Ramsdell v. Ramsdell
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision: 1997 ME 14
Docket: WAS-94-642
Submitted on briefs December 13, 1996
Decided  January 28, 1997

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


SONJA E. RAMSDELL

v.

KENNETH W. RAMSDELL


CLIFFORD, J.

	[¶1]  Kenneth W. Ramsdell, appeals from a divorce judgment entered
in the Superior Court (Washington County, Marden, J.), contending that the
court abused its discretion or erred in awarding alimony to Sonja E.
Ramsdell, and in dividing equally his workers' compensation settlement. 
Kenneth also challenges the court's denial of his M.R. Civ. P. 60(b) motion
for relief from judgment and argues that the court (Mills, J.) erroneously
entered a contempt order against him.  Finding no error or abuse of
discretion, we affirm the judgment.
	[¶2]  Sonja and Kenneth were married in 1966.  Sonja filed for
divorce in December 1991.  In February 1992, after stipulations by the
parties, the court (Silsby, J.) entered a temporary order pending divorce
pursuant to which Kenneth was required to pay Sonja $400 per week in
spousal support, Sonja was given sole possession of the marital residence,
and Sonja and Kenneth were to share equal responsibility for the marital
bills.  A subsequent order entered in May of 1992 (Smith, J.) addressed
discovery issues but did not address a motion to amend the temporary order
of spousal support filed by Kenneth.
	[¶3]  Sonja filed two motions for contempt alleging that Kenneth had
failed to pay her pursuant to the temporary order.  Following a hearing on
the second motion in May of 1994, the court found Kenneth in contempt
and determined the arrearages to be $53,243.50.  The court ordered
Kenneth to pay Sonja $100 per week toward the arrearages.  In addition,
the court declined to hear a Rule 60(b) motion for relief from judgment
filed by Kenneth shortly before the hearing on the motion for contempt. 
The court also did not address Kenneth's previously filed motion to amend
the temporary order concerning spousal support.  At the hearing, Kenneth
testified that he no longer could afford to pay Sonja, had suffered three
heart attacks, lost his job in his family's businesses, moved to Florida, was
earning approximately $300 per week, and had declared bankruptcy.  In
finding Kenneth in contempt, the court specifically concluded that he was
not credible "regarding any issue" including his reasons for not working. 
The court found that he either was employed or had the capacity to work
during the entire period between the entry of the temporary order and the
contempt hearing.  Kenneth has appealed the contempt order.
	[¶4]  In October 1995, the court held the final hearing on the divorce
and simultaneously heard Kenneth's 60(b) motion.  The court granted a
divorce and ordered Kenneth to pay alimony in the amount of $800 per
month to Sonja.  The court found that Kenneth received $30,000 in a
settlement of a workers' compensation claim, determined that it was
marital property, and concluded that the settlement should be equally
divided.  Because Kenneth was unable to satisfactorily account for the
$30,000, however, the court assigned to Kenneth the sole responsibility for
the marital debt and ordered him to hold Sonja harmless on that debt
instead of ordering distribution of the workers' compensation funds.  The
court denied Kenneth's 60(b) motion and refused to disturb the previously
entered order of contempt.  Kenneth's appeal followed.
I.
	[¶5]  Kenneth contends that the court's alimony award to Sonja was
excessive because it was not based on what the court found Kenneth to be
actually earning at the time of the divorce, $300 to $380 per week.  We
disagree.  "The primary purpose of alimony is to provide ''maintenance and
support'' for the future needs of the payee spouse."  Noyes v. Noyes, 662
A.2d 921, 922 (Me. 1995) (citations omitted). In reaching a determination
of alimony, the court is required to consider the factors enumerated in 19
M.R.S.A. § 721 (Supp. 1996).{1}  In reviewing alimony awards, we "defer to
the discretion of the trial court unless 'the court has violated some positive
rule of law or has reached a result which is plainly and unmistakenly an
injustice that is 'so apparent as to be instantly visible without argument.' "
Arey v. Arey, 651 A.2d 351, 354 (Me. 1994) (quoting Bryant v. Bryant,  411
A.2d 391, 395 (Me. 1980) (citations omitted)).  Factual findings are
reviewed for clear error.  Quin v. Quinn, 641 A.2d 180, 181 (Me. 1994).
	[¶6]  Although the court found Kenneth's current actual earnings to be
$300 to $380 per week, the court determined that based on his experience
and training,{2} Kenneth was able to earn $36,000 annually.  The court
acknowledged that Kenneth had a back condition but, given the evidence,
did not believe that he suffered from a heart problem that interfered with
his earning ability.  The court found Sonja's earning capacity to be $16,000,
that she had few assets, serious medical problems that required attention,
and that she could not afford medical insurance.  Moreover, the court found
"significant economic misconduct" on Kenneth's part by failing to assist
Sonja, failing to account for the workers' compensation funds, and removing
from the State of Maine property subject to marital debt while Sonja was
liable for that debt.  
	[¶7]  In awarding alimony, a court may take into account the earning
potential, the standard of living enjoyed during the marriage, Gray v. Gray,
609 A.2d 694, 698 (Me. 1992), and the payee spouse's earning capacity,
