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Levesque v. Levesque
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME 166
Docket:	And-96-625
on Briefs:	March 24, 1997
Decided:	July 23. 1997	




	[¶1]  Defendant Monique Levesque appeals from the judgment entered
in the Superior Court (Androscoggin County, Delahanty, J.) dismissing{1} her
appeal from a divorce judgment entered in the District Court (Lewiston,
Beliveau, J.) as untimely.  Defendant contends on appeal that her motion to
alter and amend the divorce judgment to change her name tolled the
running of the appeal period, and that her notice of appeal to the Superior
Court was timely if computed from the date of the order on her motion to
amend.  We conclude that defendant's appeal was filed in a timely manner
and we vacate the judgment of the Superior Court.  In the interest of judicial
economy, we consider and affirm the District Court's denial of her motion to
proceed in forma pauperis.
	[¶2]  Plaintiff Richard Levesque and defendant were married in 1975. 
Three children were born of their marriage.  On July 26, 1995, a judgment
was entered in the District Court divorcing the parties, determining child
custody and support issues, and dividing the marital property.  It was
determined that the parties would share parental rights and responsibilities
concerning their minor children and that the primary physical residence of
the children would be with the father.  The mother was not ordered to pay
child support.  No alimony was awarded to either party.  Title to the marital
home was awarded to the father and he was ordered to pay the mother the
value of her share of the property sixty days after their youngest child
reaches sixteen or, if he sold the property before then, on the sale of the
	[¶3]  On July 28, 1995, the mother moved for findings of fact and
conclusions of law regarding the court's valuation of the couple's real and
personal property and its decision not to order the sale of the house until
their youngest child reaches sixteen years of age.  On August 15, 1995, the
court issued its findings and conclusions.  On August 23, 1995, the mother
filed a motion "[p]ursuant to Rules 52(b) and 59(e), M.R. Civ. P." to alter and
amend the divorce judgment to "provide for the restoration of the
Defendant's maiden name of "Denis . . . as authorized pursuant to 19 M.R.S.A.
§ 752(11)."  This motion was granted on September 1, 1995.  
	[¶4]  On October 2, 1995, the mother filed a notice of appeal from the
divorce judgment.  On that same date, she filed a motion for a transcript at
state expense.  The court ordered the mother to file a financial affidavit in
support of the motion.  She filed an application to proceed in forma pauperis 
with a supporting affidavit.  The District Court found that her appeal was
frivolous and not made in good faith and it denied her motion to proceed in
forma pauperis.  It later denied her motion to reconsider this ruling.{2}  
	[¶5]  The Superior Court refused to consider the merits of the
mother's appeal from her divorce judgment because her notice of appeal,
filed on October 2, 1995, was not timely.  The court concluded that her
motion to amend the judgment to allow her to resume her maiden name "is
not the type of motion contemplated under either Rule 59 or 52, M.R. Civ.
P., which would toll the period of time in which an appeal must be filed."
The mother then filed a timely notice of appeal from the Superior Court's
I. The Timeliness of Defendant's Appeal to the Superior Court
	[¶6] The mother asserts that her motion to alter and amend the
divorce judgment was properly made pursuant to M.R. Civ. P. 52(b).  She
contends that her notice of appeal to the Superior Court, filed within 30
days of the entry of the court's order on her motion, is timely.  The father
contends that the mother's motion to amend was not properly made
pursuant to Rule 52(b) because it did not request an amendment of the
court's August 15 findings.  He argues that the motion must be characterized
as a Rule 59(e) motion, and as such, was untimely. 
	[¶7]  It is undisputed that the mother's motion, if it must be
characterized as a Rule 59(e) motion, was untimely because it was filed over
ten days after the entry of the judgment in question.{4}  It is also clear that
the motion, if characterized as a Rule 52(b) motion, was timely.  It was made
within ten days after notice of the findings made by the court on August 15. 
Such a Rule 52(b) motion would have terminated the running of the appeal
period until the entry of the court's order granting the motion on
September 1.  M.R. Civ. P. 76D.  If the period for appeal began to run on
September 1, the mother's notice of appeal, filed on October 2, was timely.  
	[¶8]  M.R. Civ. P. 52(b) states in part:

(b) Amendment.  The court may, upon motion of a party made not
later than 10 days after notice of findings made by the court, amend
its findings or make additional findings and, if judgment has been
entered, may amend the judgment accordingly . . . .	

Contrary to the father's assertion, relief may be granted pursuant to Rule
52(b) even when the parties have not requested findings pursuant to Rule
52(a){5} or have not explicitly requested the amendment of any particular
finding.  As noted in Maine Civil Practice, "so far as most nonjury cases are
concerned . . . almost without exception any amendment of a judgment
would first involve amendment of the court-made findings."  As a
consequence, "[t]he longer time period for seeking an amendment of a
judgment in connection with amended findings causes Rule 52(b) for
practical purposes to swallow up Rule 59(e)" in such cases.  1 Field,
McKusick & Wroth, Maine Civil Practice, § 52.3 at 686 (2d ed. 1970); see
also 2 Field, McKusick & Wroth, Maine Civil Practice, § 59.4a at 66 (in
nonjury actions relief from a judgment under Rule 52(b) may still be
available even though the time has passed for a Rule 59(e) motion) (citing
Gosselin v. Better Homes, Inc., 256 A.2d 629 (Me. 1969)); Id. at 65 (the
functions of motions pursuant to Rules 52(b) and 59(e) overlap).   
	[¶9] In Gosselin v. Better Homes, Inc., 256 A.2d 629 (Me. 1969), a
judgment in the trial court permitted the plaintiff to redeem certain
property if a designated sum was paid by January 1, 1968.  The judgment
was filed on December 29, 1967, but did not come to the attention of
plaintiff until January 11, 1968.  Plaintiff brought a motion praying for relief
pursuant to M.R. Civ. P. 52(b).   The trial court held that the motion, not
having been made "after notice of findings" as contemplated by Rule 52(b),
was properly to be considered an untimely Rule 59(e) motion.  Id. at 631. 
We held that the trial court erred, stating that "[a]lthough it was labeled a
motion to amend judgment in accordance with rule 52-B, meaning 52(b),
the plaintiff's obvious purpose was to obtain an amendment of the implied
finding of fact made by the court that the period from December 28, 1967
to January 1, 1968 . . . was a reasonable time for redemption."  Id. at 632.  
In the present case, the mother's motion to amend the divorce judgment
can similarly be viewed as a request that the court amend its findings, then
consisting of its original findings and its August 15 findings, to add an
additional finding that she was entitled to resume her maiden name.   	
	[¶10]  Such a result comports with the spirit of the Civil Rules:

