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Lee v. Maier
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MAINE SUPREME JUDICIAL COURT						Reporter of Decisions
Decision: 	1999 ME 62
Docket: 	Han-98-456
Argued:	April 5, 1999
Decided:	April 26, 1999




	[¶1]  Samford Maier appeals from the judgment entered in the
Superior Court (Hancock County, Marsano, J.) amending his obligation to pay
child support to his ex-wife, Stephanie Lee.  Maier contends the trial court
exceeded the bounds of its discretion or committed clear error by finding
that attending a remedial private school is in his child's best interest, in its
determination of both his income and the cost of his son's tuition, and in
modifying his child support responsibilities.  In addition, he asserts the trial
court erred by retroactively ordering the modifications to the divorce
decree.  We conclude the trial court improperly modified its judgment
retroactively, but otherwise affirm.
	[¶2]  Maier and Lee divorced in 1994 after nineteen years of marriage. 
In the divorce settlement, Lee received the marital home in Stonington,
worth $925,000, where she continues to live with their two sons.  The trial
court awarded primary residence of their two children to Lee, and Maier,
who now lives in Wisconsin, and has assets of $2 million, agreed to pay child
support.  One of their children is dyslexic.  
	[¶3]  Although the parties dispute who made the original decision, Lee
arranged for the transfer of their son from a public school in Stonington to
the private Landmark School in Massachusetts for sixth grade.  Landmark's
curriculum is designed to address the specific needs of dyslexic children,
and Lee felt the change was in their son's best interest.  He has attended
Landmark since the 1995-1996 school year.  Tuition at the school is costly,
ranging from $33,400 during his first year to $34,125 for the 1997-1998
academic year. 
	[¶4]  On May 1, 1996, Lee filed a motion to enforce the divorce
judgment and for support arrears, contending that Maier was obligated to
share the cost of Landmark because it fell under a provision in the divorce
decree that they would divide equally all medical costs for their sons.   On
October 23, 1996, Lee filed a second motion to amend the original motion,
this time specifically seeking to modify the child support order pursuant to
19-A M.R.S.A. § 2009(1) (1998).  In the second motion, Lee relied on 19-A
M.R.S.A. § 2007(3)(H) (1998), which allows a trial court to depart from the
child support guidelines for the educational needs of a child. 
	[¶5]  After an evidentiary hearing, the trial court modified the child
support decree by ordering Maier to pay ninety per cent of the gross
expenses for Landmark.  It specifically made the modification retroactive to
the date Lee filed her motion for support arrears.  Maier then filed this
	[¶6]  Because we give substantial deference to the trial court in
determining child support obligations, we review for an abuse of discretion
and will vacate the court's decision "only if it violates 'a positive rule of law'
or 'results in a plain and unmistakable injustice, so apparent that it is
instantly visible without argument.'"  Hedrich v. Hedrich, 1998 ME 248,
¶ 2, 720 A.2d 1157, 1158 (quoting Fowler v. Fowler, 1997 ME 231, ¶ 6,
704 A.2d 373, 374-75).  When, however, the trial court's determination of
factual matters is clearly erroneous, we will vacate provided the factual error
was not harmless.  See Moore v. Moore, 609 A.2d 723, 724 (Me. 1992).
	[¶7]  Maier contends that the trial court exceeded the bounds of its
discretion by concluding that attending Landmark is in his son's best
interest.  There is, however, substantial evidence in the record to justify the
trial court's finding.  First, both Lee and a clinical neuropsychologist
testified that the parties' son was struggling academically at the public
school in Stonington.  Lee stated that in the past the public school removed
her son from his regular classes for special education instruction, and never
gave him one on one tutorials.  The director of Special Services for
Stonington's school union testified that only one teacher at each the middle
and high school levels is trained to deliver the kind of structured multi-
sensory approach a dyslexic child needs, and that tutorials would not be as
intensive as they were at Landmark.  
	[¶8]  Second, the evidence suggests that the parties' son is thriving at
Landmark.  Students are placed in small classes with children of the same
ability, and therefore teachers can address their general needs as part of the
course instruction.   In addition, each student receives individual tutoring
every day for forty-eight minutes to address his or her specific needs.  Lee
testified that her son's confidence has improved greatly since his
enrollment at Landmark, that he can now recognize his academic strengths
and weaknesses, and pushes for new challenges in his curriculum as needed. 
A school administrator stated that the parties' son has made good progress,
but added that he continues to need the small classes to keep him involved
and challenged.  In addition, the child has expressed a desire to stay at
Landmark because he believes the small class size and individual attention
are helping him improve more rapidly than at Stonington.
	[¶9]  Third, it is clear that their son was struggling at Stonington
because of his dyslexia, and that the curriculum at Landmark is specifically
designed to address his needs.  It is also clear that he has prospered there
and wants to continue attending the school.  Contrary to Maier's contention,
the availability of a public education program and extensive federal and state
guidelines regarding special education does not preclude a parent's decision
to place a child in a private school.  See Sikes v. Sikes, 391 S.E.2d 855, 858
(N.C. Ct. App. 1990).   Given the special circumstances of this case, we
conclude that the trial court did not exceed the bounds of its discretion by
finding that attending Landmark is in the child's best interest.  See In re
Marriage of Aylesworth, 165 Cal. Rptr. 389, 394 (Cal. Ct. App. 1980)
(affirming order of child support to cover private school expenses due to
special circumstances).  
