MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 48 Docket: Kno

- 18

- 240 Argued : December	11,	2018 Decided: April	4,	2019
Panel: SAUFLEY,	C.J.,	and	ALEXANDER , MEAD, GORMAN ,	JABAR , HJELM, and HUMPHREY, JJ.

EDWARD	J.	HARSHMAN

v.
SHEILA	C.	HARSHMAN

SAUFLEY , C. J. [¶1] Edward J. Harshman	appeals from post

- judgment orders entered	in
the	 District	 Court (Rockland) finding	 him	 in	 contempt.	 	 Harshman,	 the beneficiary	of	a	substantial	trust, had	been ordered	to	maintain	$500,000	in	life
insurance	to	benefit	his	ex

- wife	and	their	children , to	whom	he	was	required	to pay	 significant spousal	 and	 child support.	 	Not	 only	 d id	 he	 fail	 to	 obtain	 the $500,000 policy ,	he	allowed	a	$300,000	policy	to	lapse,	claiming	that	when	the court	told	him	it	was	not	enough,	he	was	no	longer	required	to	maintain	that policy;	 a	 claim	 that	 defies	 logic.	 	 We	 affirm	 the	 judgment	 of	 contempt .	 	 We
remand to the	District	Court for enforcement	of	the	contempt	order , and for the sanction	of	imprisonment imposed	therein	to	be	served	immediately.2 [¶ 2 ] The	District	Court	entered	two	orders	of	contempt	and repeatedly provided Harshman with	 more	 time	 to	 comply.	 	 Those	 orders, dated
December 7,	2017 ( Mathews,	J. ) , and	May	15,	2018 ( Raimondi,	J. ) , found him	in contempt	of	the	parties ’ divorce	judgment	after	he	failed	to	obtain	a	$500,000 life	insurance	policy that	would	name his	former	wi fe,	Sheila	Harshman,	as	the owner	and	beneficiary,	and	acted	in	bad	faith	in	allowing	his	existing	$300,000

term life	 insurance	 policy, which he	 owned	 but that listed	 Sheila	 as	 the beneficiary,	 to	 lapse

. See M.R.	 Civ.	 P.	 66(d). Edward	 challenges	 the	 court’s findings	of	facts	that he had	the	ability	to	comply	with	the	divorce	judgment	and that	his	cancellation	of	his	existing	policy	was	in	bad	faith. [¶ 3 ] Edward	 and	 Sheila	 were	 married in 2000	 and	 divorced in September 2016	thr ough	a	judgment ( Sparaco,	J. )	ordering , in	pertinent	part,
as	follows: [Edward]	 shall	 furnish	 a	life	insurance	 policy	 naming	 [Sheila]	 as beneficiary,	 and	 owned	 by	 [Sheila],	 in an amount	 no	 less	 than $500,000.

.	.	. [T] he	Court	find s it	prudent	to	have	[ Sheila]	be	the	owner of	this	life	insurance	policy,	but	require	[Edward]	to	pay	any	and	all premiums	 associated	 therewith	 and	 to	 cooperate	 to	 the	 extent necessary	to	obtain	physicals	or	other	requirements. 1

1 Edward	appealed	the	court’s	judgment	arguing	that at	trial the	court	impermissibly	excluded evidence pertaining	to	his	family	trust	financial	documents and	miscalculated the	parties ’ respective3 [¶ 4 ] Almost	a	year	after	Harshman	was	ordered	to	obtain	the $500,000
life	 insurance policy ,	 i n	 August	 2017, Sheila	 filed	 a	 motion	 for	 contempt asserting that	 Edward had failed	 to	 obtain the policy. See M.R.
Civ. P. 66(d)(2)(A). Edward did	not	assert	a	 financi al	inability	 to	pay	 for	 the ordered	policy,	but	alleged	that	although he had	obtained a	life	insurance	policy of	$300,000 , “considering	his	age	and	health”	he	was	uninsurable	for	a policy
above	that	amount. He	provided no evidence that	he	made any	actual	efforts to obtain	a	policy	or	that	any	insurers	declined	any	actual	applications	for	policies

