Nicholson v. Nicholson, revised 3-20-00
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 12
Docket:	Cum-99-342
Submitted
on Briefs:	November  30, 1999
Decided:	January 24, 2000, revised March 20, 2000	

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

STEPHEN J. NICHOLSON

v.

JULIE A. NICHOLSON

CLIFFORD, J.

	[¶1]  Stephen J. Nicholson appeals from orders of the Superior Court
(Cumberland County, Brennan J.) ordering that Julie A. Nicholson, his
former wife, pay him child support, and determining that Stephen is in
arrears for child support to the Department of Human Services.  Stephen
contends that the court abused its discretion when it:  (1) made the award
of child support to be paid by Julie to him effective from the date of the
hearing and not from the date of the original motion requesting modification
of support; (2) refused to adjust the amount of that award upward from the
child support guidelines to account for the higher cost of living in England;
and (3) refused to award him costs.  In addition, he contends that the
Superior Court lacked jurisdiction over the issue of his child support
arrearage, and that in any event, the court improperly determined the
amount of the arrearage.   Finding neither error nor any abuse of discretion,
we affirm the judgment.
	[¶2]  In 1985, Stephen and Julie were divorced in a judgment issued
by the Superior Court.  The primary residence of their daughters, Ruth and
Allyson, was determined to be with Julie, and Stephen was ordered to pay
child support in the amount of $20.00 per child per week.  Stephen, a
citizen of Great Britain, had returned to England.  Because Julie was
receiving public assistance, the Department filed a petition pursuant to the
Uniform Reciprocal Enforcement of Support Act, 19 M.R.S.A. §§ 331-420
(1981 & Supp. 1988), with the appropriate English authorities to enforce
the child support order.  The Magistrates Court (England) responded on
January 30, 1989 by issuing an order that Stephen pay £10.00 per child per
week.
	[¶3]  Stephen lost his teaching job in 1994 and has not obtained
employment in England since that time.  In 1995, Stephen petitioned the
Magistrates Court in England to reduce his support obligation to a nominal
amount for Ruth and to eliminate his obligation for Allyson, who had since
moved to England to live with him.  The Magistrates Court ordered that
Stephen pay nominal amounts for both Ruth and Allyson.  Pursuant to
Stephen's petition, the Magistrates Court also relieved him of arrearage
under its prior order.
	[¶4]  At the same time, Stephen sought a modification of the Maine
child support order in the Superior Court, asking that the primary
residence of Allyson be with him.  The Superior Court recognized that
Allyson should reside with Stephen, but dismissed all other pending
motions and did not rule on any change in child support.
	[¶5]  In 1997, English authorities forwarded to the Superior Court
Stephen's petition for the Department to intervene and obtain child support
for Allyson from Julie and to remit those funds to England.  The Department
accordingly moved to amend the Maine child support order.  Julie
responded to the Department's motion and asserted a right to setoff against
any award of child support for Allyson the court might require of Julie to be
applied to the arrearage owed by Stephen under the court's prior support
orders.  Stephen alleged that the Department had a conflict of interest, and
the Department then petitioned to withdraw as Stephen's representative.
	[¶6]  In a common sense effort to save substantial time and expenses
of travel in a case involving parties from Maine and from England, the
Superior Court  conducted a hearing by telephone.  The court required the
Department to participate.  At the hearing, the Department asserted that
the arrearage was owed to it because Julie had received public assistance
during the period in question.  Stephen testified, and Julie and the
Department conceded, that he and Allyson had been receiving public
assistance in England since July 1994.  Evidence showed that Julie was now
employed at Jackson Brook Institute and was able to support Allyson.  The
Department asserted that the arrearage was owed to it because Julie had
received public assistance during the period in question.  The court ordered
that Julie pay support in the amount of $93.00 per week to Stephen on
behalf of Allyson and reserved ruling on the issue of arrearage pending an
accounting by the Department.  The court, in its order dated January 30,
1998, made the support order effective December 12, 1997, the date of the
hearing, declining to use July 7, 1997, the date the original petition was
filed.
	[¶7]  Stephen and Julie both appealed, but we dismissed the appeals
because the issue of the arrearage had not been decided.  Stephen then
moved to dismiss the Department's request for arrearage on the ground that
the Department did not have standing.  Based on the written submissions of
the parties, the court concluded that Stephen owed the Department
$7,662.61 in arrearages and denied Stephen's motion to dismiss.  This
appeal by Stephen followed.

