Thompson v. Rothman, corrected 3-22-02
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2002 ME 39
Docket: 	Yor-01-193
Submitted 
  on Briefs:  	October 15, 2001
Decided:	March 8, 2002

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

GAIL THOMPSON

v.

PAUL R. ROTHMAN

CALKINS, J.

	[¶1]  Gail Thompson appeals from the judgment of the Superior Court
(York County, Brennan, J.) which vacated the judgment of the District Court
(York, Janelle, J.) clarifying a provision in the divorce judgment between
Thompson and Paul Rothman regarding the distribution of one of the marital
assets and remanded the attorney fee determination to the District Court.
Because we determine that the District Court correctly utilized its inherent
authority to clarify an ambiguous provision in the divorce judgment, we vacate
the judgment of the Superior Court. 

I.  BACKGROUND

	[¶2]  The only portion of the divorce judgment at issue in this appeal is a
provision distributing a Fidelity Spartan account which consisted of stock,
mutual funds, and money market funds.  The District Court divided the
account as follows:
	The following marital property is set aside to [Thompson]:

Thirty percent of [Rothman's] Fidelity Spartan account as of 5-15-
98, equalling an amount or value of $466,150 in said account, to
be distributed to assure equal apportionment with [Thompson] as
to tax burden respecting cost bases of stocks.  This amount shall
be paid to [Thompson] within 30 days.

	[¶3]  Following the entry of the judgment (Janelle, J.) in August 1998,
both parties moved to amend various aspects of the judgment, requested a new
trial, and moved for findings of fact.  The court did not issue the findings of
fact until October 1999.  At that time the court denied the requests for a new
trial and amended provisions in the divorce judgment concerning parental
rights and responsibilities.  Neither party appealed.  
	[¶4]  By check dated December 6, 1999, Rothman paid Thompson
$466,150.  Thompson then moved to enforce financial aspects of the divorce
judgment, and she later moved to clarify the provision regarding the Fidelity
Spartan account.  She alleged that Rothman should have distributed thirty
percent of the actual securities in the account to her instead of paying her in
cash.  Rothman opposed the motion.  The court ruled:

Due to the Court's delay in issuing Findings of Fact, considerable
time passed between the trial and the date on which the judgment
became final.  It is clear, however, from the language of the Divorce
Judgment that Plaintiff Gail Thompson was awarded 30% of the
Fidelity Spartan Account.

	In light of the foregoing, it is Ordered that:

	1.  [Thompson] is entitled to the appreciated or depreciated
value of the assets contained in the 30% of the Fidelity Spartan
Account as of the date the judgment became final and she became
entitled to the distribution thereof.

The court ordered an accounting and ordered Rothman to pay Thompson her
attorney fees incurred in her prosecution of the motion.  After receiving
Thompson's attorney fee affidavit and opposition from Rothman, the court
ordered Rothman to pay Thompson's attorney $2025 in fees and costs.
	[¶5]  Rothman appealed to the Superior Court which held that the
Fidelity Spartan provision in the judgment was unambiguous, and it meant
that Thompson was to get thirty percent of the value of the Fidelity account
determined as of May 15, 1998, which amount, as of that date, was $466,150. 
The Superior Court vacated the order of the District Court, including the
District Court's order of attorney fees to Thompson.{1}  Thompson timely
appealed to this Court.

II.  CLARIFICATION OF THE DIVORCE JUDGMENT

	[¶6]  We review the District Court's judgment directly when the Superior
Court has acted in its appellate capacity.  Costa v. Vogel, 2001 ME 131, ¶ 4,
777 A.2d 827, 828.  We have applied a two-part test to determine whether an
order clarifying a divorce judgment should stand:

(1) whether the court's prior judgment was ambiguous as a matter
of law; and (2) whether the court's construction of its prior
judgment is consistent with its language read as a whole and is
objectively supported by the record.

