MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2022 ME	43

Docket: Wal-21-309

Argued: April	6,	2022

Decided: August	9,	2022

Panel: STANFILL,	C.J.,	and MEAD,	JABAR, HORTON,	and	CONNORS,	JJ.*

PATRICK	R.	MORAN

v.

WHITNEY	D.	MORAN

CONNORS,	J.

[¶1]	 Whitney	D.	Moran	appeals	from	a	divorce	judgment	entered	by	the	

District	Court	 (Belfast,	Walker,	J.)	 on	Patrick	R.	Moran’s	 complaint.	 	Whitney	

contends	that	the	trial	court	erred	or	abused	its	discretion	in	its	classification

of	 the	parties’	retirement	accounts and	its	denial	of	her	request	 for	attorney	

fees.1		We vacate	the	judgment	in	part	and	remand	for	further	proceedings.

*	 	 Although	 Justice	 Humphrey	 participated	 in	 the appeal,	 he	 retired	 before	 this	 opinion	 was	

certified.

1		Whitney	also argues	that	the	trial	court	erred by	assigning	a	value	of	$8,500	to	the	parties’	real	

property.		Because	the trial	court’s	 finding is	supported	by	competent evidence	in	 the	record,	we	

discern	 no	 error.	 	 See Berntsen v. Berntsen, 2017 ME 111, ¶¶ 13-14, 163 A.3d 820; Theberge v.

Theberge, 2010 ME 132, ¶¶ 17-18, 9 A.3d 809; Peters v. Peters, 1997 ME 134, ¶¶ 13-14,

697 A.2d 1254.
2

I.		BACKGROUND

[¶2]		The	record	supports	the	following	facts.		Patrick	and	Whitney	were	

married	in	August	2017,	and	they	have	one	child	who	was	born	in	January	2019.

In	 June 2019,	 Patrick	 filed	 a	 complaint	 for	 divorce.	 	Whitney	 answered	 and	

counterclaimed.

[¶3]		Two	years	later,	the	court	held	a	two-day	trial.		The	parties	testified	

about	their	decision	in	February	2019 to	begin	living	apart.		They both	testified	

that	Patrick	had	emotionally withdrawn from	 the	marriage	during	Whitney’s	

pregnancy	 and	 that,	 approximately	 two	 weeks	 after	 their	 child	 was	 born,	

Whitney	went	to	California	with	the	child	to	receive support	from	her	family.		

Before	Whitney	and	the	child	left,	Patrick	and	Whitney	signed	a short statement	

entitled “Informal	Marriage	Agreement”	in	which	 they stated	 that	 they	were

neither legally	separating	nor	terminating	their	marriage.

[¶4]		The	parties	also	testified	about	their	decision	in	June	2019 to	legally	

end	 their	 marriage.	 	 Whitney	 testified	 that,	 after	 several	 months	 “without	

answers,”	she	filed	a	petition	for	legal	separation	on	May 31, 2019,	in	California.		

A	few	days	later,	Whitney	returned	to	Maine	with	the	parties’	child	for	a	visit.		

During	the	visit,	after	learning	that	Patrick	had	been	having	an	affair,	Whitney	
3

had	Patrick	served with	a	copy	of	the	petition.		Patrick	then	filed	for	divorce	in	

Maine.

[¶5]	 	 The	 parties	 also	 testified	 about	 their	 income and	 retirement	

accounts,	 and	 the	 court	 admitted	 numerous	 financial	 documents.	 	 Patrick	

testified that	he	has	worked	for	Versant	Power—formerly	Emera	Maine—since	

2014.	 	In	 2020,	 he	earned	 $103,176.64.	 	Patrick	further	 testified that	he	has	

three	retirement	accounts:	(1)	a	Vanguard	brokerage	account,	(2)	a	Vanguard	

Roth	IRA,	and	(3) a	Versant	Power	401(k)	account.		Because	the	parties	had	a	

“short	 marriage,”	 Patrick	 suggested	 that the	 court	 determine the	 marital	

portion	of	his	retirement	accounts using	the	values of	the	accounts on	the “date	

of	separation”	rather	than	at	the	time	of	the	hearing.		He	offered	several	exhibits

