Diane L. Charette v. Dale N. Charette , 60 A.3d 1264 ( 2013 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2013 ME 4
Docket: Aro-12-168
Submitted
On Briefs: November 28, 2012
Decided: January 8, 2013
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, MEAD, GORMAN, and JABAR, JJ.
DIANE L. CHARETTE
v.
DALE N. CHARETTE
PER CURIAM
[¶1] Dale N. Charette appeals from a judgment entered by the District Court
(Fort Kent, Soucy, J.) denying his motion to modify the parties’ divorce judgment
and finding him to be in contempt of the divorce judgment for failing to pay
spousal support as ordered. Finding no error, we affirm the judgment. We also
take this opportunity to discuss the manner in which Charette and his counsel
raised an allegation of judicial bias and the court’s exemplary response to it.
I. BACKGROUND
[¶2] The historical facts are not disputed. The parties were married in 1980
and divorced in 2007. The divorce judgment incorporated a settlement agreement
in which the parties agreed that Dale would pay Diane L. Charette $200 per week
as general spousal support until the death of either of them or Diane’s remarriage.
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The spousal support award was made subject to future judicial review, but by
agreement it could not be increased.
[¶3] In July 2010, Dale filed a motion to modify the divorce judgment to
eliminate or reduce his spousal support obligation on the grounds that (1) he could
no longer afford to pay it due to a disability; and (2) Diane was cohabitating with
her boyfriend, thereby eliminating her need for support. Following a hearing, the
court entered an order on March 18, 2011, finding that a reduction was warranted
due to Dale’s significantly changed medical circumstances; however, the court
found that Diane’s relationship did not warrant any change in spousal support
because “[t]here is no evidence that [Diane and her boyfriend] share the burdens of
maintaining a household.” Accordingly, the court reduced Dale’s spousal support
obligation to $165 per week.
[¶4] In September 2011, Diane filed a motion to enforce, alleging that Dale
had failed to make five of the reduced payments; the motion was set for hearing on
October 28. On the day of the hearing, seven months after the court granted his
first motion to modify, Dale again moved the court to eliminate or further reduce
his spousal support obligation on the same grounds advanced in his original
motion. The court heard and granted Diane’s motion to enforce and ordered Dale
to pay the arrearage owed; it did not hear Dale’s renewed motion at that time. On
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November 7, Diane filed a motion for contempt, asserting that Dale had failed to
comply with the court’s October 28 order.
[¶5] On January 23, 2012, the court held a contested hearing on Dale’s
second motion to modify and Diane’s motion for contempt. Dale was represented
by his current counsel and Diane was unrepresented. Following the hearing, upon
finding that Dale had not demonstrated a further significant change in his financial
circumstances and that Diane’s continuing relationship still did not result in a
significant change in her need for support, the court issued a written order denying
further modification of the spousal support award. The court also found Dale to be
in contempt for failing to pay support as ordered, resulting in a $3990 arrearage at
the time of the hearing.
[¶6] Dale moved for further findings pursuant to Maine Rule of Civil
Procedure 52(a). In response, on March 21, 2012, the court entered extensive
findings of fact and conclusions of law. This appeal followed.
II. DISCUSSION
A. Modification of Spousal Support
[¶7] The court could modify the spousal support award if it found “a
substantial change in either the payor or payee spouse’s financial condition.” Day
v. Day, 1998 ME 194, ¶ 5, 717 A.2d 914; see 19-A M.R.S. § 951-A(4) (2012);
Levy, Maine Family Law § 8.4 at 8-21 (2010 ed.). Dale asserts that he satisfied
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both alternatives at the hearing on his second motion to modify through evidence
of Diane’s cohabitation and his own diminished financial circumstances. We
review the court’s decision concerning a proposed modification of the spousal
support award for an abuse of discretion, considering “(1) whether factual findings,
if any, are supported by the record pursuant to the clear error standard; (2) whether
the court understood the law applicable to its exercise of discretion; and (3) given
the facts and applying the law, whether the court weighed . . . the applicable facts
