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Sanders v. Sanders
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 100
Docket:	Cum-97-91
Argued:	September 5, 1997
Decided:	May 6, 1998

Panel:  WATHEN, C.J., and ROBERTS, RUDMAN, DANA, and LIPEZ, JJ.




SUSAN C. SANDERS v. HERBERT L. SANDERS

DANA, J.

	[¶1]  Herbert L. Sanders appeals from the judgment entered in the
Superior Court (Cumberland County, MacNichol, J.) denying his motion to
dissolve an ex parte order for trustee process pursuant to M.R. Civ. P. 4B(j).{1} 
On appeal Herbert argues:  (1) the court cannot issue an order for trustee
process 30 months after final judgment; (2) even if such trustee process is
available, Susan failed to present sufficient specific facts to carry her burden
at the hearing on his motion to dissolve; (3) the court did not have personal
and subject matter jurisdiction to issue the order; (4) the court erred in
concluding that the proceeds of Herbert's disability policy were not exempt;
and (5) the court's misstatement of fact in its order denying Herbert's
motion to dissolve the trustee process rendered that order invalid.  Finding
no error we affirm the judgment below and remand to give Herbert the
opportunity to establish the exempt status of a portion of the disability
payments.
	[¶2]  Herbert and Susan Sanders were divorced in California in
December 1988.  Pursuant to the divorce judgment Herbert was ordered to
pay to Susan $26,000 in 13 monthly payments.  Herbert left California and
failed to make any of the payments.  In 1993 Susan learned that Herbert had
relocated to Maine and she filed suit in the Superior Court in Cumberland
County to enforce the California judgment.  Although Herbert now claims he
established a new domicile somewhere in Georgia in the summer of 1993,
he filed an answer and counterclaim in January 1994, without challenging
the court's in personam jurisdiction.  Herbert and Susan entered into a
consent judgment in May 1994 whereby Herbert agreed to pay to Susan the
arrearage plus accumulated interest.  Herbert failed to make any payments
under that judgment.
	[¶3]  In 1996 Susan learned that Herbert had a disability insurance
policy issued by Provident Life and Accident Insurance Company.  In October
1996 Susan filed an ex parte motion for trustee process to attach benefits
paid by virtue of the policy, which the court granted.  Susan served the
trustee summons on Provident through the Maine Superintendent of
Insurance.  In response Provident filed an affidavit stating that Herbert has a
policy issued by Provident paying him $3,150 per month for life or until
such time as he is no longer eligible to receive the disability payments.
	[¶4]  Herbert filed a motion in January 1997 to dissolve the trustee
process, claiming that the policy was a disability benefit exempt from
trustee process, that Susan's affidavit in support of the motion for trustee
process failed to provide specific facts that supported issuance of an ex 
parte order, and that trustee process was not available 30 months after final
judgment.
	[¶5]  The court denied Herbert's motion to dissolve the trustee
process, finding that the principal and interest then owed to Susan by
Herbert amounted to approximately $40,000, that Herbert was receiving
disability insurance payments, and that the disability insurance payments
were exempt only to the extent that Herbert could establish his reasonable
need for them.
I. Post-judgment Trustee Process
	[¶6]  Herbert conceded in his brief and at oral argument that trustee
process may be used after judgment.  He challenges only the time frame
within which the court acted.{2}  Herbert has articulated, however, no
principled reason why, if trustee process is available after judgment, 30
months is too long after judgment for it to issue.  Any delay in the issuance
of trustee process is attributable to Herbert's actions.  He failed to make any
of the payments required under the California judgment and failed to notify
Susan of his new address in Maine.  He failed to make any payments to Susan
required under the Maine consent judgment and failed to provide Susan
with a new address after leaving Maine.  Herbert claims he no longer resides
in Georgia, but he has not informed Susan where he now resides.  Herbert
has not provided any compelling basis on which to vacate the court's
dismissal of his motion to dissolve the trustee process, and we decline to do
so.
II. Sufficiency of Facts to Sustain the Trustee Process
	[¶7]  Herbert claims that Susan failed to "go forward" at the hearing
on his motion to dissolve the ex parte order for trustee process.  At a
hearing on such a motion "the plaintiff [has] the burden of justifying any
finding in the ex parte order that the moving party has challenged by
affidavit."  M.R. Civ. P. 4B(j).  In its ex parte order the court found that "it is
more likely than not that [Susan] will recover judgment . . . in an amount
greater than $40,000" and that "there is a clear danger that if and when
[Herbert] finds out [Susan] is seeking the attachment, he may attempt to
conceal [the disability policy]."  Herbert did not challenge either of these
findings by affidavit.  Susan, therefore, had no burden to justify them.
III. Jurisdiction and Forum Non Conveniens
	[¶8]  Herbert submitted to the jurisdiction of the court through his
answer and counterclaim.  Pursuant to M.R. Civ. P. 12(h)(1)(B), a defense of
lack of jurisdiction over the person is waived if it is not included in a
responsive pleading or in an amendment thereof permitted pursuant to M.R.
Civ. P. 15(a).  Herbert did not raise this defense in his answer nor did he
request leave to amend his answer.  The claim of lack of personal
jurisdiction is not preserved.
	[¶9]  Herbert also asserts that the court does not have jurisdiction
over Provident.  Assuming for the sake of discussion that Herbert has
standing to contest the court's jurisdiction over Provident, Herbert's
assertion is without merit.  Any foreign corporation having a place of
business or doing business in Maine may be summoned as trustee.  14