to	 establish	 the	 balances	 of	 his	 retirement	 accounts on	 various “milestone”	

dates,	including the	date	of	the	marriage,	the	“date	of	separation,” the	date	of	

the	judicial	settlement	conference, and	the	date	of	the	divorce	hearing.		Some	of	

the	exhibits	used	a	“date	of	separation” in	February	2019, while other	exhibits	

used	 a	“date	 of	 separation” in	 June	 2019.	 	At	 the	 time	 of the trial,	 Patrick’s	

retirement	accounts	had	a	combined	value	of $357,063.50.

[¶6]		Whitney	 testified	 that	she	currently	works	as	a	special	education	

teacher	in	California and	 that	she	had	worked	as	a	special	education	 teacher	
4

when	she	lived	in	Maine.		In	2020,	she	earned	approximately	$28,000.		Whitney	

further	testified	that	she	has	four	retirement	accounts:	a	MainePERS	account,	a	

CalSTRS account,	 a	 Vanguard	 brokerage	 account,	 and	 a	 Vanguard	Roth	IRA.		

Regarding	 her	 MainePERS	 account,	 Whitney	 testified	 that	 the	 account	 was	

valued	at	$4,739.25	at	the	time	of	the	marriage	and	$10,689.76	as	of	April	2021.		

Regarding	her	CalSTRS account,	Whitney	testified	that	the	account	was	valued	

at	$3,018.66	as	of	January	2021.		Two	weeks	before	trial, Whitney	submitted	an	

updated	 financial	 statement in	 which	 she	 indicated	 that	 her	 Vanguard	

brokerage	account	and	Vanguard	Roth	IRA had	a	combined	value	of	$15,773.67	

and	that	the	accounts	had	both	marital	and	nonmarital	components.		At	trial,	

Whitney	 testified	 that	 her Vanguard	 accounts	 had	 a	 combined	 balance	 of

$3,817.41	at	 the	 time	of	 the	marriage and	that	 they	had	a	current	balance	of

$16,031.48.	 	To	 support	 her	 testimony,	Whitney	 offered	account	 statements,	

which	 the	 court	admitted.	 	According	 to	 this evidence,	Whitney’s	 retirement	

accounts	had	a	total	value	of	$29,739.90.
5

[¶7]		Whitney	requested	that	Patrick	pay	$12,987.20	toward	her	attorney	

fees and	 submitted an	 affidavit	 showing that	 she	 had	incurred	that	 amount,

excluding	fees incurred	for the	two	days	of	trial.2

[¶8]	 	On	August	 4,	 2021,	 the	 court	 entered	 a	judgment	of divorce	 and	

denied Whitney’s	 request	 for	 attorney	 fees.3	 	 Although	 the	 court	 did	 not

expressly find	 that	 the	 parties	 had	legally	 separated,	 the	 court	 relied	 on	 the	

“date	of	separation”4 to	determine	the	marital	and	nonmarital	components	of	

Patrick’s	 retirement	accounts.		For	Patrick’s	401(k)	account,	 the court	found	

that	it was	valued at $32,847.21	on	the	date	of	the	marriage	and	$78,407.24	on	

the	“date	of	separation.”		The	court	determined	that	the	increase	in	value	from	

the	date	of	the	marriage	to	the	“date	of	separation” was	marital	property	and	

divided	it	 evenly	 between	 the	 parties.	 	For	 Patrick’s	 Vanguard	 accounts, the	

2		Whitney’s	attorney	fee	affidavit also did	not	include—and	she	did	not	seek—attorney	fees that	

she had	incurred	in	California.

3		A	table	showing	a	distribution	of	the	parties’	retirement	accounts	and	real	property	appears	in	

the	trial	court	file	and	was	included	in	the	appendix.		See, e.g.,	Carter v. Carter, 2006 ME 68, ¶ 8 & n.4,

900 A.2d 200.		The	origin	of the	table is	not	apparent	from	either	the	judgment	or	the table itself,	but	

the	parties	agreed	at	oral	argument	that	the	trial	court	created	the	table	and	that	the	table	forms part	

of	the	judgment. The	best	practice	 for	a	trial	court	including	an	attachment with	a judgment	is	to	

expressly	incorporate	the	attachment	into	the	judgment	by	reference.