. T he	 court	 ( Mathews,	 J. ) held	 a	 contempt	 hearing and	 found that , although Edward	had	the	ability	to	comply	with	the	divorce	judgment , he	“refused	to do
so.” The	court	also	 found	 that	Edward’s	existing	policy	 of	 $300,000	was	not compliant	with	the	divorce	judgment	because it	was	$200,000	less	the	amount required	by	the	divorce	judgment and	it	was	no t owned	by	Sheila. Accordingly,
the	court adjudged	th at	Edward	was	in	contempt	of	the	divorce	judgment .		M.R. Civ.	 P.	 66(d)(2)(D).	 	 The	 court	 imposed	 a	 sanction	 of	 a thirty

- day	 term	 of imprisonment ,	but	the	court stayed the sanction indefinitely to	allow	Edward

incomes	for	child	support	and	spousal	support	purposes. See Harshman	v.	Harshman ,	2017	ME	60, ¶ ¶ 1, 15

- 18, 158	A.3d	506 .		We	affirmed	the	court’s	judgment. Id. ¶	1.4 the	 opportunity	 to	 comply	 with	 the	 divorce	 judg ment. See M.R.
Civ. P. 66(d)( 3 )( A ) (Remedial	Sanctions;	Coercive	Imprisonment). [¶ 5 ]		In	March	2018 ,	Sheila	filed	a	motion	for the	court	to	hold a	hearing
where Edward would	be	 required to	 show	cause for	not	complying with	 the divorce	judgment.		She	included	an	affidavit	averring	that	he had	“affirmatively
cancel [led] the	 existing	 (but	 insufficient)	 life	 insurance	 policy”	 of	 $300,000.
T he	court	( Raimondi,	J. )	held the	show	cause hearing that	Sheila	had	requested
and	fo un d that	Edward had inquired	into	only	whether	“ he	could	get	a whole life insurance	 policy	 and	 only	 for	 the	 full	 amount	 of	 $500,000

. ” ( E mphasis
added

. ) As	 it	 pertains	 to	 his	 $300,000 term plan,	 Edward	 “ never	 inquired whether	ownership	of	the	$300,000 [ term	life ] policy	could	be	transferred	to [Sheila]. ” Nor	did	he	make	“ inquiries	as	to	whether	he	could	get	an	additional policy	for	$200,000	or	perhaps	two	$100,000	policies	so	that	he	could	comply
with	the	order. ” Ultimately,	the	court	found,	“ the	delib erate	end	result	of	his
actions w as to	leave	[Sheila]	with	no	insurance	coverage	at	all. ” [¶ 6 ] Once	 again,	 however,	 t he	 court	 stayed	 the	 imposition	 of	 the
contempt sentence

. T he	court	allowed Edward thirty	days to comply	with the
divorce judgment , potentially	 by reinstating	 the	 $300,000	 policy,	 with	 or without	Sheila	as	the	owner,	and	obtaining	other,	smaller	policies	that would5 provide	 a total of $500,000	in	coverage. The	court	 also	 required	Edward	 to investigate	 any	 other	 avenue	 to	 secure	 his	 spo usal	 support obligation , “including	 family	 trust	 funds,” “in	 the	 event	 that	 it	 proves	 difficult	 to	 obtain
insurance.” The	court	set	the	matter	“for	review	on	June	12,	2018,

.	.	. at	which time	 [Edward]	 must	 have	 obtained	 insurance	 coverage	 as	 ordered	 or	 h ave persuasive	proof	of	his	good	faith	efforts	to	do	so	or	the	sentence	of	the	court will	be	imposed	at	that	time.” [¶ 7 ] At	the June review hearing ,	the	court found	that	Edward	ha d “ failed to	comply	with	[the	May 15, 2018,]	order

. ” The	court imposed	a sanction	and
ordered Edward	 to serve a	 term	 of	 thirty	 days	 in the Knox	 County	 Jail and denied	 Edward’s	 motion	 to	 stay	 the	 imposition	 of	 the sanction

