Ketchum v. Ketchum
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision: 	1998 ME 62
Docket: 	Som-97-414
Submitted 
on Briefs: 	February 13. 1998  
Decided:	March 25, 1998

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

IRENE M. KETCHUM

v.

KENNETH E. KETCHUM

RUDMAN, J.

	[¶1]  Irene M. Ketchum appeals from the divorce judgment entered in
the Superior Court (Somerset County, Marsano, J.) contending that the
court's findings were not based on evidence in the record and that the court
exceeded the bounds of its discretion in its division of marital property and
by its award of alimony and attorney fees.  We agree that the court cannot
order periodic payments as a division of marital property and designate
those payments as alimony, and that the court cannot base its termination of
alimony on speculative predictions of future economic conditions.  We vacate
the judgment.

I.

	[¶2]  Irene and Kenneth Ketchum were married in May, 1962, and
thirty-four years later Irene sought a divorce.  In its judgment awarding a
divorce to the parties, the court: (i) ordered Kenneth to provide Irene $50
per week "as alimony" until Irene reached the age of 65 "in order to
equalize the distribution of the marital assets of the parties"; (ii) ordered
Kenneth to pay Irene $125 per week "as spousal support in the nature of
alimony" terminable by, inter alia, Irene's eligibility for Social Security
disability income benefits or retirement benefits;  and (iii) divided the
parties' marital property.

II.

	[¶3]  In determining alimony, the trial court is required to consider
the factors enumerated in the alimony statute.{1}  Ramsdell v. Ramsdell, 1997
ME 4, ¶ 5, 688 A.2d 918, 920.  We review an alimony award for an abuse of
discretion and will not disturb the decision unless it violates "some positive
rule of law or has reached a result which is plainly and unmistakably an
injustice."  Quin v. Quinn, 641 A.2d 180, 181 (Me. 1994) (quoting Terison v.
Terison, 600 A.2d 1123, 1124 (Me. 1992)).  The factual findings underlying
an award of alimony are reviewed for clear error.  See id.
	[¶4]  The primary purpose of alimony is to provide for the future
needs of the divorcing spouse and to act as a substitute for the loss of
support enjoyed during the marriage.  See Harding v. Murray, 623 A.2d 172,
176 (Me. 1993).  In this case, however, the court stated that the only
purpose of part of its alimony award was to create a just division of the
marital assets.  We express no opinion on the fairness of that division,
deciding only that it cannot be labeled "alimony" because the award bore no
relationship to the future maintenance and support needs of Irene.  See
Noyes v. Noyes, 662 A.2d 921, 922-23 (Me. 1995) ("purpose of alimony is to
provide maintenance and support for the future needs of the payee spouse")
(internal quotations and citations omitted).{2}
	[¶5]  The trial court further erred by ordering the alimony award to
Irene to cease at such time as she receives Social Security benefits.  There is
no evidence in the record concerning the amount of Social Security benefits
to which Irene may be entitled, nor evidence of other income to which
Irene may be entitled, nor evidence of what her economic needs will be at
the time she begins receiving Social Security benefits.  Alimony awards may
not be based on speculative predictions of future economic circumstances. 
See Ryan v. Ryan, 1997 ME 136 ¶ 8, 697 A.2d 60, 61-62 ("[t]he court
simply looked too far into the future by trying to fix the economic
consequences of [spouse's] retirement").

III.

	[¶6]  Contrary to Irene's contentions, the Superior Court did not
exceed the bounds of its discretion in its award of attorney fees, nor were its
implicit findings of fact clearly erroneous.  See Harding, 623 A.2d at 177
(court will not disturb the divorce court's award of attorney fees unless it
abused its discretion in setting that amount); Powell v. Powell, 645 A.2d
622, 623 (Me. 1994) (when a party fails to make a timely motion for
findings of fact or amendment of findings of fact pursuant to M.R. Civ. P. 52,
court assumes the divorce court found all of the facts necessary to support
the judgment and reviews implicit findings for clear error).{3}  Recognizing
the relationship between alimony and the marital property division in
creating a complete and equitable divorce judgment, we vacate the entire
divorce judgment "in order that equity be done to both parties by the overall
financial result of this divorce."  Dunning v. Dunning, 495 A.2d 821, 824
(Me. 1985).
	The entry is:
Judgment vacated.  Remanded for further
proceedings consistent with the opinion herein.
                                                                                           

Attorney for plaintiff:
Martha J. Harris, Esq.
Paine, Lynch & Harris, P.A.
P O Box 1451
Bangor, ME 04402-1451

Attorney for defendant:

Robert Ringer, Esq.
Daviau, Jabar & Batten
One Center Street
Waterville, ME 04901-5495

FOOTNOTES******************************** {1} At the time of this divorce action, the statute defining the factors that the court should consider in determining spousal support was 19 M.R.S.A. § 721. Those factors are now set forth in 19-A M.R.S.A. § 951 (1997). {2} While we agree that the court erred in its use of alimony to divide the marital estate, we note that a trial court may fashion a marital property division that includes periodic payments to effectuate a just and equitable property division. See Booth v. Booth, 640 A.2d 1063, 1064-65 (Me. 1994) (court did not exceed its authority when it ordered spouse to pay certain sum in monthly installments to effectuate a just property division); see also Lord v. Lord, 454 A.2d 830, 834 (Me. 1983) (statute governing the division of marital property confers on the court not only the authority to divide the marital estate but also "those powers necessary to render effective the power to divide"). {3} We note that the appellant also filed an untimely motion for a new trial.