4		The	trial	court	did	not	identify	the	date	on	which	it	found	that	the	parties	had	separated.		Based	

on the	record,	it	appears	that	the	trial	court	used a	“date	of	separation”	of	 June	2019	for	Patrick’s	

401(k)	account	but	used	a “date	of	separation”	of	February	2019	for	Patrick’s	Vanguard	accounts.		

The	trial	court	did	not	use any “date	of	separation”	to determine the	character	or	values	of	Whitney’s	

accounts.
6

court	 found	 that they had	a	combined	value	of	$88,570.86	on	 the	date	of	 the	

marriage	and	$137,845.00 on	the	“date	of	separation.”		The	court	further	found	

that	Patrick	had	made	a	“nonmarital	gift”	of	$25,000	during	the	marriage	that	

had	 contributed	 to	 the	increase	in	the	Vanguard	 accounts’	 combined	 value.

5		

After	setting	aside	$113,570.86	to	Patrick	as	his	nonmarital	property,	the	court	

found	 that	 the	 remaining	 $24,274.14	 was	 marital	 property	 and	 divided	 it	

evenly	between	the	parties.

[¶9]		Regarding	Whitney’s	retirement	accounts,	the	court	found	that	her	

MainePERS	 account	was	 entirely	 marital	 and	 that	 her	 CalSTRS account	 was	

entirely	nonmarital.		The	court	awarded	both	accounts	to	Whitney.		The	court	

further	awarded	 to	Whitney	her Vanguard	 brokerage	account	and	Vanguard	

Roth	 IRA,	 which	 the	 court	 found	 were	 entirely	 marital	 property	 and	 were	

valued	at	$15,773.67	and	$12,214.07,	respectively.

[¶10]	 	 Whitney	 timely	 filed	 a	 motion	 for	 further	 findings	 of	 fact	 and	

conclusions	of	law	with	an	incorporated	motion	to	alter	or	amend	the	judgment.		

See M.R.	Civ.	P.	52(b),	59(e).		She also	renewed	her	request	 for	attorney	 fees,	

5		At	trial,	Whitney	argued	that	Patrick’s	$25,000	contribution	was	marital	property	because	the	

bank	account	from	which	he	made	the transfer	contained	comingled marital	and	nonmarital	funds.

She	does not	challenge	the	court’s	finding	on	appeal.
7

seeking	 an	 award	 of	 $5,000.	 	 The	 court	 denied	 Whitney’s	 motions,	 and	 she	

timely	appealed.

II.		DISCUSSION

A. Classification	of	the	Parties’	Retirement	Accounts

[¶11]		Whitney	argues	that	the	trial	court	erred	in	its	classification	of	the	

parties’	retirement	accounts	by	relying	on	 the	parties’ de	 facto	separation	 to	

characterize	 portions	 of Patrick’s	 accounts as	 nonmarital and by	 not	 setting	

aside	 the	 nonmarital	 portions	 of	 her	 accounts	 as	 required	 by	 statute.	 	 She	

further	argues	that	the	trial	court	erred by	awarding	her an	account	that	does

not	exist. “A	court’s	determination	that	a	retirement benefit	or	account,	or	a	

part	 thereof,	 is	 marital	 or	 nonmarital	 property is	 reviewed	 for	 clear	 error.”		

Bojarski v. Bojarski, 2012 ME 56, ¶ 15, 41 A.3d 544.		“However, we review the

application of the law to the facts de novo.”		Id.		“Although we ordinarily assume

that a trial court found all the facts necessary to support its judgment, when, as

here, a motion for findings has been filed and denied, we cannot infer findings

from the evidence in the record.” Mooar v. Greenleaf, 2018 ME 23, ¶ 7, 179 A.3d

307 (quotation	marks	omitted).		“We	confine	our review	to	the	court’s	explicit	

findings and	determine	whether	those	findings	are	supported	by	the	record.”

