Simoneau v. Simoneau, corrected 5-21-97

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision: 	1997 ME 108
Docket:   	Fra-96-724
Argued : 	April 7, 1997
Decided:	May 20, 1997

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

NEREE SIMONEAU

v.

SABRA SIMONEAU

PER CURIAM

	[¶1]  Neree Simoneau appeals from the judgment entered in the
Superior Court (Franklin County, Delahanty, J.) affirming the judgment of the
District Court (Farmington, Sheldon, J.) granting Neree and Sabra a divorce,
dividing their property, and awarding Sabra alimony.  On appeal, Neree
contends that the court erred in considering Neree and Sabra's period of
premarital cohabitation to determine their marital assets.  We agree and
vacate the judgment.

Background

	[¶2]  Neree and Sabra married in 1991 after a four year period of
cohabitation.  Neree commenced this action for divorce in 1994.  The court
granted a divorce on the ground of irreconcilable differences and awarded
alimony to Sabra.   The court found (1) that during the marriage, the value of
Neree's home, which he purchased in 1976, had increased by $6,500 due to
"market factors" and thus the increase in value was nonmarital; (2) that the
value of Neree's pension, assuming retirement at age 65, increased by
$42,000 during the marriage; and (3) that Neree's IRA and 401(k) together
increased in value by $17,200 during the marriage.  The court awarded Neree
his house, one of two timeshare condominiums acquired by the parties during
the marriage, his pension, IRA and 401(k). To compensate Sabra for her
marital share of the pension, IRA and 401(k), the court ordered Neree to give
Sabra a note to evidence a debt in the amount of $15,000 to be repaid over
fifteen years with 8% annual interest.  The court also ordered Neree to pay
Sabra alimony of $10 per week for 52 weeks.
	[¶3]  Sabra filed a motion for reconsideration, and the court heard
further evidence and issued an amended divorce order.  In its amended 
order, the court stated its belief that our decision in Anderson v. Anderson,
591 A.2d 872 (Me. 1991), "not only permits but requires that I apply the
divorce remedies (alimony and division of marital property) to a period that
includes not only the period of actual marriage but also the period of
premarital cohabitation, when the period of cohabitation is uninterrupted and
can be precisely determined."  The court calculated that period as beginning
in June of 1987, the time at which Neree and Sabra commenced
cohabitation.{1}
	[¶4]  The court recalculated the value of the parties' marital assets by
valuing them from the date of cohabitation.  The court found that the parties'
reduced debt secured by a mortgage on Neree's home during the period of
cohabitation and marriage and that the entire $16,380 increase in equity was
marital property.  The court recalculated the value of the marital portion of
Neree's IRA and pension, using the date of the commencement of
cohabitation rather than marriage as the starting point for valuation; awarded
Sabra a portion of Neree's pension; divided Neree's 401(k) equally; and
awarded Neree the entire value of his IRA.  The court revised its alimony
award by ordering Neree to pay Sabra $100 per week until he reaches age 62
and to provide Sabra with medical insurance for 36 months from the date of
the judgment.

Discussion

	[¶5]  Marital property is "all property acquired by either spouse
subsequent to marriage."  19 M.R.S.A. § 722-A (2) (1981){2}  "A divorce court's
determination of what property is marital and what is non-marital is reviewed
for clear error, and will not be disturbed if there is competent evidence in
the record to support it."  West v. West, 550 A.2d 1132, 1133 (Me. 1988). 
When the Superior Court acts as an intermediate appellate court, we review
directly the decision of the District Court.  Page v. Page, 671 A.2d 956, 957
(Me. 1996).  The court committed legal error by defining property that was
acquired during a period of cohabitation as marital property.  The court's
conclusion that our decision in Anderson required such action is incorrect.
	[¶6]  In Anderson we were asked to address the court's decision to
consider a wife's pre-marital financial contributions to construction of a
house that the parties agreed was marital property.  Unlike the instant
matter, in Anderson whether the house was marital property was not at issue: 
the husband "concedes that his gift transmuted the property from separate to
marital."  591 A.2d at 874.  In dividing marital property, the court in
Anderson considered numerous pre-marriage contributions by the wife,
including the fact that she had "designed the plans for the house, assisted
her husband in the work to clear the land, contributed $3,000 to pour the
foundation, worked with her husband to finish the inside of the house, and
shared equally in the mortgage payments on the house, both before and
during the marriage, until she left the marital residence in July 1988."  591
A.2d at 874.  Because 19 M.R.S.A. § 722-A allows the court to consider "all
relevant factors" in dividing marital property, including the "contribution of
each spouse to the acquisition of the marital property . . . ," we concluded
that even though some of the wife's contributions to the marital home came
before marriage,

[i]n equity and common sense, the fact that some of those
activities took place before the marriage or before the creation of
the joint tenancy does not bar the court from weighing them in
its decision as to a just division of the house that it found was
wholly marital property.

 Anderson, 591 A.2d at 874.

	[¶7]  The issue presented in this case is not the proper division of
marital property, as in Anderson, but rather the proper determination of
what constitutes marital property.  We have never held that the definition of
marital property can be extended beyond the parameters set by the
Legislature.

We cannot expand the definition the Legislature has provided to
encompass property to which the husband took title before this
couple were married.  We find nothing in the law of community
property . . . that makes it appropriate to treat as an asset of the
marriage partnership a property interest which one party
acquired during the period of a nebulous relationship between
them.  Such a result would only introduce new uncertainties into
our law.

Grishman v. Grishman, 407 A.2d 9, 12 (Me. 1979); see also West v. West, 550
A.2d 1132, 1133 (Me. 1988) (determination that husband's non-marital share
of log cabin was 23% is clear error when evidence demonstrated that at least
75% of cabin was acquired by husband prior to marriage).  In the instant
matter, the court erred in extending the definition of marital property to
include property acquired prior to Neree and Sabra's marriage.
	[¶8]  Because our decision will require the court to reconsider the
division of property, the court on remand should also reconsider its award of
alimony in light of the new financial circumstances of the parties.
	[¶9]  We note that in its order the trial court included several
observations about the personal choices made by the parties.  Although a
court should explain in its order the reasoning for its ruling, comments of a
personal nature serve no judicial purpose and must be avoided.
	The entry is:
Judgment vacated.  Remanded to the Superior Court
with the direction to remand to the District Court for
further proceedings consistent with the opinion herein
before a different judge of that court.
                                                               
Attorney for plaintiff:

Thomas S. Carey, Esq. (orally)
Carey & Associates, P.A.
P O Box 100
Rumford, ME 04276-0100

Attorney for defendant:

Edward S. David, Esq. (orally)
Joyce, Dumas, David and Hanstein, P.A.
P O Box 31
Farmington, ME 04938-0031

FOOTNOTES******************************** {1} At the hearing on the motion for reconsideration, the court stated: I'm going to take a point of departure on the law, and state that for the purposes of the divorce, the -- of the divorce remedies, including alimony and splitting up marital property, I'm going to consider that these parties' relationship began when they moved together in 1987, and not when they were married. Then I'll invite the Law Court to tell me I'm all wet . . . . [W]hat I'm basically saying is the fact that these folks married means that I am going to consider all divorce remedies back to the date of their cohabitation, not to the date of their marriage. {2} Section 722-A (2) provides: Definition. For purposes of this section only, the "marital property" means all property acquired by either spouse subsequent to marriage, except: A. Property acquired by gift, bequest, devise or descent; B. Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise or descent; C. Property acquired by a spouse after a decree of legal separation; D. Property excluded by valid agreement of the parties; and E. The increase in value of property acquired prior to the marriage.