Quin v. Quinn , 696 A.2d 432 ( 1997 )

GLASSMAN, Justice.

[¶ 1] Robert M. Quinn appeals from the judgment entered in the Superior Court (Penobscot County, Kravchuk, J.) affirming the judgment of the District Court (Bangor, Mead, J.), dated March 24, 1995, following our decision in Quin v. Quinn, 641 A.2d 180 (Me.1994), in which we vacated the judgment entered in the Superior Court (Penobscot County, Kravchuk, J.) affirming the judgment of the District Court (Bangor, Mead, J.), dated February 10, 1992, granting a divorce to Robert M. Quinn and Anne Marie Quinn,¹ and instructed the Superior Court to remand the matter to the District Court for further proceedings consistent with our opinion.

[¶ 2] Robert contends that on the remand of this case the District Court erred as a matter of law by reconsidering issues of the division of marital property and alimony and by the extent it punished him for his economic misconduct during the course of the marriage. Our review of the record discloses no error of law or abuse of the trial court’s discretion, and accordingly, we affirm the judgment.

[¶3] When, as here, the Superior Court acts as an intermediate appellate court, we review directly the record before the District Court to determine if there was any error of law that affected the validity of the judgment. Page v. Page, 671 A.2d 956, 957 (Me.1996). “Issues arising out of a divorce action, such as property division [and] alimony ... are within the court’s sound discretion ... and the judgment of the [trial] court on such matters is entitled to substantial deference.” Knight v. Knight, 680 A.2d 1035, 1037 (Me.1996) (citing Shirley v. Shirley, 482 A.2d 845, 847-48 (Me.1984)).

[¶4] Robert first contends the District Court erred as a matter of law by its reconsideration of the division of marital property and alimony. He argues that absent a substantial change in the financial condition of the parties, the court’s authority on remand was limited to an adjustment for the economic impact of his transfer of the Sugarloaf condominium. We disagree. In Quin v. Quinn, 641 A.2d at 181-82, we determined that the trial court had committed clear error by finding that there was no economic misconduct by Robert’s unilateral transfer of the Sugarloaf condominium, purchased with marital funds, to the parties’ adult children for a nominal consideration.

[¶ 5] Recognizing the impact of a single economic issue on all others, we have made clear in our opinions vacating divorce judgments on an economic issue that the trial court is in no way to be impeded by its previous decision. See, e.g., Grishman v. Grishman, 407 A.2d 9, 12 (Me.1979). In arriving at a new judgment in the case, the trial court may properly consider a wide range of pertinent factors with the discretion to open the record to allow the parties to introduce new evidence relating to the economic issues properly before the court. Sweeney v. Sweeney, 534 A.2d 1290, 1292 (Me.1987). These principles were reaffirmed in Quin v. Quinn, 641 A.2d at 182, wherein we stated, “On remand, the District Court should take into account the defendant’s economic misconduct and reconsider the alimony issue, and to the extent necessary, all of the economic issues.” The application of these well-established principles to the procedure followed by the District Court in the present case refutes Robert’s contention that the District Court erred as a matter of law by not confining its consideration to the economic impact of Robert’s economic misconduct in arriving at the present judgment.

