*1 Depot readily to Home to make it more repossession.
accessible Based this
finding, the court could have inferred that place
the events that took over the next days, drive-by
three including after taken,
car was were related to one another performed intent with the same case, Although
harass. this close
the outcome reached the trial court is
supported by the reasonable inferences
that can be drawn from the circumstantial
evidence. entry is:
Judgment affirmed. J.,
DANA, dissenting. I respectfully dissent.
[¶ 16] The law peaceful authorizes the
repossession of an automobile when the
debtor is behind his payments. 11017(1) (2006); §
M.R.S. James J. SummeRS, S. Robert
White Uotform Com- & (5th 34-8 at 384-86 ed. mercial Code
2002). In accomplish order to a peaceful
repossession, it usually necessary to lo-
cate the vehicle when the debtor is not
behind Although the wheel. a fact-finder
might conclude that the creditor here spouse
caused the of the to be debtor fearful, view, in my
intimidated and such a
fact-finder could not conclude that
was the creditor’s intent.
Christina C. CAROLAN
David A. BELL.
Supreme Judicial Court of Maine.
Submitted on Briefs: Jan.
Decided: March *2 Fa- Ferguson, Fales &
Jennifer Nichols les, P.A., Lewiston, plaintiff. Sharon, Leary De- & Leary, Justin W. Auburn, Troy, for defendant. CLIFFORD, DANA, Panel: ALEXANDER, CALKINS, LEVY, and SILVER, JJ. DANA, CLIFFORD,
Majority: SILVER, ALEXANDER, CALKINS, and JJ. LEVY,
Dissent: J.
ALEXANDER, J. appeals Cardan
[¶ 1] Christina C. in District Court judgment entered J.), (Lewiston, LáVerdiere, determining support obligations child between her David A. Bell. She asserts her, by imputing purposes erred (1) the calculating annual income: the rent her difference between charge they charged and the rent (2) tenant; equal an amount insurance; employer’s cost of health (3) pay eight income for hours if she had a earning Cardan could be Because the court forty-hour work week.1 2001(5) (2006), party, defined at 19-A M.R.S. annual income of each 1. The on income, employer’s office is closed imputing, erred in its estimate Carolan’s approxi- additional value of Fridays; economic Caro- therefore she works wages might lan’s rent and the earn thirty-five mately thirty-three hours, additional available she worked week, Monday through Thursday. She regular job, at her we vacate and remand. Friday, then takes her son school *3 trip, typically volun- twenty-eight-mile
I. CASE HISTORY day. that teers at the school Carolan and Bell are the [¶ 2] employer testified that her Carolan [¶ 5] son, years now seven old. Carolan has costs, insurance but be- covers her health no other children. Bell has a thirteen- premiums the health insurance have cause year-old daughter from a rela- risen, pay has not received a raise In tionship. parental Carolan fried a of how much years. two She was unaware rights seeking support action child for maintain her employer actually pays her to issuing preliminary their son. After health insurance. order, support child court the bifurcated single-family rents a small [¶ 6] Carolan parental rights support the issue and the by parents. home that is owned her She separate issue for consideration. pays month in rent and for pays per $1000 J.) (Cote, The court entered its [¶ 3] all of the utilities. Her oil for the bill order the nonfinancial parental rights on 2005-2006 season was over Caro- $1000. issues on December 2005. The court hopes eventually purchase lan to this home parental rights ordered shared and re- parents. parents previously Her her essence, sponsibilities. In gave the order per month. rented the home $1300 custody of the child to Bell from 6:00 P.M. Testimony indicated that Bell fives [¶ 7] Sunday on until the end of on school employ- in a home owned his rent-free Thursday. pick up Carolan would the er, Farms, family’s corpo- Bell which is his Thursday child at school on him keep that until ration. A real estate broker testified Sunday parties at 6:00 P.M. The do dispute parental rights property not this shared ar- fair value of the the month, rangement.2 per although to Bell $1000 corpora- it is much less. The claimed that (LaVerdi- April In court [¶ 4] tion vehicles that Bell uses owns several J.) ere, hearing held a support the child personal purposes. corporation issue. The revealed follow- including pays expenses, also most of his ing appeal. facts to this relevant Carolan utility and insurance. Bell’s em- his bills high diploma has a school and a technical health ployer pays also for his children’s degree school in a work dental labora- presented Bell exhibits indicat- insurance. tory. In past she has worked for pay that Bell’s would $214.85 dental laboratories and has various worked insurance per single person month for a industry. in the service At the time of parent month for a plan per working hearing, $386.73 Carolan was dental child(ren)’s plan. earning per assistant and hour.3 and $13.50 earnings Cardan's W-2 reflected the essential determination from which child In $24,000. support obligations party are calcu- just for each decrease in over Due (2006) pursuant lated to 19-A M.R.S. 2006 kindergarten, her son started hours when Support and the Child Table. See 19-A earnings W-2 in 2005 reflected (2006). §M.R.S. 2011 $22,541. about (LaVerdiere,J.) 2. The court amended this or- 2,May der on Using the calculations on the child closing arguments, In [¶ 10] lieu of