Sulikowski v. Sulikowski, 2019 ME 143, ¶ 11, 216 A.3d 893.
8

1. The	delineation	 of	Whitney’s	public	employment retirement	

accounts	as	marital	or	nonmarital	property	must	be	calculated	

pursuant	to	the	three-step	process	for	division	of	property	in	

a	divorce	matter.

[¶12]	 	“We	 have long	 recognized	 a	 three-step	 process	for	 distributing	

property	in	a	divorce.”		Laqualia v. Laqualia, 2011 ME 114, ¶ 13, 30 A.3d 838;

see 19-A	M.R.S.	§	953	(2021).6		“The trial court must first distinguish marital

from nonmarital property.		Then,	the	court	must	set	apart	nonmarital	property.		

Finally,	the	court	must	divide	marital	property	in	such	proportion	as	the	court	

deems	just.”		Laqualia, 2011 ME 114, ¶ 13, 30 A.3d 838 (citations	and	quotation	

marks	omitted).

[¶13]	 	 “The	 trial	 court	 has	 no	 discretion	 in	 the	 allocation	 of	 the	

nonmarital	property;	it	must	be	transferred	to	the	spouse	to	whom	it	belongs.”		

Id. ¶ 15 (quotation	marks	 omitted).	 	When	a	 party	in	a	 divorce	action	 has	a	

retirement	account	that	accrued	both	before	and	during	the	marriage,	the	trial	

court	should	first	determine	the	present value	of	the	account.		See	Skibinski v.

Skibinski, 2009 ME 13, ¶ 7, 964 A.2d 641.		It should then determine	the value	of

6		Title	19-A	M.R.S.	§	953 has	been	amended twice since	the	divorce	judgment	was	entered.		See

P.L. 2021,	 ch.	 122,	 §	 3	 (effective	Oct.	 18,	 2021) (codified	 at	 19-A	M.R.S.	 §	 953(1)(B)-(D) (2022));	

P.L. 2021,	ch.	285,	§	1	(effective	Oct.	18,	2021) (codified	at	19-A	M.R.S.	§	953(10)	(2022)).		Although	

the	amendments	do	not	affect	our	analysis,	we nevertheless cite	the	statute	that	was	in	effect	when	

the	judgment	was	entered.
9

the	nonmarital	portion	 that	is	 to	be	set	aside	and	determine the value	of the	

marital	portion	that	is	subject	to	division.		See	id.

[¶14]		Title	19-A	M.R.S.	§	953(2)	broadly	defines	“marital	property”	as	

“all	 property	 acquired	 by	 either	 spouse	 subsequent	 to	 the	 marriage.”		

“Nonmarital	 property”	 includes	 property	 that	 falls	 into	 the	 statutorily	

enumerated	 exceptions	 to	 “marital	 property,”	 see	 id. § 953(2)(A)-(E), and	

property	acquired	by	either	spouse	before	the	marriage,	see Miliano v. Miliano,

2012 ME 100, ¶ 16, 50 A.3d 534;	Long v. Long, 1997 ME 171, ¶ 9, 697 A.2d 1317.

[¶15]		Here,	Whitney	testified	that	her	MainePERS	account	had	a	balance	

of	$4,739.25	at	the	time	of	the	marriage	and	a	balance	of	$10,689.76	near	the	

time	of	trial.		Whitney	further	testified	that	her	CalSTRS account	had	a	balance	

of	$3,018.66	as	of	January	2021.		Although	the	court	correctly	determined	the	

present	value	of	Whitney’s	MainePERS	account,	the	court	erred	by	not	setting	

aside	 to	 Whitney	 as	 her	 nonmarital	 property	 the	 $4,739.25	 that	 was	 in	 the	

account	 before	 the	 marriage.	 	 See 19-A	 M.R.S.	 §	 953(1)-(2);	 Miliano,

2012 ME 100, ¶ 16, 50 A.3d 534.		Similarly,	the court	correctly	determined	the	

present	value	of	Whitney’s	CalSTRS account,	but	the	court’s	determination	that	

the	account	was	wholly	nonmarital	is	not	supported	by	the	record	because the	

undisputed	 evidence	 shows	 that	 the	 account	 was	 established	 during	 the	
10