[¶ 6] Robert next contends the trial court erred as a matter of law by punishing him for his economic misconduct. He argues that this erroneous punishment is manifested by the clearly erroneous findings on which the court based its award of the marital home to Anne Marie and the amount of alimony awarded to her. We disagree. “The disposition of marital property is a matter committed to the sound discretion of the trial court and reviewable only for an abuse of discretion.” Arey v. Arey, 651 A.2d 351, 353 (Me.1994). See 19 M.R.S.A. § 722-A (1981 & Supp.1996) (governing disposition of property, inter alia, in a proceeding for a divorce). Absent a violation of some positive rule of law we defer to the discretion of the trial court and will overturn its decision as to the disposition of marital property and the amount of an alimony award “only if it results in a plain and unmistakable injustice, so apparent that it is instantly visible without argument.” Arey v. Arey, 651 A.2d at 353-54 (citations omitted). See also 19 M.R.S.A. § 721 (Supp.1996) (setting forth factors to consider when determining an award of alimony that includes “[economic misconduct by either party resulting in the diminution of marital property or income”); Strater v. Strater, 159 Me. 508, 518, 196 A.2d 94 (1963) (“There is no universal standard which [the court] may apply in determining the amount of alimony in any given case.”); Shirley v. Shirley, 482 A.2d at 847-48 (incidents of divorce such as property division and alimony addressed to trial court’s sound discretion, and “it is particularly inappropriate ... to undertake an independent evaluation based on a cold record.”).

[¶ 7] The record reflects that following our decision in Quin v. Quinn, the trial court, after a conference with the parties, issued a scheduling order that reopened the record to allow the parties to engage in a course of discovery to enable the court to evaluate the current economic status of each party. Both parties engaged in the discovery process without objection. After a two-day hearing in January 1995, at which each party appeared and testified regarding that party’s finances, followed by written argument by the parties, the court issued its judgment on March 24, 1995, followed by additional findings of fact and conclusions of law on June 14, 1995. In arriving at its decision, the court stated, “After considering the economic misconduct of the Defendant, the economic benefit of the misconduct to the Defendant, and the current economic circumstances of the parties _” (Emphasis added).

[¶8],Although Robert focuses entirely on the value of the Sugarloaf condominium to support his contention that the amount of the alimony award to Anne Marie can only be attributable to punishment for his economic misconduct, the findings of the court disclose that it considered a wide range of pertinent factors in reaching its decision, including the following:² Anne Marie’s annual income is $16,000 and Robert’s is $35,000; the value of Robert’s nonmarital property substantially exceeds that of Anne Marie’s; Robert has voluntarily reduced his income stream and productivity in anticipation of the divorce; he has permitted the Quinn Agency to occupy the marital real property at 272 Hammond Street, Bangor,³ rent free and has chosen to eliminate a source of marital income by failing to rent other portions of the building. Since the commencement of the divorce action, Robert has failed to account to Anne Marie for any rental income relating to that property. During the period Robert’s salary has gone down, production at the Quinn Agency has increased, and although during this period the sales people at the Agency received commissions, Robert elected not to do so. Robert freely supplements his income by his personal use of the Quinn Agency assets for expenses, including living costs, travel, entertainment, vacations and gifts. He admits to taking income as loans from the corporation rather than commissions or increased salary. He continues to use the Su-garloaf condominium as a vacation residence for which he pays no rent and has caused the Quinn Agency to pay an average annual amount of $3000 for all related costs for his use, including his personal ski lift tickets.

[¶ 9] Our review of the record discloses that the findings of the trial court are supported by the evidence and are not clearly erroneous. Nor did the court’s disposition of the marital property and award of alimony to Anne Marie violate “some positive rule of law or [reach] a result which is [so] plainly and unmistakably an injustice that is so apparent as to be instantly visible without argument.” Arey v. Arey, 651 A.2d at 354 (citation and quotation omitted).

The entry is:

Judgment affirmed.

1 . Pursuant to the judgment, dated February 10, 1992, the plaintiff resumed the use of her prior name.

2 . Based on the disclosure in the record that in February 1992 Anne Marie was 56 years of age and Robert was 60 years of age, at the time of the judgment at issue here the parties were 59 and 63, respectively. The record further discloses that the parties were married on June 28, 1958, have five adult children, the issue of the marriage, and contributed equally to the acquisition of their marital property.

3 . This property was set aside to Robert, together with the Quinn Agency. Reading Consultancy, owned and operated by Anne Marie and set aside to her, rents space at approximately $3,000 a year. There is no evidence in the record that the marital home, set aside to Anne Marie, is income producing property.