[¶ 8] worksheet, court instructed counsel to submit memo- the court ordered that support proposed randa and worksheets week for child pay Bell Carolan $28.46 positions. argued of their Carolan that court also ordered Bell to support. The income should be her income insurance for their son. maintain health reported that is on her W-2 and did not file a appeal This followed. Bell impute any additional in- court should cross-appeal. argued
come to her. Bell that the II. LEGAL ANALYSIS impute should additional income Caro- (1) between her lan for: the difference requires case us to consider This tenant; charged prior rent and the rent impute limits of a court’s discretion (2) the value of the health insurance that annual establish *4 (3) her;4 employer pays for Cardan’s purposes pur- calculation support for child voluntary underemployment. The court 2001(5) (2006). § suant to 19-A M.R.S. suggestions imputing in- adopted Bell’s calculating gross income for child When in findings addressing come its and order support purposes, the court consider support. child any “ongoing source.” 19-A income 2001(5)(A). § The court calculated Cardan’s The law authorizes [¶ 9] M.R.S. gross following: income based on the income in impute court to additional the circumstances, par- a such as when certain = x x 32 52 $22,464.00 Employment $13.50 voluntarily unemployed or underem- ent is wages Imputed = x x $10,00 4,160.00 52 2001(5)(D), § ployed, 19-A M.R.S. $ or when full-time_8 of in- parent, employee, Value as an receives paid the 2,578.00 health insurance $ services, in payments or lieu kind of rent Value employ- in his or her wages, the course of = x 12 3,600.00 reduction $300.00 $ 2001(5)(B). ment, § 19-A M.R.S. TOTAL_$32,802.00 support [¶ We review child 12] gross Bell’s income The court calculated Sylvester orders for abuse of discretion. following: based on the ¶ 141, 10, Vitagliano, v. 2002 ME 804 A.2d (includ- income W-2 391, However, District we review the insurance) $29,542.00 health findings factual to determine Court’s In-kind income pro- vided by employer they clearly are erroneous. whether = x rental 12 ¶ $10,800.00 House Pierre, 10, 8, $900.00 St. Williams = x 1011, Findings clearly 75.00 12 900.00 are 889 Electricity $ $ = competent if “there is no evi erroneous x 12 720.00 60.00 CeU $ phone_$ dence in the record to [them].” = X 35.00 12 420.00 Home phone $ $ ¶73, 7, Payne, 2006 ME 899 A.2d Payne Heating gallons @ = 550 oil $2.25/gallon 1,238.00 $ omitted). (quotation 795 marks Vehicle use/mainte- nance/registration @miles 10,000 of Rent Imputed A. Income Value = 4,450.00 and fuel .445/mile $ $ Reduction Insurance on home and vehicle 446.00 contents $ have held that We [¶ 13] money source” includes “ongoing from an TOTAL_$48,516.00 month, apply per which is the $214.85 should that because Carolan did not 4. Bell asserted single employer pays for amount that Bell's provide evidence of how much her insurance, employees. pays the court for her health
949 legal a obli- grants living that Carolan’s have received from educational per month gation to continue the expenses, Narofsky, Rich v. 624 A.2d see by imputing rate.6 The court erred (Me.1993); lump sum severance Walker, between 21, 15, the value of the difference Caro- pay, Walker v. previous rent the rent of 887, 890; lan’s diem stipends, 868 A.2d income calcula- Macomber, tenant 1, 7, Macomber v. ME tion. However, gross 814 A.2d 457-58.5 money
income does not include received as B. for Value Health gift, has no legal where the donor obli Insurance gation “ongoing” payment. to continue (Me. True, includes “income 15] See True v. Gross income [¶ 1992) source, including, argument from an but not (rejecting ongoing expense have included value of limited ... reimbursements or should by payments by party in-kind received monthly party’s grand checks sent calculation). or employment self-employ- mother in the the course of or operation ment business Here, the difference between or expense pay- reimbursements in-kind paid the rent and the Carolan living expenses.” personal ments reduce tenant cannot be considered 2001(5)(A)-(B); 19-A M.R.S. see also *5 income ongoing pursuant from an source Knowles, A.2d Knowles 318 2001(5)(A). § to 19-A Although M.R.S. (Me.1991). case, present In the subsection monthly may rent less than $300 (5)(B) for provided authority the court tenant’s, rent is to include the value of Bell’s rent-free hardly an insubstantial sum. There is no vehicles, housing, pay- and other use of evidence in the record that rent Carolan’s in calculating living expenses ments his payments significantly are less pre than income, his because value vailing properties rental rates for similar by Bell in these items received lieu of was in the area. Even if the record included wages employment in of his and the course a significant evidence of variance between personal living expenses. reduced his actual prevailing rent in rates Here, address, as a general we need not area, the court would be in engaging con matter, whether a court include the speculation impute siderable it were to amount an contributes to em- an income, income, or loss of based on a find ployee’s plan health insurance when calcu- particular payment