. S ee M.R.
Civ. P. 62(a) ,	121. Nonetheless,	it	is	apparent	that	Edward	has	not	served	the
sentence, 2 and	he now	appeals	to	us , arguing	that	the	court	erred	in	its	factual

2 Following	 Edward’s	 motion	 to	 stay	 the	 imposition	 of	 the sancti on ,	 the	 court	 appropriately denied	the	stay	and	responded	as	follows: No,	I’m	not	going	to	stay	it.	You	can	appeal	it.		If	you	want	to	file	a	notice	of	appeal, you	can	do	 that.	 .	 .	 .	And I	 think	then	 the	 appeal	will	 stay ,	but	at	 this	point	in	 time, [Edwar d]	has	had	continuances	and	extensions	and	excuses,	and	I’m	not	giving	any more	extensions	so	I’m	not	giving	any	more	stays.	.	.	.	He	wants	to	appeal	it,	it’ll	be automatically	stayed

. ( E mphases	added

. )		To	the	extent	that	there	was	any	confusion	about	whether	Edward’s	sentence was	stayed	pending	an	appeal,	when	neither	the	trial	court	nor	the	appellate	court	explicitly	granted a	stay,	it	was	not. See M.R.	Civ.	P.	62(a),	121 ;	M.R.	App.	P.	10(a)(4)

. Ma ine	Rule	of	Civil	Procedure 62(a)	“excepts	certain	trial	court	orders,	specifically	including	those	involving	spousal	support,	from the	usual	appellate	stay.		In	its	discretion,	a	trial	court	could	choose	to	stay	any	order,	including	its6 finding	of	his	ability	to	comply	with	the life	insurance provision of	the divorce judgment and	that ,	because	the	court	earlier	found	his	term	policy	inadequate to	satisfy	the	divorce	ju dgment,	the	court	erred	in	determining	that he	acted	in bad	faith	in	cancelling the	policy

. See M.R.	App.	P.	2B(c)(1). 3 [¶ 8 ] We	 review the	 court’s	 factual	 findings	 that	 support	 a	 decision “regarding	civil	contempt	for	clear	error.” Lewin	v.	Skehan , 2012	ME	31,	¶	18,
39	 A.3d	 58

. Absent	 clear	 error	 in	 the	 court’s underlying factual	 findings of
contempt ,	we	review	the	court’s	judgment	for	an	abuse	of	discretion. I d. ; Ames
v.	Ames ,	2003	ME	60,	¶	22,	822	A.2d	1201.

entire	judgment,	p ending	appeal,	pursuant	to	subsections	(a)	and	(d).		But	if	it	has	not	stayed	the portions	of	its	judgment	subject	to	M.R.	Civ.	P.	62(a),	those	provisions	take	effect	and	remain	in	effect throughout	the	appeal	period.” Laqualia	v.	Laqualia ,	2011	ME	114,	¶ ¶	27,	29,	30	A.3d	838 (citations omitted)	(holding	that	when	a	divorce	order	requires	a	spouse	to	furnish	health	insurance	to	their former	spouse,	it	is	considered	spousal	support); see	also M.R.	Civ.	P.	121. An	order	finding a	party in contempt	of	an	ord er	imposing	spousal	or	child	support	is	“an	order	relating	to	the	care,	custody, and	support	of	minor	children	or	to	the	separate	support	.	.	.	of	a	person	.	.	.	.”		M.R.	Civ.	P.	62(a). Here, the	court	specifically	denied	Edward’s	motion	to	stay. It	was Edward	and	his	counsel’s	responsibility to	ensure	Edward’s	compliance	with	the	Rules	of	Civil	Procedure	and	the	court’s	order.