MacDonald v. MacDonald, 582 A.2d 976, 977 (Me. 1990) (citation omitted); see
also Austin v. Austin, 2000 ME 61, ¶ 5, 748 A.2d 996, 999.  The first question,
the existence of an ambiguity, is a question of law that we review de novo. 
Staples v. Staples, 2001 ME 121, ¶ 9, 775 A.2d 378, 380.
	[¶7]  We have suggested that whether a clarification is consistent with
the judgment as a whole and supported by the record is also subject to de novo
review, at least when the court has not considered extrinsic evidence. 
Blanchard v. Sawyer, 2001 ME 18, ¶ 5, 769 A.2d 841, 843; Hughes v. Morin,
2000 ME 135, ¶ 10, 755 A.2d 513, 516; Bliss v. Bliss, 583 A.2d 208, 210 (Me.
1990).  After reconsidering the issue, however, we conclude that de novo review
of the resolution of the ambiguity is inappropriate.  De novo review necessarily
implies that there is only one correct answer; but when a provision in a
judgment is ambiguous, it is possible that more than one interpretation may
be both consistent with the judgment as a whole and supported by the record. 
In such circumstances, deference to the trial court is appropriate.  We will
therefore review a court's clarification of an ambiguity in a judgment for abuse
of discretion.  Cf. Doucette v. Washburn, 2001 ME 38, ¶ 7, 766 A.2d 578, 581
(divorce court's "crafting [of] the judgment" is reviewed for abuse of discretion).
	[¶8]  The focus of this review will remain "whether the court's
construction of its prior judgment is consistent with its language read as a
whole and is objectively supported by the record," MacDonald, 582 A.2d at 977. 
Other factors may also be relevant to our review of the court's exercise of its
discretion, including whether the same judge who issued the original judgment
also made the clarification.  Deference is particularly appropriate when the
same judge is involved at both stages because it is the intention of the court
that issued the judgment originally that is controlling.  Greenwood v.
Greenwood, 2000 ME 37, ¶ 9, 746 A.2d 358, 361.  Of course, if the parties
present extrinsic evidence and the court makes factual findings, we will review
those findings for clear error.  See Blanchard, 2001 ME 18, ¶ 5, 769 A.2d at
843.
	[¶9]  Therefore, in reviewing the clarification of the Fidelity account
provisions, we first determine whether the contested provision is ambiguous. 
The classic definition of an ambiguity is language that is "reasonably
susceptible of different interpretations."  Blanchard, 2001 ME 18, ¶ 4, 769 A.2d
at 843 (quoting Hughes, 2000 ME 135, ¶ 9, 755 A.2d at 516).  The language at
issue is ambiguous because it can be interpreted reasonably in two ways.  It
could mean that Rothman was to pay Thompson $466,150, a sum representing
thirty percent of the value of the Fidelity Spartan account, and he was to pay
the sum within thirty days.  On the other hand, it could be interpreted to
mean that Rothman was to transfer thirty percent of the assets in the account
to Thompson within thirty days.  The provision is sufficiently ambiguous as a
matter of law that it requires clarification.
	[¶10]  We next consider whether the court abused its discretion in
adopting the interpretation of the original judgment urged by Rothman.  The
most persuasive argument presented by Thompson regarding the consistency of
the clarification with the language of the judgment as a whole is that the
phrase "as of 5-15-98, equalling an amount or value of $466,150" indicates
that the figure was there for purposes of valuation only.  In order to make an
equitable distribution, the court had to have evidence of the value of the
account, and in order to inform the parties, as well as to make findings
sufficient for appellate review, the court had to indicate to the parties the value
of the assets being distributed.  The above-quoted phrase supports that
purpose.  In fact, in the clarification order the court states that very reason: 
"By its terms [the provision] sets aside to Plaintiff Gail Thompson 30% of the
Fidelity Spartan Account, which the Court found was $466,150.00 as of May
15, 1998."{2}
	[¶11]   Giving due weight to the fact that the same judge issued both the
original judgment and the clarification, we conclude that the clarification is
consistent with the judgment read as a whole.{3}  We cannot say that the court's
interpretation of its judgment exceeded the bounds of its discretion.	
	The entry is:
Judgment of the Superior Court vacated; remanded to
the Superior Court with instructions to affirm the
judgment of the District Court.

Attorney for plaintiff:

Judy Potter, Esq.
356 Spurwink Avenue
Cape Elizabeth, ME 04107

Attorney for defendant:

D. Michael Noonan, Esq.
Shaeen & Gordon, P.A.
P O Box 977
Dovewr, NH, 03821-0977

FOOTNOTES******************************** {1} . Although the Superior Court remanded the case to the District Court, the remand was limited to further action on attorney fees. Generally, when the Superior Court remands a case to the District Court for further action, the judgment is not final for purposes of appeal. See Luchetti v. Luchetti, 445 A.2d 675, 676 (Me. 1982) (per curiam); MacDougall v. MacDougall, 403 A.2d 783, 784 (Me. 1979). Here, however, the only action left to the District Court under the Superior Court's remand order was to reconsider attorney fees in light of other motions then pending in the case. Because the attorney fee issue was not integral to either the motion for clarification of the judgment or the appeal of the order, the Superior Court's judgment is final for purposes of appeal. See M.R. Civ. P. 54(b)(2); cf. Wheeler v. Me. Unemployment Ins. Comm'n, 477 A.2d 1141, 1145 (Me. 1984). {2} . The other argument presented by the parties as to the consistency of the clarification with the language as a whole is unpersuasive. Thompson argues that the clause, "to be distributed to assure equal apportionment . . . as to tax burden respecting cost bases of stocks," demonstrates that the court intended a distribution of the assets in the account and not cash. She contends that this language would be superfluous if the court intended that she receive the sum of $466,150. Rothman responds that by paying Thompson in cash he did not pass any tax burden on to her. {3} . We do not explore whether the record objectively supports the court's interpretation because neither party has argued this point. Rothman has not called to our attention anything in the record (other than the wording of the provision itself) that is inconsistent with the clarification.