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Weiss v. Brown
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MAINE SUPREME JUDICIAL COURT						Reporter of Decisions
Decision: 1997 ME 57
Docket: PEN-96-514
Submitted on briefs March 7, 1997
Decided April 1, 1997

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

SALLY WEISS, f/k/a SALLY W. BROWN v. JAMES D. BROWN

GLASSMAN, J.  
	[¶1]  James D. Brown appeals from the judgment entered in the
Superior Court (Penobscot County, MacInnes, A.R.J.) affirming the judgment
of the District Court (Bangor, Hjelm, J.) granting the motion of Sally Weiss,
f/k/a Sally W. Brown, seeking an order of the court that Brown be held in
contempt for failure to comply with a certain provision of the divorce
judgment granted to the parties and that Brown pay to Weiss the sum of
monies required by that provision.  Brown contends the trial court erred by
denying his motion to dismiss the motion filed by Weiss, by rejecting the
introduction of extrinsic evidence relative to the intent of the parties as to
the provision at issue, and by finding him in contempt and ordering him to
pay $22,091 to Weiss.  We affirm the judgment.  
	[¶2] The record reflects that in January 1986, the parties, who had
one minor child, Andrea, were granted a judgment of divorce that, inter alia,
provided:
 
By agreement of the parties, Plaintiff [Sally W. Brown] is to pay
for four years of college education for Andrea.  Any schooling she
may receive beyond the four years is to be paid for by the
Defendant [James D. Brown].  

Neither party appealed from the judgment.  
	[¶3] In August 1994, pursuant to M.R. Civ. P. 80(j) and 19 M.R.S.A. §
752 (Supp. 1996), Weiss filed the present motion alleging:  the judgment of
divorce had not been altered or amended and remained in full force and
effect; Andrea had received a baccalaureate degree, after completing five
years of college; Weiss had paid for all five years; the itemized expenses
represented the cost for the fifth year of Andrea's college education; despite
Weiss's demand, Brown had failed and refused to reimburse Weiss for said
cost; and requesting the court find Brown in contempt for noncompliance
with the divorce judgment and order him to reimburse Weiss for said cost.  
	[¶4] After a hearing, the court denied Brown's motion to dismiss
Weiss's motion.  Following a hearing on Weiss's motion, the court found that
Brown's total liability to Weiss was $22,091, that he had the present ability
to pay that amount, and that he was in contempt.{1}  From the judgment
entered accordingly, Brown appeals.  When, as here, the Superior Court acts
as an intermediate appellate court, we review directly the decision of the
District Court.  Knight v. Knight, 680 A.2d 1035, 1037 (Me. 1996) (citation
omitted).  
	[¶5] Brown contends the trial court erred by denying his motion to
dismiss on the ground that the phrase "schooling she may receive beyond
the four years" rendered the challenged provision too vague and incomplete
to be enforced.  He relies, as he did before the trial court, on Ault v.
Pakulski, 520 A.2d 703 (Me. 1987), to support this contention.  We agree
with the trial court that Brown's reliance on Ault is misplaced.  In Ault,
based on the established principle that "in order to be binding [a contract]
must be sufficiently definite to enable the [c]ourt to determine its exact
meaning and fix exactly the legal liability of the parties," we concluded that
because the settlement contract signed by the parties was "nothing more
than an agreement to agree," it was too vague and incomplete to permit the
specific enforcement by the court sought by the plaintiff.  Id. at 704, 705
(citations omitted).  In the instant case, Weiss does not seek to enforce a
contract entered into by the parties, but a provision in a divorce judgment. 
The trial court properly determined it is within the inherent power of the
court to construe or clarify its judgment and denied Brown's motion to
dismiss.  
	[¶6] Brown next contends the trial court erred by rejecting the
introduction of extrinsic evidence to establish the original intent of the
parties with regard to the challenged provision.  He acknowledges that
when interpreting a divorce judgment it is the court's intent that must be
construed.  He argues, however, that to determine the court's intent
consideration must be given to the parties' understanding of the provision
based upon the circumstances that existed in January 1986.  We disagree. 
When, as here, an agreement of the parties becomes part of the divorce
judgment, it is the intent of the trial court, rather than that of either of the
parties, that is determinative of the rights and liabilities of the respective
parties provided in the challenged provision.  See Wardwell v. Wardwell, 458
A.2d 750, 752 (Me. 1983) (language of separation agreement significant to
the extent that it reveals intention of trial court); Torrey v. Torrey, 415 A.2d
1092, 1094 (Me. 1980) (intent of trial court not of parties that is
determinative).  
	[¶7] Brown finally contends that because the court erroneously
determined that in consideration of the facts of this case there is no
ambiguity in the challenged provision, it could not find him in contempt of
the provision or order that he pay $22,091 to Weiss.  We disagree.  Whether
ambiguity exists in a divorce judgment is a question of law for the trial court. 
Bliss v. Bliss, 583 A.2d 208, 210 (Me. 1990).  As the moving party on the
motion for contempt, the burden of persuasion was on Weiss to establish
that Brown's failure to comply with the 1986 divorce judgment was
contumacious.  Zink v. Zink, 687 A.2d 229, 232 (Me. 1996).  "When the
record discloses no clear error in the factual findings underlying the trial
court's determination, we review a judgment of civil contempt for abuse of
discretion." Id. (citation omitted).  Here, the record supports the court's
finding that Andrea attended college for five years before receiving her
baccalaureate degree; because Brown had not paid the $22,091 cost of
Andrea's fifth year of college education, Weiss did so and was entitled to
reimbursement; and Brown has the present ability to pay that amount.  We
agree with the trial court's determination that the facts do not generate any
ambiguity in the clear and unambiguous provision of the decree that
provides Brown is liable to Weiss for the costs of Andrea's fifth year of
college and discern no abuse of the court's discretion in finding Brown in
contempt.  
	The entry is:
						Judgment affirmed. 
 
Attorney for plaintiff: Peggy B. Gilbert, Esq. Gilbert Law Offices, P.A. P O Box 2339 Bangor, ME 04402-2339 Attorney for defendant: Martha J. Harris, Esq. Paine, Lynch & Harris, P.A. P O Box 1451 Bangor, ME 04402-1451
FOOTNOTES******************************** {1} Although the court found Brown in contempt for noncompliance with the divorce judgment, it expressly refrained from imposing civil contempt sanctions and a purging mechanism to allow Brown the opportunity to pay the amount due. The judgment further provided that execution should issue for the $22,091, and if Brown failed to make payments or payment arrangements to the satisfaction of Weiss, she could move for a hearing for imposition of sanctions.