3 Sheila	argues	that	the	contempt	order	dated	December	7,	2017,	became	final	on	December	28, 2017,	pursuant	to	M.R.	App.	P.	2 B(c)(1)	and	therefore	Edward’s	June	12,	2018,	appeal	was	not	timely filed. See M.R.	App.	P.	2B(c)(1)	( requiring	that	a	notice	of	appeal	be	filed	within	“21	days	after	entry into	the	docket	of	the	judgment”). To	the	contrary,	however, the	original contemp t	order	stayed	the imposition	of	the	sanction	indefinitely,	creating	“the	possibility	that	the	need	for	review	may	[have been]	.	.	.	mooted	by	future	developments	in	the	trial	court,”	and	therefore	the	order was	not	a	final judgment. Murdock	v.	Thorne , 2016	ME	41,	¶	6,	135	A.3d	96 (alterations	omitted) (quotation	marks omitted) (dismissing	the	party’s appeal	because	“a	central	dispute	of	fact	.	.	.	remain[ed]	unresolved in	the	trial	court	.	.	.	[and]	the	entire	case	would	go	away	if	he	failed	to	prove	[c ertain	facts]” (quotation marks	omitted) ).7 [¶ 9 ] As	w e	have	previously	stated : For	 a	 court	 to	 find	 contempt,	 the	 alleged	 contemnor	 must	 be presently	 able	 to	 comply	 with	 the	 court ’ s	 order. When	 it	 is impossible	for	a	party	to	comply,	the	party	is	not	in	contempt. It	is presumed	 that	an alleged	contemnor	is	 presently	able	 to	comply when	the	order	itself	implies	that	he	was	able	to	comply	at	the	time the	order	was	issued;	 therefore,	 the	moving	party makes a	prima facie	case	of	contempt	when	the	moving	party	establishes	that	the alleged	con temnor	has	not	complied	with	a	valid	court	order. Once the	failure	to	comply	has	been	established,	the	alleged	contemnor has	the	burden	of	production,	of	going	forward with	evidence	of	his inability	to	comply. The	burden	of	persuasion,	however,	remains w ith	the moving	party.
Ames ,	 2003	 ME	 60,	 ¶	 22,	 822	 A.2d	 1201	 (quotation	 marks	 omitted) (alternations	omitted) (citing Wre n n	v. Lewis ,	2003	ME	29,	¶	26,	818	A.2d	1005;
Zink v.	 Zink ,	 687	 A.2d	 229,	 232

- 33 (Me.	 1996 ) )

. “For	 a	 person	 to	 be	 held	in contempt	for violating	a	court	order,	that	court	order	must	inform	the	person in	definite	terms	what	duties	the	order	imposes	upon	him. ” Lewin ,	2012	ME	31, ¶ 1 9,	39	A.3d	58

. [¶ 1 0 ] Here, Edward’s	financial	capacity	to	comply	with	the	court’s	orders
has	never	been in	question.		Nor	does	Edward	claim	to	be	impecunious. 4 At the

4 In	the	pa rties’	divorce order,	the	court	found , in	pertinent	part , as	follows: [Edward],	 generally,	was	 not	 credible	 on	 financial	issues,	including	 his	 earning potential.		More	likely	than	not, [ Edward ] has	not	attempted	to	maximize	his	earnings as	a	doctor	because	he	has	not	needed	to	given	the	substantial	income	that	he	receives from	family	trusts.8 contempt	hearing	and through her motion	and	affidavit filed before the	show cause	hearing was	held ,	Sheila provided	evidence that	Edward	did	not	obtain the	requisite	policy,	thereby	making	a	p rima	facie	case	of	contempt. It	was	then Edward’s	 burden	 to	 produce	 evidence	 of	 his	 inability	 to	 comply	 with	 the judgment. [¶ 1 1 ] At	the	contempt	hearing,	Edward testified	that	he	had	not	filled	out a	single	application	for	life	insurance	in	the	fourteen	months	since	the	divorce

Specifically,	[Edward]	has	access	to,	and	has	historically	had	access	to,	substantial tax

- free	trust	di stributions	from	non

- marital	revocable	and	irrevocable	family	trust funds.		For	example,	in	2014	and	2[01]5,	[Edward]	received	well	in	excess	of	$100,000 from	the	trusts.