I.  AWARD OF SUPPORT TO STEPHEN

	[¶8]  Stephen first contends that the Superior Court abused its
discretion when, in its order requiring Julie to pay him child support, it
based the award on the child support guidelines, see 19-A M.R.S.A.
§§ 2001-2009 (1998), and improperly refused to consider the increased
cost of living in England to which Stephen and Allyson were subject. 
Stephen also contends that the court acted outside of the bounds of its
discretion (1) when it refused to order that those payments by Julie be
made retroactive to the date the motion for such payments was filed, and (2)
when it refused to award him costs.
	[¶9]  We review a child support award for an abuse of discretion.  Such
an order will be vacated only "if it results in a plain and unmistakable
injustice, so apparent that it is instantly visible without argument."  Harvey v.
Robinson, 665 A.2d 215, 217 (Me. 1995).  The support obligation derived
from the guidelines is presumed to be the proper amount ordered to be
paid.  See 19-A M.R.S.A. § 2005.  The party seeking to have the court deviate
from the guidelines has the burden to overcome the presumption.  See
19-A M.R.S.A. § 2007(1) (providing that the court may deviate from the
guidelines if it finds that following them would be "inequitable" due to
considerations found in section 2007(3)).  Although the court considered
Stephen's request that there be a deviation upward from the child support
guidelines,{1} it concluded that any difference in the higher cost of living in
England for Stephen was offset by the costs of visits between Maine and
England, and used the guidelines to determine its $93.00 weekly support
award.  We cannot say that the court was compelled to deviate upward from
the child support guidelines, or that Stephen rebutted, as a matter of law,
the presumption that the guidelines reflect the proper amount of support. 
The court did make its child support award retroactive, but not fully
retroactive to the date of the motion for child support.  Retroactivity of a
support award is within the broad discretion of the court.  See Finn v. Finn,
517 A.2d 317, 319 (Me. 1986).
	[¶10]  A decision to award costs is similarly reviewed for an abuse of
discretion.  See Estate of Stowell, 636 A.2d 440, 442 (Me. 1994).  The
determinations made by the court with respect to the effective date of the
child support that Julie was ordered to pay, and with respect to costs, did
not result in a plain and unmistakable injustice, so apparent that it is
instantly visible without argument.  The court acted within the range of its
considerable discretion.

II.  JURISDICTION OVER ARREARAGES OWED BY STEPHEN

	[¶11]  Stephen also contends that the English courts have exclusive
jurisdiction with regard to child support arrearage, and that the Magistrates
Court had conclusively relieved him of all arrearage with respect to the
support of Allyson.  The Department contends that the Magistrates Court's
order has no bearing on the order of the Maine court for the period prior to
the Magistrates Court's order.
	[¶12]  Under section 2903, a Maine court "issuing a support order . . .
has continuing, exclusive jurisdiction over a child support order . . . [a]s long
as this State remains the residence of the obligor, the individual obligee or
the child for whose benefit the support order is issued."  19-A M.R.S.A.
§ 2903(1)(A) (1998).  Stephen relies on a provision of the Uniform
Interstate Family Support Act that provides that Maine "shall recognize the
continuing, exclusive jurisdiction of a tribunal of another state{2} that has
issued a child support order pursuant to a law substantially similar to this
chapter."  19-A M.R.S.A. § 2903(4) (1998).  A court "may not exercise its
continuing jurisdiction to modify the order if the order has been modified by
a tribunal of another state pursuant to a law substantially similar to this
chapter."  19-A M.R.S.A. § 2903(2). 
	[¶13]  Stephen misapprehends section 2903, subsection 4.  Although
that subsection requires that Maine recognize the jurisdiction of a court of
another state, it does not mean that a Maine court loses its power to enforce
a prior, valid order with regard to arrearage that accrued during the period
when the order was valid.  Section 2903(3)(A) very clearly provides for such
authority.  Even after an order has been modified by a tribunal of another
state, the court that issued the original order may enforce the order "as to
amounts accruing before the modification."  19-A M.R.S.A. § 2903(3)(A). 
Here, Julie, the obligee spouse under the prior award for the support of
Allyson, see 19-A M.R.S.A. § 2903(1)(A), remained a resident of Maine.  The
arrearage sought by the Department is for a period of time before Stephen's
obligation was modified by the English courts.  Accordingly, the
jurisdictional statute is satisfied, and the Superior Court has jurisdiction
with respect to the arrearage owed by Stephen.
	[¶14]  Finally, we find no error in the method used by the court to
determine the arrearage, and Stephen has not demonstrated clear error in
the court's factual conclusion that $7,662.61 is the amount of arrearage that
Stephen owes.

	The entry is:
Judgments affirmed.

For plaintiff:
	
Stephen J. Nicholson
"Amberley"	
11 Berkeley Road
Wroughton, Wiltshire
England SN4 9BN

For defendant:

Julie A. Nicholson
P O Box 45
Gorham, ME 04038

Attorneys for intervenor Dept. of Human Services:

Andrew Ketterer, Attorney General
Ethna Mary Friedman, Asst. Attorney General
6 State House Station
Augusta, ME 04333-0006