Susan G. Colucci v. Stephen Colucci , 2020 ME 75 ( 2020 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2020 ME 75Docket: Cum-19-449
Submitted
On Briefs: May 12, 2020
Decided: May 28, 2020
Panel: MEAD, GORMAN, JABAR, HORTON, and CONNORS, JJ.
SUSAN G. COLUCCI
v.
STEPHEN COLUCCI
CONNORS, J.
[¶1] Stephen Colucci appeals from a judgment of the District Court
(Portland, Mills, J.) granting Susan G. Colucci’s complaint for divorce. Stephen
contends that the court erred in awarding the parties’ dog to Susan because the
dog is his nonmarital property.1 We vacate the judgment.
[¶2] Susan and Stephen married in May 2015. In October 2017, Susan
filed a complaint for divorce. In her financial statement filed with the court,
1 Stephen also asserts that there is an ambiguity in the provision of the judgment that requires
him to pay Susan twenty percent of the profits from his corporation. Specifically, Stephen contends
that the court did not indicate whether the corporation’s “profits” should be determined before or
after it pays Stephen his salary as a director. We see no ambiguity. In ruling on Stephen’s
post-judgment motion, the court stated that Stephen could “account for [his] reasonable salary when
determining [the] amount due to [Susan].” In light of this clarification, the judgment is sufficiently
clear for Stephen to make a payment to Susan that he believes, in good faith, satisfies the provision
of the judgment at issue. Therefore, we decline to consider Stephen’s argument further.
2
see M.R. Civ. P. 108(c), Susan listed two dogs as marital assets. She indicated,
however, that one dog, Louise, was acquired prior to the marriage, in 2010. At
trial, the parties submitted no other evidence regarding when, or by which
party, Louise was acquired.
[¶3] In August 2019, the court entered a judgment granting the divorce.
In its written decision, the court did not make any express factual findings
regarding the dogs, but it ordered that both dogs be “set aside to [Susan] as her
exclusive property.” Stephen timely filed a motion pursuant to M.R. Civ. P. 52,
requesting a finding that Louise is his nonmarital property and asserting that
the court should have set aside that dog to him. The court denied Stephen’s
motion, explaining that the record did not support his proposed finding of fact
or conclusion of law. Stephen timely appealed. See M.R. App. P. 2B(c)(1).
[¶4] Undisputed evidence establishes that Louise was acquired in
2010—five years before the marriage. Therefore, the record compelled the
court to classify that dog as nonmarital, see Miliano v. Miliano, 2012 ME 100,
¶ 16, 50 A.3d 534 (stating that property acquired prior to the marriage is
nonmarital), and the court was required to set aside Louise to its owner as that
person’s nonmarital property, see id.
3
[¶5] Because the parties did not present any evidence of who—Susan or
Stephen—acquired Louise in 2010, however, the court did not have an
adequate evidentiary basis from which it could make the findings necessary for
it to set aside that dog to the correct party. Faced with both parties’ failure of
proof on this question of fact, it would have been appropriate for the court to
reopen the record for the parties to submit additional evidence prior to
entering a final judgment. See id. ¶ 26 n.9.
[¶6] We vacate the judgment and remand for further proceedings to
determine ownership of Louise. See id. ¶¶ 16, 26; McLean v. Robertson,
2020 ME 15, ¶ 11, 225 A.3d 410 (stating that, where a party files a Rule 52
motion, the court must ensure that the judgment is supported by factual
findings that are based on record evidence). We note that, despite the lack of
record evidence on this issue, Susan and Stephen are no doubt aware of who
between them acquired Louise in 2010. Thus, we are confident that the parties
will be able to resolve what should be an undisputed question of fact without
expending further judicial resources.
The entry is:
Judgment vacated. Remanded for further
proceedings as indicated in this opinion.
4
Diane Dusini, Esq., and Whitney Lallas, Esq., MittelAsen, LLC, Portland, for
appellant Stephen Colucci
Dana E. Prescott, Esq., Prescott, Jamieson, Murphy Law Group, LLC, Saco, for
appellee Susan G. Colucci
Portland District Court docket number FM-2017-952
FOR CLERK REFERENCE ONLY