	[¶10]  Maier argues that the trial court committed clear error when it
determined his income and the cost of attending Landmark, and then
exceeded the bounds of its discretion when using those figures to require
that he pay ninety per cent of the gross expense.  With respect to income,
Maier contends that the trial court erred by choosing not to include a
substantial capital gain when calculating Lee's income, but making no similar
adjustment when calculating his income.  Lee presented evidence that the
capital gain in question was a one-time event as a result of liquidating
multiple investments to pay for the first year of tuition at Landmark.  The
child support statute, however, expressly defines gross income as "income
from an ongoing source."  19-A M.R.S.A. § 2001(5)(A) (1998).  In contrast,
Maier's financial records, admitted in evidence, show that he regularly has
substantial income from capital gains.  Therefore, the trial court's
determination that he had roughly ninety per cent of their combined
income was not clearly erroneous.
	[¶11]  Maier also contends that the trial court erred by failing to
account for the substantial tax benefit to Lee of including the cost of
Landmark as a deduction on her federal income tax return.{1}  While tuition at
Landmark is roughly $34,000 per year, Maier asserts the real cost to Lee is
only about $21,000 because of the deduction.  This, he argues, results in a
windfall for Lee.  The trial court, however, went on to examine Lee's
expenses, including her household budget, real estate taxes, and travel costs
to and from Landmark, and concluded that the difference between her
expenses and the child support she received was equivalent to the amount
Maier claims is a windfall from the tax deduction.  Therefore, contrary to
Maier's contention, the trial court properly accounted for the tax
consequences to Lee of deducting Landmark's tuition.
	[¶12]  The court specifically based its decision that Maier must pay
ninety per cent of the gross expenses for Landmark on the ratio of income
between the parties.  In connection with the special circumstances of this
case, by correctly determining Lee and Maier's respective incomes and
appropriately considering the tax benefits of deducting Landmark's cost, we
cannot say the trial court exceeded the bounds of its discretion on this
point.  The trial court could have properly found that Lee has met her
burden of proof under Absher v. LaCombe, 432 A.2d 1241, 1242-43
(Me. 1981) (interpreting 19 M.R.S.A. § 752, amended by 19-A M.R.S.A.
§ 2009(1)).  First, the opportunity to attend Landmark is a changed
circumstance whose substantial cost renders the child support payments
under the original divorce decree inadequate.  See id.  Second, it is clear
that Maier has the financial resources to meet the required increase. 
See id. at 1243.  
	[¶13]  Finally, Maier contends that the trial court erroneously applied
the modification retroactively to the date of Lee's original motion filed in
May 1996.  Pursuant to 19-A M.R.S.A. § 2009(2), courts may apply support
orders retroactively from the date the notice of a petition for modification
was served on the opposing party.  In this case, two motions were filed.  The
first sought support arrears based on the divorce order that the parties
would split the children's medical expenses, while the second was a motion
to amend the original motion, and argued support should be modified due to
the educational needs of the parties' son.  Maier contends only the second
was properly a "petition for modification" within the meaning of
section 2009(2). 
	[¶14]  The trial court concluded the second motion related back to
the first, and applied the modification retroactively from May 1996 instead
of October.  Pursuant to M.R. Civ. P. 15(c)(2), an amendment of a pleading
relates back to the date of the original pleading when the claim or defense
asserted in the amendment arose out of the conduct, transaction, or
occurrence set forth in the original pleading.  By its terms, however,
M.R. Civ. P. 15(c)(2) only applies to pleadings.   Rule 7(a) addresses the
various forms of pleadings by referring to the complaint, answer, reply to a
counterclaim, answer to a cross-claim, third-party complaint, and third-
party answer.  See M.R. Civ. P. 7(a).
	[¶15]  Motions, on the other hand, are addressed separately in
M.R. Civ. P. 7(b).  See 1 Field, McKusick & Wroth, Maine Civil Practice § 7.2
at 187 (2d ed. 1970) (stating motions are not pleadings).  Because a post-
judgment motion to amend a child support order is not a pleading,
M.R. Civ. P. 15(c)(2) does not apply to allow relation back.
	[¶16]  We look nonetheless to the nature of the motions at issue to
determine whether the latter motion may be related back to the filing of the
first motion.  The first motion did not seek a modification of Maier's child
support obligation.  It sought only to enforce an already existing obligation,
the responsibility to pay one-half of the childrens' medical expenses. 
Standing on its own, that motion would have been insufficient to allow the
court to exercise its authority pursuant to 19-A M.R.S.A. § 2009.  That
section also provides that "child support orders may be modified
retroactively but only from the date that notice of a petition for modification
has been served upon the opposing party."  19-A M.R.S.A. § 2009(2). 
Nothing in the first motion put Maier on notice that his ongoing child
support obligation could be modified by the court.  On these facts, the court
erred in relating the modification motion back to the original motion. 
	The entry is:
Judgment modified to apply retroactively to
October 23, 1996, and so modified affirmed.

Attorney for the plaintiff: Sandra Hylander Collier, Esq. (orally) P.O. Box 1391 121 Main St. Ellsworth, Maine 04605 Attorney for the defendant: Michael P. Asen, Esq. (orally) Peter G. Cary, Esq. Mittel, Asen, Hunter & Cary P.O. Box 427 57 Exchange St. Portland, Maine 04112-0427
FOOTNOTES******************************** {1} . A taxpayer may deduct expenses paid during the taxable year on behalf of a dependent for medical care not covered by insurance to the extent such expenses exceed 7.5% of adjusted gross income. See I.R.C. § 213(a). Divorced parents may each take deductions for medical expenses paid on behalf of their children, regardless of which parent is entitled to the dependency deduction for that child. See id. § 213(d)(5). The scope of deductible medical expenses is broad, and includes the cost of attending a special school for mentally handicapped individuals, provided that the individual's condition is such that the resources of the institution in alleviating the handicap are a principal reason for attending that school. See Treas. Reg. § 1.213-(e)(1)(v)(a).