M.R.S.A. § 2608 (1980).  Herbert acknowledges in his brief that Provident
does do business in Maine and Provident was successfully served through
the Superintendent of Insurance.
	[¶10]  Herbert argues that the court lacked subject matter
jurisdiction.  A court may entertain at any time a challenge to its subject
matter jurisdiction.  Dillon v. Johnson, 322 A.2d 332, 335 (Me. 1974). 
Trustee process is ancillary to the underlying action.  See 6 Am. Jur. 2d
Attachment and Garnishment § 23 (1963).  Therefore Herbert's attack on
subject matter jurisdiction relates to the underlying action to enforce the
California judgment.  Whether a Maine court has authority to enforce an
order to pay alimony depends on whether the plaintiff has a vested interest
in the arrearage.  See Tapman v. Tapman, 544 A.2d 1265, 1268 (Me. 1988). 
We have stated the general rule that "'the right to installments of alimony
. . . becomes absolute and vested as they become due.'" Id. (quoting Wilson v.
Wilson, 143 Me. 113, 115, 56 A.2d 453, 455 (1947) (citing Sistare v.
Sistare, 218 U.S. 1, 16-17 (1909))).  We have stated that once due, the right
to these payments "is protected by the full faith and credit clause of the
federal constitution."  Wilson v. Wilson, 143 Me. at 115, 56 A.2d at 455.  All
of the payments to Susan were due prior to her filing of the complaint in the
Maine court, and thus she had a vested and absolute right to receive the
payments at that time.  Maine courts do have the authority and the obligation
to enforce a final judgment of a sister state.  U.S. Const. art. IV, § 1; 14
M.R.S.A. § 8001-8008 (1980).
	[¶11]  Herbert did not raise the issue of forum non conveniens prior
to filing his appeal with this Court.  When "there is no indication in the
record that [the] issue [of forum non conveniens] was either raised,
discussed or ruled upon below . . . the point is [not preserved]."  Margani v.
Sanders, 453 A.2d 501, 504 (Me. 1982) (citing M.R. Civ. P. 12(h)(1)). 
Further, although Herbert claims that he is no longer a domiciliary of
Georgia, he has not informed the Court where his current domicile is, nor
has he suggested an alternate forum that is more convenient for him. 
Herbert's claim of forum non conveniens is not preserved.
IV. Exempt Status of the Disability Policy
	[¶12]  Herbert argues that the payments he receives under his
disability insurance policy are exempt pursuant to 14 M.R.S.A. § 4422 (Supp.
1997).  The statute distinguishes between disability benefits, which are
entirely exempt, section 4422(13)(C), and disability pensions and annuities,
which are exempt only to the extent that they are reasonably necessary to
support the debtor, section 4422(13)(E).{3}  State authority interpreting
these statutory provisions is nonexistent and resort to authorities
interpreting their federal counterparts is necessary.  See In re Bates, 176
B.R. 104, 106 (Bankr. D. Me. 1994).  Whether Herbert's disability policy falls
within subsection (13)(C) or (13)(E) is a question of law.  See id. at 107.
	[¶13]  The federal counterpart to section 4422(13)(C), 11 U.S.C.
§ 522(d)(10)(C) (1997), was intended to encompass "[t]emporary
contractual benefits, most of which will arise from the debtor's
employment."  2 Norton, Norton Bankruptcy Law and Practice § 46:17, at
46-34 (2d ed. 1994).  For example, workers compensation benefits, which
compensate an injured worker for loss of current wages, have been held to
fall under subdivision 10(C).  See, e.g., In re Williams, 181 B.R. 298 (Bankr.
W.D. Mich. 1995); In re LaBelle, 18 B.R. 169 (Bankr. D. Me. 1982).  The
federal counterpart to section 4422(13)(E), 11 U.S.C. § 522(d)(10)(E)
(1997), was intended to encompass more permanent forms of payments
akin to future earnings, including pensions and annuities paid for by the
policy holder.  2 Norton at 46-35; see also In re Pettit, 61 B.R. 341 (Bankr.
W.D. Wash. 1986).  For example, individual retirement accounts paid for by
the debtor have been held to fall under subdivision (10)(E).  See e.g., In re
Bates, 176 B.R. at 106; In re Hickenbottom, 143 B.R. 931 (Bankr. W.D. Wash.
1992); In re Yee, 147 B.R. 624 (D. Mass. 1992).
	[¶14]  The only evidence describing Herbert's disability policy is the
affidavit provided by Provident, which states that Herbert is eligible to
receive payments under the policy for life or until he is no longer eligible to
receive the benefit.  Aside from his bald assertion that his policy is fully
exempt, Herbert did not provide any evidence to support this contention. 
Most notably, Herbert did not provide the court with a copy of the policy.
	[¶15]  The evidence concerning the policy indicates that it provides
Herbert with an indefinite stream of payments, akin to future earnings, on
account of his disability.  Therefore, as a matter of law, these payments fall
under 14 M.R.S.A. § 4422(13)(E) and are exempt only to the extent
reasonably necessary for Herbert's support.
	[¶16]  Herbert also argues that, if the court was correct in ruling that
his disability benefits are exempt only to the extent reasonably necessary for
his support, he was denied the opportunity to present evidence of his need. 
The court's order denying Herbert's motion to dissolve trustee process
leaves open to Herbert the option to present such evidence and we remand
for that limited purpose.
V. Misstatement of Fact
	[¶17]  Herbert asserts that the order denying his motion to dissolve
should be vacated because of the court's erroneous statement that, at the
time of the consent judgment, both Herbert and Susan were residents of
Maine.  As discussed previously, the court had jurisdiction in this matter. 
Therefore, such a misstatement of fact by the court constitutes harmless
error; because it does not affect the substantial rights of the parties it should
be disregarded.  M.R. Civ. P. 61.
	The entry is:
Remanded to the Superior Court for hearing
on the issue of the partial exemption of
defendant Herbert Sanders's disability policy,
pursuant to 14 M.R.S.A. § 4422(13)(E).  As so
modified, the judgment is affirmed.