marriage.	 	 See 19-A	 M.R.S.	 §	 953(1)-(2);	 Miliano, 2012 ME 100, ¶ 16,

50 A.3d 534.

[¶16]		Patrick	concedes	that	the	trial	court’s	findings	are	erroneous	but	

argues	that—at	least	to	some	extent—the	errors	are	harmless	because the	trial	

court	 awarded	 to	 Whitney	 all	 retirement	 accounts	 in	 her	 name.	 	 Patrick	

contends	that	the	court	does	not	have	to	“do	math	with	surgical	precision”	and	

that	“[r]ough	mathematical	justice	is	sufficient.”		Because	we	cannot	say	that	it	

is	 highly	 probable	 that	 the	 trial	 court’s	 division	 of	marital	property	was	 not	

affected	by	its	erroneous	findings,	the	errors	are	not	harmless.		See Marston v.

Marston, 2016 ME 87, ¶ 9, 141 A.3d 1106.

2. The	relevant	date	for	determining	the	marital	and	nonmarital	

portions	of	Patrick’s	retirement	accounts	is	not	the	date	of	the	

parties’	de facto	separation	but	rather	the	date	of	the	entry of	

the	divorce	judgment.

[¶17]	As	mentioned	above,	“nonmarital	property”	refers	to	property	that	

falls	 into	 any	 one	 of	 the	 exceptions	 to	 “marital	 property”	 listed	 in	

section 953(2)(A)-(E).		One	such	exception	is	“[p]roperty	acquired	by	a	spouse	

after	a	decree	of	legal	separation.”		19-A M.R.S.	§	953(2)(C).		Separation	decrees	

are	governed	by	19-A	M.R.S.	§	851	(2022).		“[O]nce	a	decree	of	separation	has	

been	entered,	all	marital	property	distributed	to	each	spouse	by	decree	and	all	

property	 newly	 acquired	 by	 each	 spouse	 after	 the	 decree	 will	 thereafter	 be	
11

treated	as	nonmarital	property	pursuant	to	subsection	953(2)(C)	if	the	parties’	

marriage	 is	 subsequently	 dissolved	 through	 a	 divorce	 decree.”	 	 Levy,	Maine	

Family	Law §	7.6[4][c]	at	7-41 (8th	ed.	2013).

[¶18]	 	 Generally,	 property	 acquired	 during	 a	 de	 facto	 separation,	

however,	is	marital.		In	Kaye	v.	Kaye,	538	A.2d	288,	289	(Me.	1988),	the	husband	

argued	 that	 the	 trial	court	had	impermissibly	characterized	property	 that	he	

had	acquired	by	his	sole	effort	after	he	and	his	wife	had	separated as	marital.		

We	disagreed	and	held	that

[t]he	legislative	definition	of	all	property	acquired	after	marriage	

and	prior	to	“a	decree	of	legal	separation”	as	presumptively	marital,	

constitutes	 a	 deliberate	 choice	 of	 a	 clear	 demarcation	 point

evidenced	 by	 a	 formal	 decree.	 	 In	 the	 absence	 of	 a	 judicially	

sanctioned	 separation,	 the	 parties’	 agreement	 to	 a	 de	 facto	

separation	 does	 not	 prevent	 the	 marital	 presumption	 from	

attaching	to	subsequently	acquired	property.

Id. (examining	 the	 predecessor	 statute	 to	 19-A	 M.R.S.	 §	 953).	 	 Similarly,	 in	

Doucette	v.	Washburn,	2001	ME	38,	¶¶	2-6,	766	A.2d	578, the husband argued

that the trial court should have set aside to him as his nonmarital property a

workers’ compensation lump sum award that he received while the parties

were living apart.		Citing section 953(2)(C) and Kaye, we summarily rejected

his argument, stating that it had “no merit.”		Id. ¶ 16 n.10.
12

[¶19]		The	record	is	clear regarding the	parties’	separation.		Patrick	and	

Whitney began	 living	 apart	 in	 February	 2019 when	 Whitney	 moved	 to	

California.	 	 At	 that	 time,	 they	 signed	 an agreement in	 which	 they	 expressly	

stated	that	they	were	not legally	separating.		Whitney	filed	a	petition for	legal	

separation	 in	 California	 and	 had	 Patrick	 served	 with	 the	 paperwork in	

June 2019.		Patrick	filed	for	divorce	a	few	days	later.		There	is	no	evidence	in	

the	 record	 that	 any	 court	 ever	 issued	 a	 decree of	 legal	 separation,	 and	 the	

parties	do	not contend	that	they	were	legally	separated.

