Barbara A. (Macomber) Hero v. Joseph O. Macomber , 130 A.3d 398 ( 2016 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 4
Docket: Han-15-215
Submitted
On Briefs: December 17, 2015
Decided: January 12, 2016
Panel: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, and HJELM, JJ.
BARBARA A. (MACOMBER) HERO
v.
JOSEPH O. MACOMBER
MEAD, J.
[¶1] Joseph O. Macomber appeals from a judgment entered by the
District Court (Ellsworth, Mallonee, J.) granting Barbara A. (Macomber) Hero’s
motion to enforce a provision of the parties’ divorce judgment requiring the sale of
certain real property in a commercially reasonable manner. On appeal, Joseph
contends that (1) the court abused its discretion in denying his motion to continue;
(2) the court erred in failing to grant or make findings on a motion for an expedited
hearing; and (3) the court’s finding that the sale of real property was commercially
reasonable was not supported by sufficient evidence in the record. We affirm the
judgment.
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I. BACKGROUND
[¶2] Viewing the evidence in the light most favorable to the court’s
judgment, the record supports the following facts. Pearson v. Wendell,
2015 ME 136, ¶ 2, --- A.3d ---. Joseph and Barbara were married in 1995, and
Barbara filed for divorce in 2012. The court entered a divorce judgment on
October 17, 2014, that incorporated the terms of a mutual agreement between the
parties. Among the marital property subject to the divorce judgment is certain real
property on Water Street in Castine. In 2012, the Water Street property was
appraised to have a fair market value of $515,000. The terms of the divorce
judgment provided that “[a]s soon as practicable, Water Street shall be sold in a
commercially reasonable manner and the parties are ordered and required to take
all steps reasonably required to effect such a sale.” Pending the sale, the parties
shared the Water Street property as tenants in common; Joseph held a 27.5%
undivided interest and Barbara held a 72.5% undivided interest. Once the sale of
the Water Street property was consummated, each party would receive proceeds
consistent with their respective interest in the property.
[¶3] In addition to his interest in the Water Street property, Joseph was also
awarded exclusive ownership of real property situated at The Shore Road
(Shore Road) in Castine, which was encumbered by a mortgage in the amount of
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$129,000. The judgment required Joseph to use his proceeds from the sale of the
Water Street property to pay any indebtedness on the Shore Road property.
[¶4] On February 3, 2015, Barbara filed a motion to enforce the judgment
with regard to the sale of the Water Street property and a motion for an expedited
hearing on the matter. In her motion to enforce, Barbara indicated that she sought
to sell the property for $300,000 and had secured a buyer for that amount, but that
Joseph refused to consent because, he contended, the sale was commercially
unreasonable given that the property had been appraised at $515,000 three years
earlier. On March 19, 2015, the motion for an expedited hearing was granted, and
the court issued a notice of hearing for all pending motions to be held on
April 7, 2015.
[¶5] Joseph failed to attend the hearing on April 7, 2015, because notice was
sent to an incorrect address. Two days later, the court issued a notice of hearing to
the correct address indicating that the hearing on the motion to enforce would be
held on April 15, 2015. On the day before the hearing, Joseph filed a motion to
continue citing the death of his father and his need to obtain a lawyer. In response
to his motion, Barbara’s counsel posited that “[f]ailure to sell to this buyer now is
not going to guarant[ee] a higher price in the future. And in fact, what is likely to
occur is we have a very real potential of the town of Castine for[e]closing its
municipal real estate mortgage.”
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[¶6] On April 15, 2015, the court denied the motion to continue based on
the time-sensitive situation and Joseph’s adequate opportunity to secure an
attorney. The court proceeded to hold the hearing that day after offering Joseph a
brief opportunity to prepare; it received six exhibits and heard testimony from two
witnesses—the prospective buyer and Barbara. Joseph did not object, offer any
evidence, or conduct any cross-examination during the hearing. At the conclusion
of the hearing, the court granted Barbara’s motion to enforce. Joseph appealed.