and made choices within the bounds of reasonableness.” McAllister v. McAllister,
2011 ME 69, ¶ 11, 21 A.3d 1010 (alterations removed) (quotation marks omitted).
1. Cohabitation
[¶8] In its March 2011 order reducing Dale’s spousal support obligation to
$165 per week, after finding that at that time “[t]here is no evidence that [Diane
and her boyfriend] share the burdens of maintaining a household, or that their
commitment to each other will be long-lasting,” the court posited that “[i]f the
relationship endures, and [her boyfriend] and Ms. Charette enter into a mutually
supportive relationship that is the functional equivalent of marriage, a reduction or
cessation of spousal support may be appropriate.” Although Dale asserts that this
observation established the “law of the case” and required the court to grant his
second motion to modify seven months later once he showed that the relationship
was still ongoing, the court (1) could not do so without finding a substantial change
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in circumstances occurring between the two motions, see id. ¶ 12; and (2) did not,
on this record, abuse its discretion in finding that the relationship between Diane
and her boyfriend was not a financial one reducing her need for support.
[¶9] Dale’s testimony at the modification hearing established that Diane and
her boyfriend had a significant, ongoing relationship, a fact that Diane did not
dispute. In the context of that relationship her boyfriend helped out around
Diane’s home; for example, he did some minor carpentry work, mowed her lawn,
and did her snow blowing. Dale failed to prove that Diane’s boyfriend provided
direct financial support of any significance to Diane, however, and the court was
entitled to credit Diane’s and her boyfriend’s testimony that he maintained his own
home and paid his own bills, while Diane paid hers. Both Diane and her boyfriend
testified that their relationship did not involve financial assistance in either
direction. See State v. McCurdy, 2002 ME 66, ¶ 10, 795 A.2d 84 (“The weight of
the evidence and . . . determinations of witness credibility are the exclusive
provinces of the factfinder.”).
[¶10] In determining the proper amount of spousal support to award a court
may consider as a factor whether the recipient shares expenses with another
person. See Harmon v. Harmon, 2009 ME 2, ¶ 8, 962 A.2d 959. In deciding a
motion to modify, a court may consider the recipient’s cohabitation with another
person if the cohabitation was not anticipated by the divorce decree. See Haag v.
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Haag, 609 A.2d 1164, 1165 (Me. 1992). However, unmarried cohabitants have no
legal obligation to support each another, Mitchell v. Mitchell, 418 A.2d 1140, 1143
(Me. 1980), and “cohabitation, which [this Court] has defined as maintaining a
relationship with another person that is the practical equivalent of marriage, [does
not] establish[] a prima facie case for termination of spousal support,” Levy,
Maine Family Law § 8.4 at 8-20 (2010 ed.) (quotation marks omitted).
[¶11] Here, although the parties’ settlement agreement and the divorce
judgment anticipate the termination of spousal support upon Diane’s remarriage,
neither mentions the possibility of her cohabitating with someone. Moreover, the
evidence presented at the hearing did not establish the existence of a relationship
that is the practical equivalent of a marriage; to the contrary, the weight of the
evidence supported a conclusion that the relationship did not involve any financial
support at all. For that reason, the court did not abuse its discretion in declining to
further lower Dale’s spousal support obligation on this ground.
2. Dale’s Ability to Pay Spousal Support
[¶12] The court’s factual finding that Dale was able to continue paying
$165 per week in spousal support is not clearly erroneous. See McAllister, 2011
ME 69, ¶¶ 11-12, 21 A.3d 1010. Dale points to his loss of $450 per month in
rental income caused by a tenant leaving a mobile home that Dale owns in
disarray, but at the January 2012 hearing his wife testified that the tenant had paid
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rent through December 2011, and that she hoped to have the property rented again
by March 2012. Dale has an IRA worth more than $13,000. His wife testified at
the hearing that she and Dale had a household income of $50,000 in 2011, which
included $8181 in gifts from their parents and withdrawals from the IRA. They
effectively live rent-free in a house owned by Dale’s father. Furthermore, in the
time period between Dale’s first motion to modify and the second, he put down
$3000 on a $28,000 pontoon party boat that he bought with his father and his son.
