Wechsler v. Simpson, Docket No. Cum–15–48.

• Citation: 131 A.3d 909
• Decision Date: 26 January 2016
• Docket Number: Docket No. Cum–15–48.
• Parties: Elena WECHSLER v. John P. SIMPSON.
• Court: Maine Supreme Court

131 A.3d 909

Elena WECHSLER

v.John P. SIMPSON.

Docket No. Cum–15–48.

Supreme Judicial Court of Maine.

Argued: Sept. 16, 2015.

Decided: Jan. 26, 2016.

Karen Frink Wolf, Esq. (orally), and Jonathan M. Dunitz, Esq., Verrill Dana, LLP, Portland, for appellant John P. Simpson.

Margaret C. Lavoie, Esq. (orally), and Elizabeth J. Scheffee, Esq., Givertz, Scheffee & Lavoie, PA, Portland, for appellee Elena Wechsler.

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

HJELM, J.

[¶ 1] John P. Simpson appeals from a judgment of divorce from Elena Wechsler entered in the District Court (Portland, Powers, J. ), after it adopted and modified the report of a referee. Simpson argues that the judgment is affected by error because the referee did not give proper weight and consideration to statutory factors when (1) determining primary residence for the parties' minor children, see 19–A M.R.S. § 1653(3) (2015), and (2) dividing the marital estate, see 19–A M.R.S. § 953(1) (2015). We affirm the judgment.

I. BACKGROUND

[¶ 2] By agreement of the parties, the court (Kelly, J. ) appointed a referee to recommend a judgment in this divorce matter. See 19–A M.R.S. § 252 (2015) ; M.R. Civ. P. 53, 119. After a hearing, the referee found the following facts, which are based on competent evidence in the record and which the court adopted in full with one modification, as discussed below. See Raisen v. Raisen, 2006 ME 49, ¶ 2, 896 A.2d 268.

[¶ 3] Elena Wechsler and John P. Simpson were married in May 2008 and are the parents of two minor children, who were born in July 2009 and November 2011. The family resided in a house in Cumberland Foreside that Simpson had purchased in 2004 for $550,000. In 2011, during the marriage, Simpson refinanced the house and conveyed it to himself and Wechsler as joint tenants. At that time, the house had an appraised value of $690,000.

[¶ 4] Simpson earned advanced degrees in business and law before his marriage to Wechsler. From 1996 until 2012, he ran a successful company, but he was forced to go out of business in 2012 due to a costly lawsuit. He then passed the Maine bar examination and began working part-time for a local attorney, while also searching for more stable employment. Wechsler was gainfully employed as a radiologist throughout the marriage.

[¶ 5] In September 2013, Wechsler moved out of the family home and filed a complaint for divorce. The parties agreed to residential arrangements for their children during the pendency of the divorce action. Wechsler moved for the appointment of a guardian ad litem, see 19–A M.R.S. § 1507(1) (2015) ; M.R. Civ. P. 107(a)(2), and the court (Najarian, M. ) granted her motion in November 2013. Later, in July 2014, the court (Kelly, J. ) granted the parties' joint motion to appoint a referee, see 19–A M.R.S. § 252 ; M.R. Civ. P. 53, 119, and ordered the referee to prepare a report setting forth findings of fact and conclusions of law on "all issues raised by the pleadings." The parties reserved the right to object to the report but agreed that if there were no objections, the court could enter a judgment on the report as filed. See M.R. Civ. P. 53(e)(2).

[¶ 6] The referee held a one-day hearing in August 2014, where both parties and the guardian ad litem testified.¹ Wechsler requested that she be awarded primary residence of the children, asserting that she had been the children's primary caretaker and that Simpson had contributed minimally to the children's care. In contrast, Simpson requested "shared primary residential care," 19–A M.R.S. § 1653(2)(D)(1) (2015), and maintained that he had played a significant role in the children's upbringing.

[¶ 7] During the hearing, the guardian ad litem's report was admitted in evidence without objection. The report substituted for his testimony on direct examination, and he then presented oral testimony and was subject to examination by the parties. In the report and in his testimony, the guardian ad litem stated that although Simpson worked from home, he rarely interacted with his children during the daytime and that two nannies cared for the children almost exclusively until Wechsler returned from work, when she would assume the responsibilities of primary caregiver for the children. In his report, the guardian ad litem also considered "well-established principles of child development" bearing on residence and parent-child issues as applied by the state of Washington. Those principles recommend primary, rather than shared, residence for young children. The guardian ad litem wrote, however, that while Washington's guidelines and the underlying theories of child development are instructive, "we live in the state of Maine, the laws of Washington are not applicable to our laws, and our state should not and cannot follow the laws or guidelines of another state." Either directly or in substance, the guardian ad litem applied each of Maine's best interest factors, see 19–A M.R.S. § 1653(3), and on that basis recommended that in light of the children's young ages and Wechsler's historically greater contributions to their care, they should reside primarily with her.

