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Quin v. Quinn,corrected 6-27-97
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MAINE SUPREME JUDICIAL COURTReporter of Decisions
Decision:	1997 ME 131
Docket:	PEN-96-369
Submitted
on Briefs:	February 7, 1997
Decided:	June 11, 1997

Panel:WATHEN, C.J., and GLASSMAN, CLIFFORD, DANA, and LIPEZ, JJ.  
Majority:WATHEN, C.J., and GLASSMAN, CLIFFORD, and LIPEZ, JJ.  
Dissent:	DANA, J.  

ANNE MARIE QUIN

v.

ROBERT M. QUINN

GLASSMAN, J. 
 
	[¶1]  Robert M. Quinn appeals from the judgment entered in the
Superior Court (Penobscot County, Kravchuk, J.) affirming the judgment of
the District Court (Bangor, Mead, J.), dated March 24, 1995, following our
decision in Quin v. Quinn, 641 A.2d 180 (Me. 1994), in which we vacated
the judgment entered in the Superior Court (Penobscot County, Kravchuk,
J.) affirming the judgment of the District Court (Bangor, Mead, J.), dated
February 10, 1992, granting a divorce to Robert M. Quinn and Anne Marie
Quinn,{1} and instructed the Superior Court to remand the matter to the
District Court for further proceedings consistent with our opinion.  
	[¶2]  Robert contends that on the remand of this case the District
Court erred as a matter of law by reconsidering issues of the division of
marital property and alimony and by the extent it punished him for his
economic misconduct during the course of the marriage.  Our review of the
record discloses no error of law or abuse of the trial court's discretion, and
accordingly, we affirm the judgment.  
	[¶3]  When, as here, the Superior Court acts as an intermediate
appellate court, we review directly the record before the District Court to
determine if there was any error of law that affected the validity of the
judgment.  Page v.. Page, 671 A.2d 956, 957 (Me. 1996).  "Issues arising out
of a divorce action, such as property division [and] alimony . . . are within the
court's sound discretion . . . and the judgment of the [trial] court on such
matters is entitled to substantial deference." Knight v. Knight, 680 A.2d
1035, 1037 (Me. 1996) (citing Shirley v. Shirley, 482 A.2d 845, 847-48
(Me. 1984).  
	[¶4]  Robert first contends the District Court erred as a matter of law
by its reconsideration of the division of marital property and alimony.  He
argues that absent a substantial change in the financial condition of the
parties, the court's authority on remand was limited to an adjustment for
the economic impact of his transfer of the Sugarloaf condominium.  We
disagree.  In Quin v. Quinn, 641 A.2d at 181-82, we determined that the
trial court had committed clear error by finding that there was no economic
misconduct by Robert's unilateral transfer of the Sugarloaf condominium,
purchased with marital funds, to the parties' adult children for a nominal
consideration.  
	[¶5]  Recognizing the impact of a single economic issue on all others,
we have made clear in our opinions vacating divorce judgments on an
economic issue that the trial court is in no way to be impeded by its previous
decision.  See, e.g., Grishman v. Grishman, 407 A.2d 9, 12 (Me. 1979).  In
arriving at a new judgment in the case, the trial court may properly consider
a wide range of pertinent factors with the discretion to open the record to
allow the parties to introduce new evidence relating to the economic issues
properly before the court.  Sweeney v. Sweeney, 534 A.2d 1290, 1292 (Me.
1987).  These principles were reaffirmed in Quin v. Quinn, 641 A.2d at 182,
wherein we stated, "On remand, the District Court should take into account
the defendant's economic misconduct and reconsider the alimony issue, and
to the extent necessary, all of the economic issues."  The application of
these well-established principles to the procedure followed by the District
Court in the present case refutes Robert's contention that the District Court
erred as a matter of law by not confining its consideration to the economic
impact of Robert's economic misconduct in arriving at the present
judgment.  
	[¶6]  Robert next contends the trial court erred as a matter of law by
punishing him for his economic misconduct.  He argues that this erroneous
punishment is manifested by the clearly erroneous findings on which the
court based its award of the marital home to Anne Marie and the amount of
alimony awarded to her.  We disagree.  "The disposition of marital property