[¶13] Dale’s general assertion that money is tight at the end of the month
did not, in the face of the evidence recited above and the court’s finding that other
evidence proffered by Dale and his wife was not persuasive, compel the court to
find that Dale’s ability to pay spousal support had significantly changed in less
than one year to the extent that justice required a further reduction in support. See
19-A M.R.S. § 951-A(4).
B. Contempt
[¶14] The court found by clear and convincing evidence that Dale
accumulated a $3990 arrearage in the months following its March 2011 order
reducing his spousal support obligation, that he had the ability to make the missed
payments, and that he was therefore in contempt of the order. It ordered him to
pay an additional $400 per month until the arrearage was cleared or face
incarceration should he fail to meet his burden at a show cause hearing. Dale does
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not dispute the amount of the arrearage; rather, he contends that he did not have the
ability to pay.
[¶15] In addressing a contemnor’s challenge we review the court’s factual
findings for clear error and, if none is found, we then review the judgment of
contempt for an abuse of discretion. Lewin v. Skehan, 2012 ME 31, ¶ 18,
39 A.3d 58. At the hearing, it was Diane’s burden to establish by clear and
convincing evidence that Dale failed or refused to comply with the court’s support
order and that he had the present ability to comply. See id. ¶ 19.
[¶16] There is ample competent evidence in this record to support the
court’s finding that Dale had the ability to make the $3990 in missed payments,
beginning with the evidence that he paid $3000 toward the purchase of a party
boat. The court also had evidence of Dale’s $13,000 IRA, which his wife testified
had been used to cover other shortfalls in their household budget. Assuming
arguendo that the $3000 could not be recovered by selling the boat, less than
one-third of the remaining IRA would have satisfied the entire arrearage existing at
the time of the hearing. Because the court’s factual finding that Dale had the past
and present ability to comply with its March 2011 order was not clearly erroneous,
its judgment of contempt was not an abuse of its discretion.
[¶17] Dale further contends that the contempt order must be vacated
because the court did not sufficiently articulate the facts supporting its
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determination that he had the ability to pay spousal support as ordered. The court
had discretion in fashioning its response to Dale’s motion for further findings
because
[a] trial court is not required to make further findings in response to
every post-judgment request for findings pursuant to M.R.
Civ. P. 52(a). If the court’s original findings are sufficient to support
its conclusions, and if those findings are supported by evidence in the
record, a decision is sufficient if the findings of fact and conclusions
of law appear therein.
In re Jacob B., 2008 ME 168, ¶ 15, 959 A.2d 734 (quotation marks omitted); M.R.
Civ. P. 52(a). Here the findings the court specifically made, both initially and in
response to Dale’s motion, coupled with the evidence in the record discussed
above, support its ultimate finding by clear and convincing evidence that Dale
could have, but did not, pay spousal support as ordered.
C. Allegation of Judicial Bias
[¶18] In his motion for further findings, Dale requested three findings that
insinuated bias on the part of the trial judge. Specifically, Dale requested that the
court find that (1) the judge did not disclose that he employed Diane’s brother to
provide carpentry services for him, (2) Diane testified that her brother holds a
mortgage on a building she owns in Fort Kent, and (3) the judge did not disclose
that the parties’ daughter is a good friend of his step-daughter.
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[¶19] The court directly addressed and rejected Dale’s insinuation in its
statement of further findings. Pointing out that neither Diane’s brother nor the
parties’ daughter were witnesses in the case and that neither had any connection to
the disputed issue of spousal support, the judge explained that he had hired Diane’s
brother to perform general handyman work on an apartment building in Fort Kent
that he owned with his siblings, without knowing of his employee’s relationship to
Diane; and that his step-daughter might have been a close friend of the parties’
now-adult daughter when they were in school some years before, but he was
“unaware of any ongoing relationship between them.”