experience and health.  Harding v. Murray, 623 A.2d 172, 176 (Me. 1993). 
The evidence reflects that Sonja and Kenneth enjoyed a high standard of
living during the marriage.  The court may also consider, as it did here, the
economic misconduct of a party.  Quin v. Quinn, 641 A.2d at 181.  The award
of alimony to Sonja was within the court's discretion.
II.  
	[¶8]  Kenneth also contends that the court abused its discretion in
awarding one-half of the workers' compensation settlement, conceded by
Kenneth to be marital property, to Sonja in the form of being held harmless
on the marital debt.  Disposition of marital property is committed to the
sound discretion of the court.  Arey v. Arey, 651 A.2d 351, 353 (Me. 1994). 
The court determined that Kenneth's creation of marital debt without
Sonja's knowledge or consent had left her with significant obligations but
few assets.  Moreover, Kenneth could not account for the $30,000 award. 
Given Sonja's economic circumstances, the court did not abuse its
discretion in awarding half of the workers' compensation award to Sonja nor
in determining that it take the form of holding Sonja harmless on the
marital debt.
III.
	[¶9]  Kenneth further argues that the court improperly failed to
address his motion to amend the temporary order, that his motion for relief
from judgment was not heard at the same time as the motion for contempt,
and that the motion for relief was improperly denied.
	[¶10]  Although Kenneth was entitled to a ruling on his motion to
amend the temporary order, and the court should have made such a ruling,
Kenneth has demonstrated no prejudice resulting from this failure.  The
hearings held on the contempt motion, the motion for relief from judgment,
and the final divorce hearing involved the same issues raised by Kenneth's
motion to amend.  He contends that he was unable, for various reasons, to
pay alimony or comply with the temporary order.  The court's findings on
those issues against Kenneth, particularly in regard to his health and his
ability to earn, do not support an amendment to the temporary order. 
Accordingly, the failure of the court to rule on Kenneth's motion to amend
is harmless error.
	[¶11]  Kenneth also contends that his Rule 60(b) motion for relief
from judgment should have been heard at the same time as the court heard
Sonja's motion for contempt.  Kenneth's attorney filed the Rule 60(b)
motion with the court two weeks prior to the date previously scheduled for
the hearing on contempt.  The motion for relief was not placed on the
hearing schedule, however, and the motion was heard at the time of the
final divorce hearing.  Assuming that the timing of Kenneth's motion
entitled him to a hearing on the same date as the contempt hearing, the
contempt hearing involved the same issues raised by the motion for relief,
and the court's findings on those issues would not justify relief pursuant to
Rule 60(b).{3}  The court found Kenneth's testimony not credible on any issue
and concluded that he was always working or able to work and fully capable
of making the payments pursuant to the temporary order of support.
	[¶12]  Kenneth had a full opportunity to be heard at the contempt
hearing and at the hearing on his motion for relief from judgment.  He
advanced circumstances surrounding his health, change of economic
circumstances, and earning capacity during the contempt hearing, and the
court found none of his testimony credible.  The findings made by the court
that Kenneth was able to work and that his earning capacity was not affected
by his claimed heart problems are supported in the record and are not
clearly erroneous.  Accordingly, we do not disturb the court's finding of
contempt and its denial of the Rule 60(b) motion for relief from judgment.
	The entry is:
Judgment affirmed.
                                                               

Attorney for plaintiff:			Attorney for defendant:

Norman P. Toffolon, Esq.	Francis J. Hallissey, Esq.
P O Box 58						P O Box 436
Machias, ME 04654				Machias, ME 04654

FOOTNOTES******************************** {1}. That section provides: § 721. Alimony. 1. Factors. The court shall consider the following factors when determining an award of alimony: A. The length of the marriage; B. The ability of each party to pay; C. The age of each party; D. The employment history and employment potential of each party; E. The income history and income potential of each party; F. The education and training of each party; G. The provisions for retirement and health insurance benefits of each party; H. The tax consequences of the division of marital property, including the tax consequences of the sale of the marital home, if applicable; I. The health and disabilities of each party; J. The tax consequences of an alimony award; K. The contributions of either party as homemaker; L. The contributions of either party to the education or earning potential of the other party; M. Economic misconduct by either party resulting in the diminution of marital property or income; N. The standard of living of the parties during the marriage; and O. Any other factors the court considers appropriate. {2}. Kenneth had extensive experience in the operation of family automobile dealership and construction businesses. {3}. M.R.Civ.P. 60(b) states in part: (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment, order, or proceeding for the following reasons; (1) mistake, inadvertence, surprise, or excusable neglect; (2)newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.