Young v. Young

• Decision Date: 05 December 1974
• Citation: 329 A.2d 386
• Parties: Marjorie Jane YOUNG v. Nathan T. YOUNG.
• Court: Maine Supreme Court

Page 386

329 A.2d 386

Marjorie Jane YOUNG v. Nathan T. YOUNG.

Supreme Judicial Court of Maine.

Dec. 5, 1974.

Bernstein, Shur Sawyer & Nelson by Sumner T. Bernstein, Eric F. Saunders, Portland, for plaintiff.

Skelton, Taintor & Abbott by Lendall L. Smith, Lewiston, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

WERNICK, Justice.

On April 3, 1971 plaintiff, Marjorie J. Young, who had been previously married and divorced, married the defendant, Nathan T. Young. For approximately two months after they were married the parties lived in a house in South Portland which plaintiff owned by virtue of the property settlement made in her prior divorce. In May, 1971, plaintiff and defendant purchased another house in Cumberland for $24,500.00 and moved into it in early June of 1971. From funds each had acquired before the marriage defendant contributed $11,765.00 and plaintiff $500.00 toward the purchase price of the Cumberland real estate, with the balance coming from a loan, secured by a mortgage, from the Sun Federal Savings & Loan Association. The Association prepared the deed of transfer (as is usual when a lending institution participates in a closing), and a deed conveying to the Youngs 'as joint tenants' was submitted to them.

Defendant balked at accepting this deed, and the closing was adjourned to allow the Youngs opportunity for further consideration of the problem. In the subsequent discussions between plaintiff and defendant, defendant took the position that 'whatever he had bought he had always bought by himself', and plaintiff's view was that 'in a . . . marriage, . . . it should be together, . . . we . . . should be as one'; and she further emphasized to defendant: 'I would rather have it that way or I would rather stay in the home at Broadway.' Ultimately, defendant agreed to accept the 'joint-tenancy' deed, and the closing was completed.

In the house in South Portland was furniture owned by plaintiff which plaintiff brought with her when she moved into the Cumberland house. Other furniture for the Cumberland house was newly bought by the parties. Toward the purchase plaintiff paid $700.00 and defendant $530.00, each using funds acquired prior to the marriage, and an undetermined additional amount came from their joint checking account.

On September 11, 1972 plaintiff instituted the instant action for divorce against defendant in the Ninth District Court, Division of Southern Cumberland. Defendant filed an answer and counter-claim and removed the proceeding to the Superior Court (Cumberland County). ¹

On May 15, 1973 a Superior Court Justice held a hearing on the merits of the divorce, and on August 13, 1973 he received testimony as to the distribution of property. Adjudicating that a divorce be granted to plaintiff, the presiding Justice invoked the provisions of 19 M.R.S.A. § 722- A (hereinafter 'Section 722-A), ² which had become effective on January 1, 1972, to conclude that the real estate in Cumberland and all the furnishings in it were the 'marital property' of the parties. This 'marital property' the Justice 'divided' by: (1) awarding all of the household furniture and furnishings in the Cumberland house to the plaintiff, and (2) ordering the Cumberland real estate to

'be sold and the proceeds divided equally between the plaintiff and the defendant . . . said sale (to) take place as soon as a reasonable price can be secured . . . but in no event later than one year.'

The presiding Justice made no award of alimony to plaintiff and required defendant to pay to the attorney for plaintiff the sum of $750.00 'as and for counsel fees.'

Defendant has appealed, and plaintiff has cross-appealed, from the Superior Court judgment entered on the order of the presiding Justice.

We decide that the appeal of defendant must be sustained because the presiding Justice erred in his conclusions as to 'marital property.' Since reversal of the judgment in this respect has potential impact upon the right of the plaintiff to be awarded alimony, we sustain the cross-appeal of plaintiff.

1. The Appeal of Defendant

Defendant claims that there are two basic errors in the Superior Court judgment. First, defendant says that the presiding Justice violated Section 722-A in deciding that the Cumberland real estate and all the household furniture and furnishings in it were 'marital property' notwithstanding that defendant had contributed from his own property acquired prior to the marriage $11,765.00 toward the purchase of the Cumberland real estate and $530.00 toward the price of the furniture bought during the marriage. Second, defendant makes a contention, not previously raised by him in this cause until he submitted his brief on appeal, that the presiding Justice either: (1) violated Article I, Section 6-A of the Constitution of Maine and the Fourteenth Amendment to the Constitution of the United States by ordering defendant as the 'husband', and without taking into consideration plaintiff's ability to pay her attorney from her own resources, to pay the sum of $750.00, 'as and for' the counsel fees of plaintiff's attorney; or (2) in all the circumstances was guilty of an abuse of discretion in making such order.