[¶20] Dale filed his notice of appeal on April 6, 2012. Two weeks later,
after this Court issued its docketing notice, Dale filed a motion for recusal in the
trial court, asserting that “the Judge has personal bias or prejudice concerning the
Defendant or his lawyer or personal knowledge of disputed evidentiary facts
concerning the proceeding as a result of . . . family member[] contacts and should
recuse himself.” The motion was denied after hearing. Dale’s brief to this Court
contains comments that could be read as a further suggestion of judicial bias, but
he does not directly advance that argument on appeal.1 Although Dale does not
1
For example, the brief asks rhetorically, “Why was the court so protective of Diane?,” and
speculates that, “Maybe the court already ‘assumed’ other facts not contained in the record to fashion its
decision.” If the intent of such comments is to indirectly suggest that a party was prejudiced as a result of
judicial bias and should therefore be granted relief on the merits of the appeal actually argued, that
approach is improper and beneath the dignity of the bar. Such a serious assertion, if supportable, directly
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assign as error the court’s denial of his post-judgment recusal motion, we address
the issue because it has a direct bearing on the future course of this proceeding and
calls into question the integrity of the judicial process.
[¶21] Although not styled as such, Dale’s requested findings can only be
interpreted as a request that the court recuse itself post-judgment, even though his
formal motion for recusal was not filed until after the case came to us on appeal.2
Pursuant to the Maine Code of Judicial Conduct, “a judge must recuse himself on
motion for recusal made by any party in which his impartiality might reasonably be
questioned or in which the judge has a personal bias or prejudice concerning a
party or personal knowledge of disputed evidentiary facts concerning the
proceeding.” DeCambra v. Carson, 2008 ME 127, ¶ 8, 953 A.2d 1163;
M. Code Jud. Conduct I(3)(E)(2).
[¶22] Here, however, the facts Dale requested were not developed at the
hearing and were presumably always within his knowledge or that of his attorney.
There is nothing in the record to suggest that Dale was unaware of the activities of
his former brother-in-law of twenty-seven years working in the same small
impacts a party’s right to a fair and impartial hearing and must therefore be made clearly and forthrightly
so that the appellate court may fully consider it.
2
The court apparently came to the same conclusion, noting in its further findings that “[i]t is not clear
why the defendant’s attorney has included these statements in his request for findings. The statements are
not accompanied by a request for recusal, but the statements themselves suggest bias or perhaps a conflict
of interest by the judge in the case.”
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community as he, or that he was unaware of his daughter’s close friends when she
was still in school. In these circumstances, where Dale moved for recusal only
after the court issued a judgment unfavorable to him, his failure to make a timely
motion
constitutes an implicit waiver of the objection to the judge’s
qualification. Once judgment is entered, a party has waived his right
to disqualify the trial judge and if he has waived that issue, he cannot
be heard to complain following an unfavorable result.
The rationale for this rule is obvious: A party should have no
incentive to ‘roll the dice’ for a favorable decision and then, if the
decision is unfavorable, raise grounds for recusal of which [he] or
[his] counsel had actual knowledge prior to the decision being made.
In re Kaitlyn P., 2011 ME 19, ¶¶ 8-9, 12 A.3d 50 (citation and quotation marks
omitted). Accordingly, we review the judge’s decision not to recuse in this case
only for obvious error. Id. ¶ 9.