.	.	.	. The	evidence	sho w s	that	even	though [Edward] does	not	have	an	absolute	ri ght	to demand	a	distribution,	he	has	always	received	distributions	when	requested	and	has relied	upon	these	funds	throughout	the	marriage.

.	.	.	. Moreover,	the	evidence	suggests	that [Edward] has	been	deliberately	attempting to	keep	his	income	low	and his	expenses	high	during	the	pendency	of	the	divorce. The [c] ourt	 finds	 that [Edward] engaged	 in	 a	 concerted	 effort	 to	 manipulate	 and/or mislead [Sheila] as	 to	 the	 resources	 and	 income	 available	 to	 him. For	 example, correspondence	between [Edward] and	h is	sister,	the	trustee	for	many	of	his	family trusts,	demonstrated	that [Edward] and	his	sister	deliberately,	and	artificially,	during the	 divorce	 action, “ adjusted ” [Edward] ’ s	 income	 stream	 in	 an	 effort	 to	 reduce [ Edward ]’s exposure	to “ claims of	alimony ” from [ Sheila ]

. In	such	correspondence, [Edward] expressly	states	that	he	will	have	the	ability	to “ pay	Sheila	more	than	he	is legally	required, ” and	engages	in	a	dialogue	with	his	sister	about	not	paying	his	credit card	debts	until	after	the	divorce	in	o rder	to	avoid	an	appearance	of	sizeable in come.

.	.	.	.

.	.	. To	that	end,	the [c] ourt	finds	that [Edward] was	voluntarily	under

- employed throughout	the	parties ’ marriage	and	remains voluntarily	underemployed.9 judgment.	 	 Edward’s	 only	 evidence	 at	 trial	 that	 he	 was	 uninsurable	 was	 his testimony	that	he	spoke	with	an	insurance	agent	who	told	him	th at	he	would
not	 be	 able	 to	 be	 insured	 due	 to	 his	 numerous	 health	 disorders

. Edward
claimed	 that	 he could	 not	 remember	 the	 agent’s	 last	 name , and	 he	 did	 not produce	 any	 written	 denials	 from	 the	 agent’s	 company. Edward’s	 stubborn
refusal to	 comply	 with	 the order , including	 his inaction in applying	 for any policies , fully	support s the	court’s	factual	findings

. [¶1 2 ] The	divorce	judgment	did	not	require	that	Edward	obtain	a single policy	 in	 the	 amount	 of	 $500,000	 or	 that	 he acquire a whole life	 insurance

p olicy.	 	 Rather,	 as	 Edward	 acknowledged,	 he	 could	 have	 complied	 with	 the judgment by obtaining	 a term life	 insurance	 policy or	 by	 obtaining	 smaller policies	 that	 aggregated	 to	 $500,000	 in	 coverage.	 	 Edward	 nevertheless
testified	 that	 these	 distinctions	 were meaningless because,	 as	 he
self

- determined,	he	was	not	insurable	for any type	or	amount	of	life	insurance above	$25,000

. The	court acted	well	within	its	authority	in	declining	to credit
Edward’s	uncorroborated	statements	about	his uninsurability ,	and the	record falls	well	short	of	demonstrating that	the	court	erred	or	abused	its	discretion	in finding	that	Edward had the	abi lity	to	comply	with	the	divorce	judgment.10 [¶1 3 ] Edward also argues	that,	at	the	show	cause	hearing,	the	court erred
in taking into	 consideration his	 decision	 to allow the $300,000	 term	 life insurance	 policy to	 lapse because f ollowing	 the	 contempt	 hearin g , the	 court
held that	 the	 term	policy	was not	compliant	with	 the	divorce	judgment both because	 of	its	amount	and	because	he	 owned	it,	 not	Sheila. Edward	did not inquire ,	however,	into whether	he	could	transfer	ownership	of	the	policy,	nor did	he	try	to obtain additional,	smaller	policies	to add	to	the	existing	policy	to satisfy	 the	 requirement	 of	 $500,000	 in	 coverage. The	 clear	 import	 of	 the language	in	the divorce	judgment	was	to	protect	Sheila	if he were	to	die	before his	support	obligation	terminates , and ,	as Edward acknowledged, the	$300,000 policy	 would	 have,	 at	 least	 in	 part,	 financially	 protected	 Sheila