is a matter committed to the sound discretion of the trial court and
reviewable only for an abuse of discretion." Arey v. Arey, 651 A.2d 351, 353
(Me. 1994).  See 19 M.R.S.A. § 722-A (1981 & Supp. 1996) (governing
disposition of property, inter alia, in a proceeding for a divorce).  Absent a
violation of some positive rule of law we defer to the discretion of the trial
court and will overturn its decision as to the disposition of marital property
and the amount of an alimony award "only if it results in a plain and
unmistakable injustice, so apparent that it is instantly visible without
argument." Arey v. Arey, 651 A.2d at 353-54 (citations omitted).  See also 19
M.R.S.A. § 721 (Supp. 1996) (setting forth factors to consider when
determining an award of alimony that includes "[e]conomic misconduct by
either party resulting in the diminution of marital property or income");
Strater v. Strater, 159 Me. 508, 518 (1963) ("There is no universal standard
which [the court] may apply in determining the amount of alimony in any
given case."); Shirley v. Shirley, 482 A.2d at 847-48 (incidents of divorce
such as property division and alimony addressed to trial court's sound
discretion, and "it is particularly inappropriate . . . to undertake an
independent evaluation based on a cold record.").  
	[¶7]  The record reflects that following our decision in Quin v. Quinn,
the trial court, after a conference with the parties, issued a scheduling order
that reopened the record to allow the parties to engage in a course of
discovery to enable the court to evaluate the current economic status of each
party.  Both parties engaged in the discovery process without objection. 
After a two-day hearing in January 1995, at which each party appeared and
testified regarding that party's finances, followed by written argument by the
parties, the court issued its judgment on March 24, 1995, followed by
additional findings of fact and conclusions of law on June 14, 1995.  In
arriving at its decision, the court stated, "After considering the economic
misconduct of the Defendant, the economic benefit of the misconduct to the
Defendant, and the current economic circumstances of the parties . . . ."
(Emphasis added).  
	[¶8]  Although Robert focuses entirely on the value of the Sugarloaf
condominium to support his contention that the amount of the alimony
award to Anne Marie can only be attributable to punishment for his
economic misconduct, the findings of the court disclose that it considered a
wide range of pertinent factors in reaching its decision, including the
following:{2}  Anne Marie's annual income is $16,000 and Robert's is
$35,000; the value of Robert's nonmarital property substantially exceeds
that of Anne Marie's; Robert has voluntarily reduced his income stream and
productivity in anticipation of the divorce; he has permitted the Quinn
Agency to occupy the marital real property at 272 Hammond Street,
Bangor,{3} rent free and has chosen to eliminate a source of marital income by
failing to rent other portions of the building.  Since the commencement of
the divorce action, Robert has failed to account to Anne Marie for any rental
income relating to that property.  During the period Robert's salary has gone
down, production at the Quinn Agency has increased, and although during
this period the sales people at the Agency received commissions, Robert
elected not to do so.  Robert freely supplements his income by his personal
use of the Quinn Agency assets for expenses, including living costs, travel,
entertainment, vacations and gifts.  He admits to taking income as loans
from the corporation rather than commissions or increased salary.  He
continues to use the Sugarloaf condominium as a vacation residence for
which he pays no rent and has caused the Quinn Agency to pay an average
annual amount of $3000 for all related costs for his use, including his
personal ski lift tickets.  
	[¶9]  Our review of the record discloses that the findings of the trial
court are supported by the evidence and are not clearly erroneous.  Nor did
the court's disposition of the marital property and award of alimony to Anne
Marie violate "some positive rule of law or [reach] a result which is [so]
plainly and unmistakably an injustice that is so apparent as to be instantly
visible without argument." Arey v. Arey, 651 A.2d at 354 (citation and
quotation omitted).  
	The entry is:
					Judgment affirmed. 
                  