[¶20]		Although	the	trial	court	did	not	expressly	find	that	the	parties	had	

legally	separated,	see 19-A	M.R.S.	§	953(2)(C),	the	 trial	court	assigned	a	total	

value	 of	 $216,252.24	 to	 Patrick’s	 retirement	 accounts	 based	 on	 the “date	 of	

separation.”	 	In	 doing	 so,	 the	trial	 court	implicitly	 found	 that	 the	increase	in	

value	of	Patrick’s	retirement	accounts	after	the	parties’	de	facto	separation	was	

Patrick’s	nonmarital	property.		This erroneous	 finding resulted	in	more	 than	

$140,000 being	improperly	 classified	as	Patrick’s	nonmarital	 property given

the	 undisputed	 evidence	 showing that	 Patrick’s	 retirement	 accounts	 had	 a	

balance	of	$357,063.50	at	the	time	of	trial.

7

7	 	The	trial	 court	 did	 not	 find—and	 the	 record	would	 not	 have supported a	 finding—that	 the	

approximately	 $140,000 increase	 in	 the	 value	 of	 Patrick’s	 retirement	 accounts	 after	 the	 parties’

de facto	separation was	solely	due	to	“[a]ppreciation	resulting	from	market	forces”	or	“[a]ppreciation	
13

[¶21]	 	 When	 a court	 divides	 the	 marital	 estate,	 it	 may	 consider	 “all	

relevant	factors,”	19-A	M.R.S.	§	953(1),	including	the	duration	of	the	marriage,	

see	Monahan v. Monahan, 2015 ME 65, ¶¶ 3, 6, 116 A.3d 950; Eaton v. Eaton,

447 A.2d 829, 831 (Me. 1982).		The	duration	of	the	marriage	is	not	a	relevant	

factor,	however,	in	determining	whether	property	is marital	or	nonmarital.		See	

Laqualia, 2011 ME 114, ¶ 15, 30 A.3d 838.	 	 “The	 equitable	 considerations	

applicable	 to	 the	just	division	of	marital	property do	not	apply	 to	 the	setting	

apart	of	nonmarital	property.”		Id. (quotation	marks	omitted).

3. The	trial	court	erred	by	double	counting	Whitney’s	Vanguard	

retirement	accounts.

[¶22]		Whitney	submitted	an	updated	financial	statement	before	trial	in	

which	 she	 indicated	 that	 her	 Vanguard	 accounts	 had	 both	 marital	 and	

nonmarital	components	and	a	combined	value	of	$15,773.67.		At	trial,	Whitney	

produced	a	current	account	statement	showing	that	the	balance	of	the	accounts	

had	 increased	 to	 $16,031.48	 since	 she	 submitted	 her	 updated	 financial

statement	and	that	the	accounts	had	a	balance	of	$3,817.41	at	the	time	of	the	

marriage—a	 difference	 of	 $12,214.07.	 	 The	trial	 court	 found	 that	Whitney’s	

Vanguard	accounts were	presently	valued	at	$15,773.67	and	$12,214.07 and	

resulting	from	reinvested	income	and	capital	gain.”		19-A	M.R.S.	§	953(2)(E)(1);	see Miliano v. Miliano,

2012 ME 100, ¶¶ 13, 23, 50 A.3d 534.
14

that	they	were	entirely	marital.		The	trial	court’s	findings	are	erroneous	for	two	

reasons.		First,	it	appears	that	the	court	mistakenly	double	counted	Whitney’s	

Vanguard accounts,	thereby	awarding	her	an	account	that	did	not	exist.	Second,	

although	 competent	evidence	in	 the	 record	 supports	the	 trial	court’s	 finding	

that	$12,214.07	of	Whitney’s	Vanguard	accounts	was	marital	property	where

the accrual	occurred during	 the	marriage	using	marital	 funds,	 the trial court	

erred	by	not	determining	the	accounts’	present	value	and	by	not	setting	aside	

the	 $3,817.41	 that	 existed	 at	 the	 time	 of	 the	 marriage	 to	 Whitney	 as	 her	

nonmarital	property.