. In	 light	 of
Edward’s now - professed uninsurability, his action	 in	 cancelling the existing term	 policy	was	 unequivocally	 pertinent	 to	 the	 court’s inquiry	into	whether Edward	acted	in	good	faith	in	his	effort	to	comply	with	the divorce	judgment.
See Ireland	 v.	 Tardiff ,	 2014	 ME	 153,	 ¶	 9,	 107	 A.3d	 618 (affirming	 a	 court’s finding	of	contempt	where	the	contemnor	“failed	to	make	a	good	faith	effort	to comply	with	the	court’s	order”). [¶1 4 ] Edward has had nearly	two	years	to	comply	with	the unambiguous
terms	 of	 the divorce	 judgment

— from	 the	 day	 of	 the	 d ivorce	 judgment	 in11 September	 2016	 through	 to	 the	 day	 of	 the contempt review	 hearing	 in	 July
2018

. 5 The	mandate	in	the	divorce	judgment	is	clear.		Edward	has	substantial assets.	 	 Edward	 failed	 to	 present	 any	 persuasive	 evidence	 of	 his	 inability	 to comply w ith	 the	 insurance	 provision	 of	 the	 divorce	 judgment .	 	 Edward has ignore d his court	 ordered obligation s for	 more	 than two years. 6 Edward’s
apparent goal of deny ing his	former	wife the court

- ordered	financial	security of	the	insurance	policies	has	been	successful	for	far	too	long

. The	entry	is: Judgment	 affirmed. Remanded	 to	 the	 District Court	 for immediate enforcement	 of	 the contempt	 order , with	 the sanction	 of imprisonment to	 be	 served	 immediately. Mandate	to	issue	forthwith.

5 Edward’s	remaining	arguments	are	unava iling,	and	we	do	not	address	them	further.

6 The sanction imposed, which	was for	the	limited	period	of	thirty	days but which	could	well	have been	an	open

- ended	sentence,	should	be	imposed	without	delay. A	continuing	failure	to	comply	with a	court	order ,	when	 the	contemnor	has	 the	capacity	 to	comply	can	be	punished	by	incarceration without an end	 date, so	 long	 as	 the	 contemnor	 is	 given the	 keys	 to	 his	 own	 freedom with	 the opportunity	 to	 purge	 himself	 of	 contempt	 while	 incarcerated. M.R.	 Civ.	 P.	 66(d)(2) (D),	 (3)(A) (“Coercive Imprisonment.		A	person	adjudged	to	be	in	contempt	may	be	committed	to	the	county	jail until	 such	 person	 performs	 the	 affirmative	 act	 required	 by	 the	 court’s	 order.”); Slauenwhite	 v. Slauenwhite ,	679	A.2d	93,	94	(Me.	1996) (holding	that	where	a	contemnor	is	given	the	keys	to	his own	freedom	with	the	opportunity	to	purge	himself	of	contempt,	coercive	imprisonment	could	be	for an	indefinite	period	of	time) ; see	also Desjardins	v.	Desjardins ,	2005	ME	77,	¶	8	n.1,	876	A.2d	26

.12 Andrews	 B ruce Campbell,	 Esq. ( orally) , Andre ws	 Bruce	 Campbell,	 P.A. , Bowdoinham,	for	appellant	Edward	J.	Ha r shman Sarah	 Irving	 Gilbert,	 Esq. (orally) ,	 Camden	 Law	 LLP,	 Camden,	 for	 appellee Sheila	C.	Harshman

Rock land	District	Court	docket	number	FM

- 201 5

- 113 F OR C LERK R EFERENCE O NLY