                                 
DANA, J., dissenting.
	[¶10]  I respectfully dissent.  Because the court's amended alimony
award so severely punishes Robert's economic misconduct, Quin v. Quinn,
641 A.2d 180, 181 (Me. 1994) (footnote omitted), this Court should label it
a plain and unmistakable injustice.
	[¶11]  In its original divorce judgment the court, after equally dividing
the marital property, awarded alimony to Anne Marie as follows:  (1) health
and life insurance for her benefit for five years; (2) $110 per week for five
years (ending February 10, 1997); and (3) mortgage payments of $1,120 per
month on a home located on West Broadway in Bangor for 18 months or
until she sold it, whichever occurred first, after which the parties were to
have divided the equity equally (then approximately $70,000 each).{4}  The
court's amended judgment on remand requires Robert to (1) increase
periodic alimony payments (in present value terms) by what amounts to
approximately $60,000, (2) transfer his half of the equity of the West
Broadway property, worth approximately $75,000, and (3) retire a mortgage
debt of approximately $80,000 (unless the property is sold first).  In sum,
the court's amended judgment awards Anne Marie an additional $215,000,
despite the fact that Robert's economic misconduct-his transfer of the
Sugarloaf condominium to their children-depleted Anne Marie's share of
the marital estate by only $73,500 (a figure that accounts for the additional
expenses to the estate in transfer taxes).    
	[¶12]  While the court was not required to limit the award on remand
to a dollar-for-dollar set off of the value of the economic misconduct, see,
e.g., Skelton v. Skelton, 490 A.2d 1204, 1207 (Me. 1985); Bryant v. Bryant,
411 A.2d 391, 394-95 (Me. 1980), it awarded Anne Marie nearly three
times the value of the impact of Robert's economic misconduct on her.{5} 
Anne Marie before the Superior Court and again here contends that the
court's alimony award is justified in part by the parties' changed financial
circumstances.  However, neither the evidence introduced in 1995 nor the
court's findings support the conclusion that the increase in the alimony
award is attributable to other than Robert's economic misconduct.
	[¶13]  Even when reviewing the present judgment as if it were the
only judgment, this conclusion holds.  After the 1995 hearing the court
reaffirmed its 1992 finding that during this 34-year marriage "the
contributions of the parties to the marital estate [were] approximately equal
and thus [the court] attempts to distribute the property on that basis." 
According to the court's findings, Robert has an income of about $35,000.{6} 
Being 66 years of age, he had hoped to retire by now, but pursuant to the
judgment must pay alimony of $23,640 per year ($1,970 per month),
consisting of monthly mortgage payments on the West Broadway residence
of $1,120 until the debt is retired or the property sold and monthly cash
payments of $850 for ten years or until Anne Marie's death or remarriage. 
Thus, Robert has approximately $11,360 left of his annual income with
which to support himself and pay Anne Marie's lawyer the $20,000 the
court ordered him to pay.  Robert retains his business and the Hammond
Street building, which is worth $92,000, slightly more than the debt he
owes on the West Broadway property ($79,400).{7}  The court found that Anne
Marie has an annual income of $16,000{8} and a recent inheritance of
approximately $93,000, and retains her business, the Reading Consultancy,
with branch offices in Bangor, Bar Harbor and Falmouth.  The judgment
awards her the West Broadway residence in Bangor worth $231,250, and a
Bar Harbor condominium worth $90,000, both without any mortgage
obligation (unless she sells the West Broadway property).  Thus, the
judgment divides the real estate so that Anne Marie retains $320,000 worth
of the property and Robert keeps $12,600 (Hammond Street less the debt
on West Broadway).  Compounding this unfairness, Robert must continue to
work during his normal retirement years to pay two thirds of his current
income in periodic alimony to his already comfortably situated former wife. 
This seems plainly and unmistakably an injustice, and I would therefore
vacate the judgment.