that a lating gross income. less, more, significantly pre or than the “economic,” vailing, or rate that that she [¶ 16] Carolan’s should particular be assessed for a unit. receives health insurance employer-paid Further, supports there is no evidence in lieu of increase wage the record determined, 2001(5)(A) being § 5. Pursuant to 19-A M.R.S. for whom is includes, (2006), fellowships also but limit- grants, is not or subsidies education to, ed personal living that are ex- available for commissions, salaries, penses. wages, royalties, bo- dividends, nuses, pay, pensions, severance Also, the value of Carolan's rent could not funds, interest, annuities, capital trust "expense benefits, reimbursementfs] be considered an gains, security disability social in- personal benefits, payment[s]” or in-kind that reduces prizes, compen- surance workers' benefits, living expenses pursuant to 19-A M.R.S. spousal support actually re- sation 2001(5)(B) the rental rate was not because pursuant preexisting ceived to a order employment. parent received course of her spouse who is not the of the child in the ¶29, 17, court’s conclusion that the health insur- ME 818 A.2d 1010. If a payments ance are “in-kind benefits” sub- parent voluntarily is underemployed, the ject to imputation pursu- court’s decision to impute apply income or 2001(5)(B). ant to section This result parent’s earning capacity, rather than provides similar treatment for Carolan’s income, his or her current discretionary. employer-paid Bell’s health benefits. Erickson, Koszegi See Thus, the court did not err in its treat- 1168, 1171; Dep’t Human employer-paid ment of health benefits to 128, 11, Frye, Servs. v. impute income to party pursuant each 1000, 1002-03. (5)(B).
subsection record, In this there is no [¶ 17] While there was no evidence dispute job that Carolan’s is what would be of the actual amount of employ Carolan’s employment considered full-time with ben payments, er’s health insurance the court employment efits. Her as a dental assis did in finding not err the value of tant properly utilizes her education and Carolan’s health insurance benefits was experience. thirty-three She works The court arrived at this amount $2578. week, thirty-five and works vir by multiplying Bell’s employer’s monthly tually all of the hours that are available $214.85, rate single employees, employer. employer’s from her Her office Using twelve. this amount to infer the Fridays. many is closed on Like other value of employer’s payments employees today’s economy, she does was reasonable and not an abuse of discre However, forty-hour not work a full week. tion. person who works such a schedule is not thereby “underemployed” as a matter of C. Eight Additional fact purposes or law for of section Hours of Work 2001(5)(D). A parent who has a full-time *6 Support [¶ 18] Pursuant to the Child job parent’s consistent with the education Guidelines, may imputed be when a experience, but who works less than a person is found to underemployed, be sub- week, not, forty-hour subject is thereby to ject to conditions specified section or having his her income recalculated to a 2001(5)(D). Paragraph D in perti- states forty-hour per equivalent week for child part: nent “Gross income include the support purposes. calculation difference party between the amount a is employment, although [¶ Carolan’s a 21] earning party’s earning and that capacity week, forty-hour few hours than a less is party voluntarily when the becomes or re- training experi- consistent with her mains unemployed underemployed, or ence, pro- and utilizes all available hours sufficient evidence is introduced concern- by employer. finding vided her The of ing party’s earning capacity.” a current voluntary underemployment was a clear Therefore, error. the court The determination of abused its dis- party voluntarily by imputing eight whether a is cretion an additional underem ployed question is a of fact that we review hours of income to Carolan when calculat- Lewis, for clear error. v. 2003 Wrenn her income.7 Cf. contrast, 29, 17, 1005, 1010; finding parent In a that a is volun- 818 A.2d when the when, tarily underemployed appropriate parent capable working part- is is of at least time, 937, example, parent Narofsky, the chooses a career or edu- Rich v. 939 (Me. 1993); path parent, cation that does not take into account or when the who at is still young age, despite having the interests of the children a he or she is chooses to retire Lewis, required support, apparent working capacity, Wrenn no limitation on
951 168, Bros., Inc., entry The v. Walsh 810 is: (“The meaning weight A.2d Judgment vacated. Remanded for re- the of given be exhibits and the calculation of child consistent with the is for the fact-finder to de- witnesses opinion. this clearly upheld termine unless and must LEVY, J., dissenting. erroneous.”); Town Win- Sturtevant of ¶ 9, throp, 1999 ME I dissent the respectfully [¶ because 22] (“[T]he not appellate function of an findings regarding trial court’s transcript to review cold and draw its a imputed supported by compe- income were inferences”) (quotation factual marks own tent in the record not evidence and were omitted). trial court did commit clearly erroneous. treating
clear error in the reduc- $300 Imputed A.Income Value of Rent imputed tion as income.
