ 12, 135 A.3d 101 ; Douglas v. Douglas , 2012 ME 67, ¶¶ 26-27, 43 A.3d 965. Although the trial court's judgment must be "supported by express factual findings that are based on record evidence, are sufficient to support the result, and are sufficient to inform the parties and any reviewing court of the basis for the decision," Mooar v. Greenleaf , 2018 ME 23, ¶ 7, 179 A.3d 307 (quotation marks omitted), "there is no requirement that a court identify the reasoning it uses to reach each finding of fact," Theberge , 2010 ME 132, ¶ 18, 9 A.3d 809. Given the nature and scope of the Rule 52(b) motions in this case, we take this opportunity to reiterate that this rule authorizes the filing of only those post-judgment motions that are intended to elicit additional or corrected factual findings that were not contained in the court's initial judgment. These motions "should not be used to attempt to require the court to explain its reasoning in reaching a particular result or to reargue points that were contested at trial and have been resolved by the court's decision." Wandishin v. Wandishin , 2009 ME 73, ¶ 19, 976 A.2d 949.

1. James's Income

[¶12] Sandra argues that the court committed clear error when it determined James's income. Her argument is unpersuasive because the court's finding is supported by competent record evidence. Although Sandra presented evidence that James's income may have been higher than what the court found it to be, there was competent record evidence that supports the court's determination that James's income is $120,247. See Williams v. Williams, 645 A.2d 1118, 1119, 1123 (Me. 1994) (accepting an average of previous years' income); Hale v. Hale , 604 A.2d 38, 41-42 (Me. 1992) (applying average income from previous years determining spousal support obligations); see also Wrenn v. Lewis, 2003 ME 29, ¶ 19, 818 A.2d 1005 (imputing income based on a range of potential earnings). Accordingly, there is no clear error in the court's determination of James's income.

2. Sandra's Income

[¶13] Sandra and James both argue that the court committed clear error in finding that Sandra's gross income is $76,000. The court determined, after "[s]orting through the credible testimony offered" by the forensic accountant, that Sandra's income is $76,000. It also found that Sandra's income was "greater than what [she] would have the court believe," and that Sandra "routinely under-reported ... income."

[¶14] The trial court is the sole arbiter of witness credibility, Cashman , 2019 ME 5, ¶ 12, 199 A.3d 1169, and it is therefore free to accept or reject portions of the parties' testimony based on its credibility determinations and to give their testimony the weight it deems appropriate. Klein , 2019 ME 85, ¶ 6, 208 A.3d 802. The court was not required to find that Sandra's income fell within the ranges offered by any single witness. Cf. Starrett v. Starrett , 2014 ME 112, ¶ 12, 101...