MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	85

Docket: Cum-18-490

Argued: May	15,	2019

Decided: May	30,	2019

Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN, JABAR,	HJELM,	and	HUMPHREY,	JJ.

MARK	C.	KLEIN

v.

JESSICA	A.	(DEMERS) KLEIN

JABAR,	J.

[¶1]	 	 Mark	 C.	 Klein	 appeals	 from	 a	 judgment	 of	 the	 District	 Court	

(Portland,	Cashman,	J.)	granting	a	divorce	 from	 Jessica	A.	Demers and	setting

parental	rights	and	responsibilities	between	them	as	to	their	minor	child and

from the	 denial	 of	 his	 motion	 for	 further	 findings	 of	 fact.	 	 We	 vacate	 the	

judgment	in	part	and	remand.

I.		BACKGROUND

[¶2]	 	 Klein and	 Demers were	 married	 on	 January	 2,	 2015,	 and	 in	

September	of	that	year,	Demers gave	birth	to	the	parties’	daughter.		Although	

Klein and	Demers initially	 worked	 together	 to	 care	 for	 their	 daughter,	 their	

relationship	 began	 to	 deteriorate	 over	 the	 next	 year,	 culminating	 in	 Klein
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moving	out	of	the	family	home	and	Demers taking	the	child	out of the	state but	

later	returning.		

[¶3]		In	late	2016,	Klein filed	a	complaint	for	divorce against	Demers, and	

after	several	failed	mediations,	the	court	held	a	three-day	hearing	solely	on	the	

issue	of	parental	rights	and	responsibilities.1		On	October	17,	2018,	the	court	

issued	 its	 judgment,	 awarding Demers primary	 residence	 of	 the	 child	 and	

allocating parental	 rights	 and	 responsibilities	 between	Klein and	Demers as	

“generally	 .	 .	 .	shared	 .	 .	 .	subject	 to	 the	allocation	 of	 final	decision	making	 to	

[Demers].”		The	court	also	created	a	phased	schedule	for	Klein’s	contact with	

the	child that	increased	his	visitation	with	the	child	over	four	distinct	periods	

of	 time, culminating	 in	 one	 four-hour	 period	 each	 week	 combined	 with	

overnights	every	other	weekend.		

[¶4]		Klein filed	a	motion	for	reconsideration,	see M.R.	Civ.	P.	59(e),	and	a	

motion	for	further	findings	of	fact,	see	M.R.	Civ.	P.	52(b).		The	court	denied	both

motions.		Klein timely	appealed.		See	M.R.	App.	P.	2B(c)(1);	14	M.R.S.	 §	1901	

(2018);	19-A	M.R.S.	§	104	(2018).

 1		Prior	to	the	hearing,	Klein and	Demers stipulated	to	all	financial	aspects	of	the	divorce,	including	

spousal	 support,	 property	 and	 debt	 division,	 and	 child	 support.	 	 Neither	 party	 challenges	 the	

resulting	portions	of	the	judgment on	appeal.
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II.		DISCUSSION

[¶5]		Klein contends that	the	court	abused	its	discretion	by	allocating	final	

decision-making	authority to	Demers and by	placing	limitations	on his	contact	

with	the	child.		We	review	an	award	of	parental	rights	and	responsibilities	for	

an	abuse	of	discretion. See	Dube	v.	Dube,	2016	ME	15,	¶	5,	131	A.3d	381;	Violette	

v.	Violette,	2015	ME	97,	¶	30,	120	A.3d	667.		We review	 the denial	of	Klein’s	

motion	 for	 further	 findings	for	 an	 abuse	 of	 discretion as	 well.	 	 See Mooar	 v.	

Greenleaf,	2018	ME	23,	¶	7,	179	A.3d	307.		

[¶6]		 In	making	factual	findings,	a	court	 “is	 free	 to	accept	 or	 reject	 the	

testimony	 of	individual	witnesses	in	whole	 or	in	part,	and	it	is	 free	 to	 reject	

testimony	 that	is	not	contradicted	if	it	 finds	 that	 testimony	incredible.”	 In	re	

Marpheen	 C.,	 2002	ME	 170,	 ¶	 5,	 812	 A.2d	 972.	 	 In	 doing	 so,	 the	 court “must	

consider	 all	 properly	 admitted	 evidence”	 and	 then	 apply “its	 independent	

judgment	to	that	evidence	in	reaching	its	findings	and	conclusions.”		Id.		In	the	

normal	course,	we	may	 “assume	 that	 [the	court]	 found	 all	 facts	necessary	 to	

support	its	judgment.”	 Mooar,	2018	ME	23,	¶	7,	179	A.3d	307.		However,	when,	

like	here,	a	motion	for	further	findings	has	been	filed and	denied,	“we	cannot	

infer	findings	from	the	evidence	in	the	record.”		Douglas	v.	Douglas,	2012	ME	

67,	¶	27,	43	A.3d	965.		Instead,	the	court’s “judgment	[must	be] supported	by	
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express	 factual	 findings	 that	 are	 based	 on	 record	 evidence,	 are	 sufficient	 to	

support	the	result,	and	are	sufficient	to	inform	the	parties	and	any	reviewing	

court	 of	 the	 basis	 for	 the	 decision.”	 	Mooar,	 2018	 ME	 23,	 ¶	 7, 179	 A.3d	 307

(quotation	marks	omitted).