[¶23] We find no error, obvious or otherwise, in the court’s treatment of
Dale’s indirect request for recusal. Once Dale’s concerns were made known to it,
the court fully and “promptly disclose[d] to the parties . . . any fact known to the
judge that [was] relevant to the question of impartiality.” State v. Atwood,
2010 ME 12, ¶ 22, 988 A.2d 981 (citing M. Code Jud. Conduct I(3)(E)(3))
(quotation marks omitted). It then carefully considered whether there was any
ground for recusal, applying the appropriate standards established by the Maine
Code of Judicial Conduct and this Court. Once the court concluded that there was
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no reasonable basis for recusal, it would have been an abuse of its discretion to do
so.3 See In re Michael M., 2000 ME 204, ¶ 15, 761 A.2d 865 (“Although the
granting or denying of a motion to recuse is within the discretion of the court, a
judge who disqualifies himself or herself, after trial and judgment, for no reason
other than an unfounded and meritless claim of partiality, has abused the judge’s
discretion.”); see also State v. Murphy, 2010 ME 140, ¶ 18, 10 A.3d 697; Atwood,
2010 ME 12, ¶ 22, 988 A.2d 981.
[¶24] In sum, we fully agree with and adopt the trial court’s eloquent
explanation of its common-sense and entirely proper approach to how an issue of
potential judicial bias should be addressed, when it said:
It is an unavoidable fact of litigation in small Maine
communities that a judge, or members of his or her family, may know
of a party, or a witness, or someone related to a party or a witness, or
may even have done business with somebody whose name may come
up in a case. If any such affiliation should cause any concern
3
Other courts have recognized that a judge’s casual acquaintances or social relationships do not result
in automatic disqualification, particularly when the judge sits in a small community, as many Maine
judges do. See, e.g., Medley v. State, 600 So. 2d 957, 961 (Miss. 1992) (“We note that in many areas,
particularly rural areas, where judges have known practically all the people for many years, if such were a
disqualification, the judge could never preside on most cases.”); Jacobson v. Manfredi, 679 P.2d 251, 254
(Nev. 1984) (“[A] judge, especially a judge in a small town, need not disqualify himself merely because
he knows one of the parties.”); Phillips v. State, 271 P.3d 457, 469-70 (Alaska Ct. App. 2012) (stating
that potential disqualification based on personal relationships turns on “the precise nature of the judge’s
relationship with that person, and the way in which that person is connected to the litigation”; also
quoting with approval the observation that “judges are not expected to withdraw from society” (alteration
removed) (quotation marks omitted), and citing Alaska cases standing for the proposition that, especially
in small communities, a judge who is familiar with a person involved in a case need not necessarily
recuse); see also Tatham v. Rogers, 283 P.3d 583, 603 (Wash. Ct. App. 2012) (Korsmo, C.J., dissenting)
(“Unless a judge in a small community was a hermit or a newcomer to the region (neither of which is a
good foundation for the position) before assuming the bench, the judge will necessarily have had
relationships—business or personal—with most of the attorneys in the community. That is not necessarily
a bad thing.”).
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whatsoever on the part of a litigant or their attorney, the matter should
be immediately brought to the attention of the court to be addressed
without delay. The court, similarly, will endeavor to fully disclose
relevant relationships if the court has the impression that the
relationship might reasonably cause the judge’s impartiality to be
questioned. . . .
We all—the judge, the clerks, security personnel, court staff, as
well as attorneys and their staff—have a responsibility to promote and
preserve the integrity of our legal system by avoiding impropriety and
appearances of impropriety. The need for openness is particularly
acute in rural communities where judges, prior to their service on the
bench, may have been active community members with widespread
contacts in the community. The responsibility we share includes
bringing matters such as the concerns expressed by the defendant’s
attorney . . . to everyone’s attention in a timely manner, to provide the
best opportunity for the litigant’s confidence in our legal process to be
preserved and enhanced. When such matters are only raised at the
end of the litigation, we run the risk that the litigants’ confidence in
our legal system will be undermined.
The entry is:
Judgment affirmed.
On the briefs:
Theodore M. Smith, Esq., Smith Law Office, LLC, Van Buren, for appellant
Dale Charette
Luke M. Rossignol, Esq., Bemis & Rossignol, LLC, Presque Isle, for
appellee Diane Charette
Fort Kent District Court docket number FM-2006-113
FOR CLERK REFERENCE ONLY