MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 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	 did	 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	wife,	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	through	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	finds 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’ respective	
3

[¶4]	 Almost	a	year	after	Harshman	was	ordered	to	obtain	the	$500,000	

life	 insurance policy,	 in	 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	 financial	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.		

The	 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	not owned	by	Sheila. Accordingly,	

the	court adjudged	that	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	 judgment.	 	 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.		

The	court	(Raimondi,	J.)	held	the	show	cause hearing	that	Sheila	had	requested

and	found that	Edward	had	inquired	into	only	whether	“he	could	get	a	whole	

life insurance	 policy	 and	 only	 for	 the	 full	 amount	 of	 $500,000.” (Emphasis	

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	deliberate	end	result	of	his	

actions	was to	leave	[Sheila]	with	no	insurance	coverage	at	all.”		

[¶6]	 	 Once	 again,	 however,	 the	 court	 stayed	 the	 imposition	 of	 the	

contempt sentence.	 The	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 would	
5

provide	 a	total	of	$500,000	in	coverage. The	court	 also	 required	Edward	 to	

investigate	 any	 other	 avenue	 to	 secure	 his	 spousal	 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	 have	

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	had “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.	 	 See 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	 sanction,	 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,	

[Edward]	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.	

(Emphases	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).		Maine	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	its	
6

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	judgment,	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.	 Id.;	Ames	

v.	Ames,	2003	ME	60,	¶	22,	822	A.2d	1201.		

 

entire	judgment,	pending	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	order	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.	2B(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 contempt	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	[certain	facts]”(quotation	

marks	omitted)).			
7

[¶9]		As	we	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	contemnor	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	

with	the	moving	party.

Ames,	 2003	 ME	 60,	 ¶	 22,	 822	 A.2d	 1201	 (quotation	 marks	 omitted)	

(alternations	omitted) (citing	Wrenn	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,	

¶	19,	39	A.3d	58.		

[¶10]		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	parties’	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	prima	facie	case	of	contempt.	It	was	then	

Edward’s	 burden	 to	 produce	 evidence	 of	 his	 inability	 to	 comply	 with	 the	

judgment.	

[¶11]	 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	distributions	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	shows	that	even	though	[Edward]	does	not	have	an	absolute	right	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	his	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	order	to	avoid	an	appearance	of	sizeable	income.	

.	.	.	.

.	.	.	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	that	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	supports the	court’s	factual	findings.	

[¶12]		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	

policy.	 	 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	ability	to	comply	with	the	divorce	judgment.		
10

[¶13]		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	following	 the	 contempt	 hearing, 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”).		

[¶14]	 Edward	has	had	nearly	two	years	to	comply	with	the	unambiguous	

terms	 of	 the	 divorce	 judgment—from	 the	 day	 of	 the	 divorce	 judgment	 in	
11

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 with	 the	 insurance	 provision	 of	 the	 divorce	 judgment.	 	 Edward	 has

ignored his court	 ordered obligations for	 more	 than	 two years.6	 	 Edward’s	

apparent goal	of denying 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	unavailing,	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	 Bruce Campbell,	 Esq. (orally),	 Andrews	 Bruce	 Campbell,	 P.A.,	

Bowdoinham,	for	appellant	Edward	J.	Harshman

Sarah	 Irving	 Gilbert,	 Esq. (orally),	 Camden	 Law	 LLP,	 Camden,	 for	 appellee	

Sheila	C.	Harshman

Rockland	District	Court	docket	number	FM-2015-113

FOR	CLERK	REFERENCE ONLY