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Dawn Smith v. Mark Smith
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MAINE SUPREME JUDICIAL COURTReporter of Decisions
Decision 1997 ME 29
Docket: Aro-96-176
Argued February 6, 1997
Decided February 26, 1997

Panel:  ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.


DAWN G. SMITH v. MARK A. SMITH

GLASSMAN, J.
  
	[¶1] Mark A. Smith appeals from a judgment of divorce entered in the
Superior Court (Aroostook County, Archibald, A.R.J.).  Mark contends that
the court erred (1) by failing to dissolve the spouses' joint ownership in
their closely held corporations; (2) by twice awarding the same property to
Dawn; and (3) by improperly calculating the arrearage due from the court's
order pending divorce.  Dawn G. Smith cross-appeals contending that the
court erred (1) by its valuation of one of the spouses's closely held
corporations and (2) by failing to justly divide and determine the value of the
parties' property.  We vacate the judgment.  
	[¶2]  Mark and Dawn were married in 1969.  In 1978, the couple
moved to Mars Hill and began a concrete foundation business.  The business
was eventually incorporated as M. A. Smith Foundations, Inc. (M. A. Smith),
with Mark and Dawn each owning an equal number of shares of the capital
stock of the company.  In February of 1994, Mark formed a general
contracting company, Ace General Contractors, Inc. (Ace) with their son,
Mark S. Smith, with Mark owning one-quarter of the stock in Ace and their
son owning the remaining stock.  In July 1994, Dawn filed the present
action.  Following a trial of this matter, the court granted the couple a
divorce on the ground of irreconcilable differences and determined all the
property owned by the parties to be "marital property" pursuant to 19
M.R.S.A. § 722-A (1981).{1}  The court valued and divided the marital estate,
including M. A. Smith, Ace, the couple's jointly owned real property, two
vehicles, publicly traded securities and individual retirement accounts. 
Despite assigning a value to M. A. Smith and Ace in its general division of the
martial estate, the court concluded that it could not determine an "accurate
accrual value of the stock" in either corporation and provided that the stock
holdings in these corporations be divided equally between the parties. 
Finally, the judgment provides that Mark pay alimony to Dawn and the
arrearage due her pursuant to a pretrial order.
	[¶3] Both parties filed motions for findings of fact and conclusions of
law and to alter and amend the judgment, pursuant to M.R. Civ. P. 52 and
M.R. Civ. P. 59.  Dawn also filed a motion for a new trial and for relief from
the judgment pursuant to M.R. Civ. P. 59 and M.R. Civ. P. 60.  On February
26, 1996, the court denied the various motions of the parties.  These
appeals followed.  
	[¶4] Both Mark and Dawn, inter alia, contend that the court erred by
failing to dissolve their joint ownership in both M. A. Smith and Ace.  We
agree.  In Berry v. Berry, 658 A.2d 1097, 1099 (Me. 1995), we stated:
We cannot expect divorced parties to continue a business
relationship that will optimize resources and profits.  Therefore,
it is particularly important to avoid creating situations where the
divorced parties remain in joint management of the income
producing property.  

Here, the division of the stock in these closely held corporations
"necessitates a lingering connection between two parties who obviously wish
to sever their ties." Ryan v. Ryan, 571 A.2d 392, 394-95 (Pa. Super. 1990),
rev'd on other grounds, 596 A.2d 140, 142-43 (Pa. 1991).  It is within the
court's power to provide other means of distribution of the marital property
to avoid future conflicts between the parties.  See, e.g., Baker v. Baker, 444
A.2d 982, 986 (Me. 1985) (achieving division by requiring sum of money be
paid one party or mortgage be given on that party's separate property);
Zillert v. Zillert, 395 A.2d 1152, 1156-58 (Me. 1978) (giving one party
option to purchase other party's equitable share or partitioning property). 
Because we remand the case for a redetermination of all economic issues,
we do not address the other contentions of the parties.  
	The entry is:

Judgment vacated.  Remanded to the
Superior Court for further proceedings
consistent with the opinion herein.


Attorney for plaintiff: Sarah LeClaire, Esq. (orally) 421 Main Street Presque Isle, ME 04769 Attorney for defendant: Francis E. Bemis, Esq. (orally) Hardings Law Offices P O Box 427 Presque Isle, ME 04769
FOOTNOTES******************************** {1} 19 M.R.S.A. § 722-A provides, in part: 2. Definition. For purposes of this section only, "marital property" means all property acquired by either spouse subsequent to the marriage . . . .