Our rules of civil procedure were meant to facilitate the just, speedy,
and inexpensive determination of the merits of issues raised and
pleadings under them must be viewed not as a game of skill in which
one wrong move by counsel may be decisive but rather as orderly steps
to be taken in securing an early and just final adjudication of the rights
of the parties to the litigation ... It is in that spirit that Rule 52(b) was
intended to permit corrections of findings and judgment before
finality fully attached with resulting avoidance of appeals and the
necessary delay incidental thereto. 

Gosselin, 256 A.2d at 633-634.  
II. Motion to Proceed In Forma Pauperis
	[¶11] The mother has briefed the merits of her appeal from the
District Court's denial of her motion to proceed in forma pauperis.  Because
we are vacating the Superior Court's order, we now address that collateral
appeal in the interests of judicial economy.  See 4 M.R.S.A. § 57 (1989) (Law
Court has jurisdiction over cases on appeal from the Superior Court).  
	[¶12]  M.R. Civ. P. 91(f) provides:

A party seeking to appeal to the Superior Court or the Law Court may
file or renew an application for leave to proceed in forma pauperis as
provided in subdivision (a) of this rule.  If the court from which the
appeal is taken finds that the appeal is brought in good faith and is not
frivolous and that the applicant is without sufficient funds to pay all or
part of the costs of entering the appeal and preparing and
transmitting the record, it shall order all or part of those costs to be
waived or paid as an administrative expense of the District Court or
Superior Court as the case may be . . . . 

The District Court concluded, based on a review of the divorce judgment,
the pleadings, and the arguments of counsel, that the mother's appeal from
the judgment was frivolous and not brought in good faith.{6} 
	[¶13] It is a question of law whether an appeal is frivolous. 
Accordingly, an appellate court considers the issue de novo.  Here, we agree
with the District Court's finding that the mother's appeal was frivolous.  She
challenged the court's determination of the credibility of witnesses and its
disposition of marital property.  Given the deferential standard of review for
such discretionary findings, there is no reasonable basis for believing that
the mother would succeed on appeal.  Brandis v. Brandis, 515 A.2d 1153,
1154 (Me. 1986) (issue frivolous pursuant to M.R. Civ. P. 76(f) when
appellant could have no reasonable belief of success).
	The entry is:
Order of the District Court denying
motion to proceed in forma pauperis
affirmed.  Judgment of the Superior
Court vacated.  Remanded for further
proceedings consistent with the opinion

Attorneys for plaintiff: Roscoe H. Fales, Esq. Jennifer Nichols Ferguson, Esq. Fales & Fales, P.A. P O Box 889 Lewiston, ME 04243-0889 Attorney for defendant: Jack Comart, Esq. Pine Tree Legal Assistance, Inc. P O Box 2429 Augusta, ME 04338-2429
FOOTNOTES******************************** {1} The Superior Court's mandate states, in part: "Appeal denied." The appeal, however, should not have been "denied" because the court did not address the merits of the appeal. The court, refusing to consider the appeal because untimely, functionally dismissed the appeal. See M.R. Civ. P. 76D ("If an appellant fails to comply with the provisions of Rules 76D through 76G, containing the notice of appeal filing requirements, within the time prescribed therein, the Superior Court may ... dismiss the appeal for want of prosecution.") (Emphasis added). {2} In addition to appealing the divorce judgment, the mother also filed a notice of appeal from the District Court's orders denying her leave to proceed in forma pauperis and declining to reconsider that denial. {3} The father has moved to dismiss the present appeal. We clearly have jurisdiction over an appeal from a Superior Court determination of its own jurisdiction. {4} M.R. Civ. P. 59(e) states: "Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after the entry of the judgment." {5} M.R. Civ. P. 52(a) states, in part: In all actions tried upon the facts without a jury or with an advisory jury, the Superior Court justice or, if an electronic recording was made in the District Court, the District Court judge, shall, upon the request of a party made as a motion within 5 days after notice of the decision, or may upon its own motion, find the facts specially and state separately its conclusions of law thereon . . . . {6} In proposing the adoption of the current version of M.R. Civ. P. 91(f), the Civil Rules Advisory Committee stated that the new rule abandons the standard set out in Melder v. Carreiro, 541 A.2d 1293 (Me. 1988), "under which in all cases except those involving a 'fundamental right' an appellant seeking to proceed in forma pauperis must establish a reasonable likelihood of success on the appeal." Me Rptr., 636-644 A.2d XXXIII. This standard was rejected, according to the committee's note, because "the Melder rule in effect allows the judge who has decided the case on the merits to determine the question of the likelihood that the decision will be overturned." Id. The committee note, however, explains the choice of "frivolousness" as the standard, stating that "the requirement in Rule 91(f) that the appeal not be frivolous, which is similar to the language of Rule 76(f) . . . should be adequate to deter unwarranted in forma pauperis applications." Id.