[¶23]		In	sum,	we	vacate	the	trial	court’s	findings	regarding	both	parties’	

retirement	accounts	and	remand	to	the	trial	court	to	redetermine	the	marital	

and	nonmarital	portions	of	each	retirement	account	of	each	party	and	reassess	

the	fairness	of	the	division	of	the	marital	estate.		See Cole v. Cole, 561 A.2d 1018,

1021 (Me. 1989).	 	 Although	 divorce	 actions	 present	 many	 challenges,	

particularly	when	 complicated	 financial	matters	are	involved,	 the	 challenges	

are	not	insurmountable.		“By	applying	a	clear,	step-by-step	analysis	pursuant	

to	statutory	mandates,	and	allocating	appropriate	burdens	of	proof along	the	

way,	 counsel	 and	 the	 courts	 can	make	 their	 way	 through	 the	 potential	legal	

quagmire	 that	 these	 cases	 often	 present.”	 	 Miliano, 2012 ME 100, ¶ 11,
15

50 A.3d 534; see also Axtell v. Axtell, 482 A.2d 1261, 1264 (Me. 1984) (“Casting

the judgment in specific amounts will make the result more comprehensible for

the litigants and will facilitate appellate review . . . .” (quotation marks

omitted)).

B. Attorney	Fees

[¶24]		Title	19-A	M.R.S.	§	105(1)	(2022)	provides	that,	in	a	divorce	action,	

the	court	may	order	a	party	 to	pay	another	party’s	reasonable	attorney	 fees.		

A decision	 on	 a	 request	 for	 an	 award	 of	 attorney	 fees	 “necessarily	 requires	

consideration	of	the	parties’	relative	capacity	to	absorb	the	costs	of	litigation	in	

addition	to	all	other	relevant factors	that	serve	to	create	a	fair	and	just	award	

under	the	totality	of	the	circumstances.”		Riemann v. Toland, 2022 ME 13, ¶ 42,	

269 A.3d 229.		“The court must provide a concise but clear explanation of its

reasons for grant or denial of the fee award.”		Neri v. Heilig, 2017 ME 146, ¶ 16,

166 A.3d 1020 (quotation marks omitted).		“We review a trial court’s decision

on attorney fees for an abuse of discretion.”		Sulikowski, 2019 ME 143, ¶ 20,

216 A.3d 893.

[¶25]		Because	we	vacate	the	portion	of	the	judgment	dividing	the	parties’	

marital	property,	we	also	vacate	the	trial	court’s	denial	of	Whitney’s	request	for	

attorney	fees.		On	remand,	in	determining	whether	to	award	Whitney	attorney	
16

fees,	 the	 trial	 court	 must consider	 the	 disparity	 in	 the	 parties’	 income	 and	

assets, as	well	as	any	other	factors	that	the	court	deems	relevant, and	articulate	

the	reason	for	its	decision.

The	entry	is:

The judgment	 is	 vacated	 as	 to	 the	 property	

division	and	attorney	fees.		The	remainder	of	the	

judgment	 is	 affirmed.	 	 Remanded	 for	 further	

proceedings	consistent	with	this	opinion.

Kelley	E.	Mellenthin,	Esq. (orally),	Lincolnville	Center,	for	appellant	Whitney	D.	

Moran

Scott	 J.	 Lynch,	 Esq. (orally),	 Lynch	 &	 VanDyke,	 P.A.,	 Lewiston,	 for	 appellee	

Patrick	R.	Moran

Belfast	District	Court	docket	number	FM-2019-116

FOR	CLERK	REFERENCE	ONLY