II. DISCUSSION
A. Motion for Continuance
[¶7] “In reviewing a trial court’s decision to deny a motion for a
continuance, we look first at the reasons contemporaneously presented in support
of the request for the continuance because the party seeking a continuance has the
burden of establishing a substantial reason why granting the continuance would
further justice.” Daud v. Abdullahi, 2015 ME 48, ¶ 5, 115 A.3d 77 (citations
omitted) (quotation marks omitted). “We review a court’s denial of a motion to
continue for an abuse of discretion examining whether the denial had any adverse
prejudicial effect on the movant’s substantial rights and viewing each case largely
upon its own facts and circumstances.” State v. Dube, 2014 ME 43,
¶ 13, 87 A.3d 1219 (citations omitted) (quotation marks omitted).
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[¶8] Joseph contends that the court abused its discretion in denying his
motion to continue because he presented substantial grounds for the motion,
including the death of his father and his need to obtain a lawyer. Although he
referred to it in his written motion, Joseph did not mention the death of his father at
the hearing; rather, he argued only that he did not have adequate time to find a
lawyer.
[¶9] Contrary to Joseph’s contention, the court did not exceed the bounds of
its discretion in denying Joseph’s motion to continue. The court appropriately
considered the time-sensitive nature of the motion such that the property was
subject to a possible foreclosure and a sale was ready to be consummated but for
Joseph’s delay. In addition, Joseph had sufficient time to secure an attorney. In
the two months that followed the filing of the motion to enforce, Joseph utilized, at
least to a limited extent, the services of an attorney to address issues relating to the
sale of the Water Street property. Six days’ notice of the hearing date, in this
context, is sufficient time to secure an attorney. See Daud, 2015 ME 48, ¶¶ 6-8,
115 A.3d 77 (holding that eight days’ notice before a hearing on a protection order
was sufficient time to secure counsel).
B. Motion for Expedited Hearing
[¶10] Joseph argues that the court erred in failing “to make any ruling
whatsoever” on the motion for an expedited hearing. Contrary to Joseph’s
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assertion, the court indeed granted the motion for an expedited hearing as
evidenced by the docket entry granting the motion and the notice of hearing issued
on the same day. In addition, Joseph contends that the court erred in failing to
make findings on the motion for an expedited hearing because Maine Rule of Civil
Procedure 107(b) states that “[n]o ruling granting substantive relief shall be made
without notice and opportunity to be heard.” In granting the motion, however, the
court did not grant substantive relief; rather, it simply set the date of a future
hearing for which Joseph was timely notified and afforded an opportunity to be
heard.
C. Sufficiency of the Evidence
[¶11] Joseph alleges that (1) the trial court did not have sufficient evidence
before it to find that the property would be sold in a commercially reasonable
manner; and (2) allowing the sale for $300,000 constituted a “de facto modification
of the original property distribution” because, in reaching their agreement, the
parties contemplated a sale price of $515,000. Because Joseph presented no
evidence and never objected to any testimony or exhibit, the entirety of the
evidence in the record is uncontroverted. Both Barbara and the prospective buyer
presented evidence showing that the fair market value of the property was around
$300,000. To that end, Barbara was competent to testify as to the value of her
property as informed by brokers’ opinions. See Peters v. Peters, 1997 ME 134,
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¶ 14, 697 A.2d 1254. Thus, because the record supports the court’s finding that the
property was to be sold for its fair market value, Joseph has not demonstrated that
any insufficiency in the sale process worked to his economic disadvantage.
[¶12] Joseph’s modification argument is also unpersuasive. Joseph
contends that the terms of the divorce judgment “allow him to live without a
mortgage” on the Shore Road property following the sale of the Water Street
property. The terms of the agreement, however, do not provide a minimum sale
price or any guarantee that the sale proceeds would satisfy the mortgage in its
entirety. Although this may have been the ultimate goal contemplated by Joseph in
agreeing to the divorce settlement, the plain terms of the divorce judgment show
that the sale is guided by commercial reasonableness only.
The entry is:
Judgment affirmed.
On the briefs:
Ronald P. Lebel, Esq., and Sarah C. Mitchell, Esq., Skelton
Taintor & Abboott, Auburn, for appellant Joseph O. Macomber
Elizabeth A. Boepple, Esq., Lambert Coffin, Portland, for
appellee Barbara A. (Macomber) Hero
Ellsworth District Court docket number FM-2012-195
FOR CLERK REFERENCE ONLY