1-a

As to whether the order for payment of counsel fees was a constitutional violation or an abuse of judicial discretion, since defendant failed to raise these issues before the presiding Justice and to take the other necessary steps which, as required by sound appellate practice, would properly preserve the questions for appellate review, defendant will not now be permitted a review of them for the first time at the appellate level. That, in one facet, defendant's attack on the propriety of the award of counsel fees purports to assume constitutional dimension does not require that the rules established for the maintenance of sound appellate practice be superseded. Younie v. State, Me., 281 A.2d 446 (1971); Reville v. Reville, Me., 289 A.2d 695 (1972).

The lawfulness of the order for counsel fees is not cognizable in this appeal and, hence, that part of the judgment of the Superior Court remains in full force and effect.

1-b

As to the Superior Court's adjudication concerning 'marital property', defendant maintains that the presiding Justice contravened plain textual language of Section 722-A which, for present purposes, makes two facts, without more, determinative of whether or not property is 'marital,' These facts, says defendant, are: (1) such property as was acquired by either spouse after the marriage is, 'presumably', 'marital property' (Section 722-A, subds. 2 and 3) but (2) to the extent it has been 'acquired in exchange for property (of either spouse) acquired prior to the marriage', the 'presumption' is 'overcome' (Section 722-A, subds. 2 and 3) and, as a matter of law, the property cannot be 'marital property.'

Defendant maintains that, here, the Cumberland real estate and the furnishings contained in it, albeit 'presumably' 'marital property' insofar as acquired subsequent to the marriage, cannot eventuate as 'marital property' because the 'presumption' has been 'overcome' per se (no other considerations being material) as to the $11,765.00 worth of the real estate and the $530.00 worth of said furnishings 'acquired in exchange for property acquired (by defendant) prior to the marriage.'

While acknowledging that the textual language of Section 722-A 'on its face . . . seemingly supports' defendant, plaintiff answers defendant's position with the contention that the surface absoluteness of the statute should be qualified by judicial interpretation to fulfill a 'spirit' plaintiff purports to find, by analogy, in the law of 'community property' as claimed by plaintiff to provide 'the ancestral roots' of Section 722-A.

Thus, argues plaintiff, since Section 722-A states expressly that the concept of 'marital property' has applicability 'for purposes of this section only', that concept, and its legal consequences, are operative only in relation to judicial dispositions of property made incident to the dissolution of marriage or the adjudication of a legal separation. Plaintiff believes, therefore, that it is consistent with Section 722-A that the spouses be held free, by transactions with others, or themselves, during the course of the marriage, to affect (as if unmarried) the legal consequences of their ownership of property; and, hence, implicit in Section 722-A, by analogy to the principle of 'transmutation' operative in 'community property' systems, is the qualification that by an exercise of actual intention objectively manifested either spouse may 'transmute' into 'marital property' that which, in the absence of such exercise of intent to the contrary, Section 722-A would categorize as other than 'marital property.'

Since, here, the presiding Justice offered only an ultimate legal conclusion without supporting reasons or specific findings of fact, plaintiff contends that under Jacobs v. Boomer, Me., 267 A.2d 376 (1970) this Court is required to sustain the trial Justice's decision by resort to the legal rationale of 'transmutation' as warranted by facts which the presiding Justice could properly have found on the present record.

We conclude that the appeal of defendant must be sustained notwithstanding plaintiff's argument predicated on an asserted 'transmutation' and, indeed, without need that we here decide whether a principle of 'transmutation', as borrowed from 'community property' systems, shall be engrafted upon the 'marital property' structure established by Section 722-A.

Hypothesizing, without deciding, that Section 722-A tolerates 'transmutation', we turn to the crucial question of whether defendant had in fact objectively manifested actual intention to change the nature of the ownership consequences (as 'non-marital') legally attaching in the absence of defendant's exercise of intent ³ into the ownership...