Avery v. Avery
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:		1998 ME 25
Docket:		Cum-97-236
Submitted
On Briefs:		January 8, 1998
Decided :		January 29, 1998

Panel:	WATHEN, C.J., and ROBERTS,  CLIFFORD,  RUDMAN, and SAUFLEY, JJ.

F. LINCOLN AVERY

v.

RACHEL AVERY

CLIFFORD, J.
 
	[¶1] 	F. Lincoln Avery appeals from a divorce judgment entered in the
Superior Court (Cumberland County, Foster, J., sitting by designation{1}). 
Lincoln contends inter alia that the court erred by concluding that the
equity in the parties' jointly owned real property was Rachel Avery's
nonmarital property.  Because we agree that Long v. Long, 1997 ME 171,
697 A.2d 1317 applies to the instant divorce proceeding, we vacate the
judgment.  
	[¶2] The parties were married in 1981.  In 1985, they purchased a
home in Rochester, New York.  The down payment consisted of marital
funds and Rachel's nonmarital funds.  In 1987, they sold the Rochester
property, and purchased a home in Falmouth.  Again, the down payment
consisted of both marital and nonmarital funds.  The parties purchased, as
joint tenants, a home in Cumberland Foreside in 1993.  The down payment
on the Cumberland Foreside property consisted, in part, of the proceeds
from the sale of the Falmouth home and Rachel's nonmarital funds.
	[¶3] In April 1997, the court granted the parties a divorce on the
grounds of irreconcilable marital differences.  By agreement of the parties,
the court ordered Lincoln to convey his interest in the marital residence to
Rachel in exchange for her assumption of the mortgage note.  The parties
also agreed that the marital residence, valued at $450,000, was subject to a
first mortgage note in the amount of $253,422 and a home equity loan in
the amount of $99,582.  Employing a source of funds rule, see Tibbetts v.
Tibbetts, 406 A.2d 70 (Me. 1979), the court concluded that "virtually all" of
the equity in the marital home was Rachel's nonmarital property, and set
aside the equity to her in that category.  This appeal followed. 
	[¶4] Whether property is marital or nonmarital is governed by statute. 
See 19 M.R.S.A. § 722-A (1981).{2}  The court's determination of property as
marital or nonmarital is reviewed for clear error.  Dubord v. Dubord, 1997
ME 7, ¶ 5, 687 A.2d 647, 648.  We recently held that "jointly owned real
property is subject to division as marital property pursuant to
19 M.R.S.A. § 722-A (1981), even though parts of it were acquired with
nonmarital funds."  Long v. Long, 1997 ME 171, ¶ 1, 697 A.2d at 1319. 
Long overruled a line of cases treating jointly owned real property, acquired
with marital and nonmarital funds, as separate property and using a source
of funds rule to determine each spouse's pro tanto interest in the property. 
Long, 1997 ME 171, ¶ 16, 697 A.2d at 1324.  
	[¶5] In general, a judicial holding applies to any case not terminated
in a final manner.  See Clark v. Rust Eng'g Co., 595 A.2d 416, 418 (Me.
1991); MacDonald v. MacDonald, 412 A.2d 71, 75 (Me. 1980).  Although we
have occasionally limited the retrospective application of a decision that
marked a change in the law, see, e.g., Myrick v. James, 444 A.2d 987 (Me.
1982); Black v. Solmitz, 409 A.2d 634 (Me. 1979), we did not depart from
the general rule in Long.  Accordingly, the Cumberland Foreside residence is
subject to division as marital property, even though it was acquired in part
with Rachel's nonmarital funds.  See Long, 1997 ME 171, ¶ 1, 697 A.2d at
1319.  
	[¶6] Because the court set aside the equity in the Cumberland
Foreside residence as Rachel's nonmarital property and did not exercise its
equitable power of division with respect to that property, see West v. West,
550 A.2d 1132, 1133 (Me. 1988), the division of marital property must be
redetermined.  On remand, the court should reconsider all economic issues
in view of its division of the real property as marital property. 
	The entry is:
Judgment vacated.  Remanded for further
proceedings consistent with the opinion
herein. 

Attorney for plaintiff:

Graydon G. Stevens, Esq.
Kelley, Remmel & Zimmerman
P O Box 597
Portland, ME 04112-0597

Attorney for defendant:

Gene R. Libby, Esq.
Michael J. Donlan, Esq.
Verrill & Dana
P O Box 147
Kennebunk, ME 04043-0147