Attorney for plaintiff: Michael P. Asen, Esq. Peter G. Cary, Esq., (orally) Mittell, Asen, Huter & Cary, LLC P O Box 427 Portland, ME 04112-0427 Attorney for defendant: Matthew S. Goldfarb, Esq., (orally) P O Box 15007 Portland, ME 04112-5007
FOOTNOTES******************************** {1}. An ex parte order granting attachment pursuant to M.R. Civ. P. 4A was granted at the same time as the order for trustee process. Herbert owned no property in Maine that could have been attached and the sole focus on appeal to this Court is the propriety of the order for trustee process. {2}. We do not propose to resolve the apparent conflict between United Air Lines. Inc. v. Hewins Travel Consultants, Inc., 622 A.2d 1163, 1171 (Me. 1993) ("there is . . . no. . . statutory authority for [post-judgment] attachment by trustee process") and State v. Miller, 645 A.2d 1140, 1141 (Me. 1994) ("the Rules of Civil Procedure permit a party that obtains a civil judgment to secure satisfaction of that judgment through a trustee process"). Herbert did not reference either decision in his brief and argument before this Court. We base our decision solely on the timeliness argument presented by Herbert. {3}. 14 M.R.S.A. § 4422 provides in relevant part: The following property is exempt from attachment and execution, except to the extent that it has been fraudulently conveyed by the debtor. . . . . 13. Disability benefits; pensions. The debtor's right to receive the following: . . . . C. A disability, illness or unemployment benefit; . . . . E. A payment or account under a . . . pension, . . . annuity, . . . or similar plan or contract on account of . . . disability, . . . to the extent reasonably necessary for the support of the debtor and any dependent of the debtor[.]