[¶7]	 	 In	 this	 case,	 the	 court’s	 judgment	 does	 not	 contain	 the	 express	

factual	findings	that	are	necessary	to	support	its	conclusion that	allocation	of	

final	decision-making	authority	to	Demers and	limitations	on	Klein’s	contact	is

in	the	best	interest	of	the	child.		Although	the	court	described the	testimony	of	

the	parties	and	witnesses	at	length,	it	did not	state	what	testimony	it	believed	

or	what	findings	it	made on	the	basis	of	that	testimony.		See, e.g., In	re	Brandon	

D.,	2004	ME	98,	¶	4,	854	A.2d	228 (“Many	of	the	statements .	.	.	begin	with	the	

phrase	‘the	witness	testified	that,’ but	a	few	sentences	contain	the	phrase	‘the	

court	concludes’ or	‘the	court	finds. .	.	.	[F]rom	the	context,	it	appears	that	the	

court	is	summarizing	testimony.’”);	In	re	Marpheen	C.,	2002	ME	170,	¶	5,	812	

A.2d	 972	 (“A	 summary	 of	individual	witness’s	 testimony	is	 not	 necessary	 or	

even	desirable	as	part	of	[the] fact-finding	process.”).		As	a	result,	we	are	unable	

to	engage	in	effective	appellate	review	of	the	contested	issues.

[¶8]	 	Because the	 court’s	 judgment,	 despite	 discussing	 the	 evidence at	

length, does	 not	 contain	 adequate	 findings to	 support	 its	 result, the	 court	
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abused	its	discretion	by	denying	Klein’s	motion	for	further	findings	of	fact.		See	

Ehret	 v.	 Ehret,	 2016	 ME	 43,	 ¶	 9,	 135	 A.3d	 101 (“[I]f	 the	 judgment	 does	 not	

include specific	 findings	 that	 are	 sufficient	 to	 support	 the	 result,	 appellate	

review	is	impossible	and	 the	 order	denying	 findings	must	be	 vacated.”).		We	

therefore	 vacate	 that	 portion	 of	 the	 court’s	 judgment	 bearing	 on	 final	

decision-making	authority	and	Klein’s	contact	with	the	child,	and	remand	for

the	court	 to	make further	 factual	 findings based	upon	 the	 substantial	 record	

already	 before	 it	 and	 to	 enter	 a	 new	 or	 renewed	 judgment	 on	 final	

decision-making	 authority	 and	 Klein’s	 contact	 with	 the	 child.

2	 	 See	 M.R.	

Civ. P. 52(b)	(in	acting	on	a	motion	for	further	findings	of	fact,	the	court	“may	

amend	the	judgment	if	appropriate”).

 2	 	 In	 the	 interest	 of	 judicial	 economy and	 finality,	 we	 also	 briefly	 address	 Klein’s	 additional

contentions.		First,	a	judgment	setting	the	parental	rights	and	responsibilities	between	two	parents	

does	not	constitute	a	state	intrusion	into the	 fundamental	right	 to	parent,	nor	does	it	deny	either	

parent	equal	protection	of	that	right.		See Mills	v.	Fleming,	2017	ME	144,	¶	7,	166	A.3d	1012	(stating	

that	 a	 “judgment	 respecting	 parental	 rights	 and	 responsibilities	 does	 not	 implicate	 a	 parent’s	

fundamental	right	to	parent	unless	it	.	.	.	directly	and	substantially	limits	the	parent’s	decision-making	

authority	 and	 delegates	 an	 aspect	 of	 parental	 rights	 and	 responsibilities to	 a	 third	 party”);	

Guardianship	of	Chamberlain,	2015	ME	76,	¶	26,	118	A.3d 229	(explaining	that a standard	of	proof	of	

a preponderance	of	the	evidence is	applicable	because	an	action	for divorce	or	parental	rights	and	

responsibilities	seeks	to	“balanc[e]	the	rights	of	two	individuals	who	have	equal	rights	in	parenting”);	

Jacobs	 v.	Jacobs,	 507	 A.2d	 596,	 599	 (Me.	 1986)	 (stating	 that	 “there	is	 no	 need	 to	 provide	 special	

protection	 for	 the	 familial	 relation	interest	 of	 one	parent	against	 the	 other	who	 has	 the	identical	

interest”).		

Second,	a	court	is	authorized	to	award	a	combination	of	shared	and allocated	parental	rights

by granting	one	parent	explicit	final	decision-making	authority	when	necessary	for	the	best	interest	

of	a	child.		See	19-A	M.R.S.	§§ 1501(1),	1653(2)(D)(1)	(2018);	Sheikh	v.	Haji,	2011	ME	117,	¶ 15,	32	

A.3d	 1065	 (“[T]he	 trial	 court	 [did	 not]	 abuse	 its	 discretion	 in	 awarding	 final	 decision-making	

authority	to	[one parent]	in	the	event	that	the	[parents] disagree	about	significant	decisions	affecting	

the	child[].”).		
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The	entry	is:

Order	denying	motion	 for	 further	 findings	with	

regard	 to	 allocation	 of	 final	 decision-making	

authority	and	rights	of	contact	vacated.		Divorce	

judgment	 vacated	 only	 as	 to	 allocation	 of	 final	

decision-making	authority	and	rights	of	contact.		

Remainder	of	judgment	affirmed.		Remanded	for	

further	proceedings	consistent	with	this	opinion.

Daniel	 D.	 Feldman,	 Esq. (orally),	 Hallett	 Whipple	 Weyrens,	 Portland,	 for	

appellant	Mark	C.	Klein

Christopher	 R.	 Causey,	 Esq. (orally),	 Bourque	 Clegg	 Causey	 &	 Morin	 LLC,	

Sanford,	for	appellee	Jessica	A.	(Demers) Klein

Portland	District	Court	docket	number	FM-2016-735

FOR	CLERK	REFERENCE	ONLY