Reduction B. of Value Health that parents [¶ Carolan testified her 23] Insurance charged the tenant of her house I agree with Court’s conclu- [¶25] month, they charge but that $1300 sion that trial court did not err in per month. When asked whether imputing employer- the value of Carolan’s “doing things she certain was for them to her as provided health insurance reduction,” get the rent she testified that payment[] it “in-kind re- because is an “doing yard she of work” was lots and was by party employ- ceived a in the course “in process painting some of the ... personal living ment [that] reduce[s] rooms.” also that Carolan testified she 2001(6)(B) expenses.” 19-A M.R.S. and her never discussed the $300 (2006). point I on this reduction, separately write as a rent and that it requirement note that no there is that own to perform choice services for the that, in the absence party prove home buy because she intended to insurance, However, asked, health would have home. when she was “Well, in an they employee compensation the rent reduced three hun- equal dred of the you, dollars for correct?” re- amount to the value benefit sponded, “They charge provided. simply me thousand dol- conclude We should where, here, lars month. Yes.” employee an receives em- *7 as a ployer-paid health insurance benefit trial [¶ The court’s decision to treat 24] personal living employment that reduces imputed the rent reduction as income was to expenses, a court has discretion not, as suggests, the Court based on mere consider of the same when deter- the value rates, speculation prevailing about mining employee’s gross that but was instead based on Carolan’s testi- 2001(5)(B). purposes of section mony that indicated that the reduc- exchange tion services. be her for Additional Hours C. opportunity had the ob- trial court to of Work credibility, her judge serve Carolan and that she Carolan testified does it reasonably and could have inferred from Fridays employer work does because testimony that she the rent received Fridays and she not have hours on chooses part agreement of a tacit to reduction Jenkins, that she can take her son to provide home services. See Inc. not work so 13-14, 1168, Erickson, 113, Koszegi 1171. Lewis, 29, 13,
and from “I want to ME school Auburn: my spend time with son. And the time judgment. 1009. should affirm the We spend that I’m allotted to with him is
Thursday evening, Friday, Saturday and job I
Sunday. get So will not another my I son.” appeared
while have She also possibility
to concede the that she could employment Fridays]
“find between [on
eight-thirty and three o’clock in Auburn.”
[¶ 27] Based review of record, trial it written concludes that FARM FIRE AND STATE CASUALTY Fridays to not Carolan’s decision work COMPANY reasonable, unjust and that it is not existing earnings use her to calculate the pay. amount of child Bell should Angela C. HALEY et al. court, appellate
As an do not we review Sturtevant, transcript[s],” “cold Supreme Judicial Court of Maine. ¶84, 9, superimpose 732 A.2d at Argued: Nov. weight our collective assessment of the given testimony to the witnesses’ March Decided: exhibits, meaning to be drawn majori- from the evidence as a whole. The
ty’s approach begs question of whether trial court committed clear error when
it determined that Carolan was underem-
ployed. Carolan’s own estab- only
lishes that she need work an addition- eight
al four week to achieve forty-hour week, work and it is reason-
ably possible Fridays, for her to do so on
albeit with an other than her employer.8
current Because there was
competent which evidence from the trial could infer Carolan could readi-
ly work additional hours without substan-
tially disrupting existing her and her son’s
schedules, the court did not commit clear
error. *8 appellate Our standard of review
requires uphold findings that we factual any competent
there is evidence
record to them. See Wrenn that, indicated in her accumulates based on hours worked and can 8. Carolan testified stub, paid ap- pay most recent days days, be used for vacation or sick but proximately thirty-six per week. She supplement which she uses to sometimes explained that some of those hours were tak- pay- off, en from her time which account of