[¶ 8] In October 2014, the referee filed her report with the court, adopting the guardian ad litem's findings and recommendation that the children should primarily reside with Wechsler. The referee further recommended that the parties share parental rights and responsibilities, and that Simpson have rights of contact with the children at his residence approximately two days each week. Based on the parties' agreement, the referee recommended that Simpson would not be responsible for child support, but to set a baseline for future modifications, the referee found that Wechsler earned $216,000 annually and imputed Simpson's income to be $30,000 annually.

[¶ 9] Regarding the division of the marital estate, the referee found that Wechsler had contributed more toward the acquisition of marital property than Simpson. See 19–A M.R.S. § 953(1)(A). Nevertheless, because of Wechsler's stronger financial position arising from her income and the value of her nonmarital property, see id. § 953(1)(B)–(C), the referee recommended that Simpson receive more than half of the value of the marital estate. Among other things, the referee awarded Simpson the marital residence, which was valued at $690,000 with a mortgage balance of $351,492, leaving equity of approximately $340,000. The referee also assigned Simpson $90,000 in marital credit card debt, which Simpson had accumulated "in part trying to save his business and in part on his living expenses" after the parties separated.

[¶ 10] The referee awarded Wechsler, as nonmarital property, the sum of $93,542 from a USAA savings account. Wechsler owned this account before the marriage, and this was the approximate balance as of the date of the marriage.² The account remained in Wechsler's name alone during the marriage, and as the referee noted, Wechsler testified that the balance never fell below the premarital value. The referee further found that the value of the account increased by approximately $164,000 over the course of the marriage, and that the increase was entirely marital in nature. Of the marital portion of the account, the referee set aside $100,000 to Simpson and the balance to Wechsler. Finally, the referee found that although Simpson had $90,000 in cash when the parties married, he was not entitled to an award in this amount as nonmarital property, because the money had "been spent." In the end, the referee recommended that Simpson receive marital assets and debts with a net value of more than $462,000, and that marital assets with a value of approximately $361,000 be awarded to Wechsler.

[¶ 11] Simpson filed a timely objection to the referee's report after it was filed with the court, challenging the referee's primary residence determination and division of the marital estate. See M.R. Civ. P. 53(e)(2). After a hearing, the court (Powers, J. ) entered an order in January 2015 denying Simpson's objection but modifying the report by adding a sentence stating that "shared residence" was not in the children's best interests. See19–A M.R.S. § 1653(2)(D)(1). The court adopted the report as modified as a final divorce judgment, from which Simpson timely appealed. See 14 M.R.S. § 1901 (2015) ; M.R.App. P. 2(b)(3).

II. DISCUSSION

[¶ 12] Simpson appeals from aspects of the divorce judgment affecting parental rights and responsibilities and the division of the marital estate. With the exception of his claim of error in the court's modification of the referee's report, his arguments consist of challenges to recommendations made by the referee and adopted by the court. "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." Warren v. Warren, 2005 ME 9, ¶ 19, 866 A.2d 97 ; see also M.R. Civ. P. 52(c). On appeal, a referee's factual findings and choice of remedies based on those findings are entitled to the same degree of deference as those of a trial court. Alexander, Maine Appellate Practice § 424 at 288 (4th ed.2013). The referee's findings are "entitled to very substantial deference because [the referee was] able to appraise all the testimony of the parties and their experts." Grant v. Hamm, 2012 ME 79, ¶ 6, 48 A.3d 789 (quotation marks omitted). Because the court accepted the referee's report and incorporated its findings and conclusions into its judgment, we review the referee's factual findings for clear error, and her recommendations regarding parental rights and the division of the marital estate for an abuse of discretion. See Young v. Young, 2015 ME 89, ¶¶ 5, 13, 120 A.3d 106 (describing the standard by which this Court reviews a trial court's findings and conclusions); Warren, 2005 ME 9, ¶¶ 44–47, 866 A.2d 97 (applying the same standard of review to the findings and conclusions of a referee).

A. Primary Residence

[¶...