MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2023 ME	53

Docket: Han-22-357

Submitted

On	Briefs: April	19,	2023

Decided: August	15,	2023

Panel: STANFILL,	C.J.,	and MEAD,	HORTON,	CONNORS,	LAWRENCE,	and	DOUGLAS, JJ.

BONNIE	J.	(MCCARTHY-GUBER)	MCCARTHY

v.

JACOB	I.	GUBER

STANFILL, C.J.

[¶1]	 Jacob I. Guber	 appeals	 from	 the	 District	 Court’s	 (Ellsworth,	

David Mitchell,	J.) divorce	judgment.		Guber	argues	the	court	erred	in	calculating	

past	child	support by	failing	to	account for	changes	in	the	parties’	incomes and	

child	care	costs, to	use	the	substantially-equal-care	calculation, and to	provide

Guber	with	a downward deviation from	 the	child	support	guidelines.		Guber	

also	argues	the	court	erred in	calculating	his	future child	support	obligation by	

excluding	his	child care	costs.		We	agree that the	court	erred	in	its	calculation	

of	past	and	future support	and	therefore	vacate	the	court’s	child	support	order	

and	remand	for	further proceedings.	
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I.		BACKGROUND

[¶2]		The	following	facts,	which are	supported	by	the	evidence,	are	drawn	

from	 the	 procedural	 record	 and	 the	 court’s	 findings	 of	 fact	 in	 the	 divorce	

judgment.		See Sulikowski	v.	Sulikowski,	2019	ME	143,	¶¶	2,	11,	216	A.3d	893.		

Guber	 and	Bonnie	 J.	(McCarthy-Guber)	 McCarthy were	 married	 in	 2017.	 	 In	

November	 2019,	McCarthy filed	a	 divorce	 complaint	 based	 on	irreconcilable	

marital	differences.	 	 The	 parties	 have	 one	 child	 together and	 had	informally	

agreed	 to	 equally	 split	 their	 time	 with	 the	 child	 pending	 the final	 divorce	

judgment.		

[¶3]		In	March 2020,	McCarthy moved	for	an	interim	hearing	to	address	

child	 support.	 	 Using	 the	 calculation	 applicable	 when	 the	 parties	 provide	

substantially	equal	care	 for	 the	child,	see	19-A	M.R.S.	§	2006(5)(D-1)	(2023),	

she	 proposed	 an	interim	 order	 requiring	 Guber	 to	 pay	 $191.33	 per	week	in	

child	support.		Guber	opposed	any interim	order	because	he	was	unemployed	

at	the	time	and	unsure when	he	could	resume	gainful	employment.		The	court	

(Laskey,	M.)	denied	McCarthy’s	motion	 for	a	child	support	hearing under	 the	

COVID-19	pandemic emergency	protocols	then	in	effect.		Guber	voluntarily	paid	

a	total	of	$800 toward	child	support while	the divorce was	pending.		
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[¶4]	 	 Throughout	 the	 case,	 the	 parties	 filed	 multiple	 child	 support	

affidavits.	 	 McCarthy’s	 affidavits	 stated	 that she	 expected	 to	 earn	 $5,000	 in	

2019,	$18,720 in	2020,	and	$25,000	in	2022, with	weekly	child	care	costs	of	

$108 in	2022.		Guber	filed	an	affidavit in	2020 indicating he	expected	to	earn

$162,922.98	that	year,	with weekly	child	care	costs	of	$377.50.		In	2022,	Guber	

filed	an	updated	affidavit stating he	expected	to	earn	$117,000 that	year,	with	

weekly	child	care	costs	of	$80.		

[¶5]		The	court	(David	Mitchell,	J.)	held	a	contested	hearing	on	 June	14	

and	 15,	 2022.	 	 The	 parties submitted	 proposed	 divorce	 judgments at	 the	

hearing.		Guber’s	proposed	judgment	acknowledged	that	he	owed	past	support	

and	 suggested	 that the	 court use the	 substantially-equal-care	 calculation to	

calculate	past	support and	apply	a	fifty	percent downward	deviation	to	his	past	

support	 obligation.	 	 Guber	 further	 suggested	that	 the	 court	 calculate	 future	

child	support	with	him	as	the	primary	care	provider.		

[¶6]		McCarthy’s proposed	judgment	suggested	that	Guber owed her	past	

child	support.		She also	asked	that	the	court	order	Guber	to	pay	her	future	child	

support.		She	incorporated	two	child	support	orders	and	attached	worksheets.		

The first	child	support	order calculated	Guber’s past	support obligation	based	

on	the	parties’ providing substantially	equal	care	for	the	child.		The	second	child	
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support	 order addressed	 Guber’s	 support	 obligation	 after	 June	 17,	 2022,	

calculating his obligation	as	though	McCarthy was	the	primary	care	provider.	

[¶7]	 	The	 court’s	 divorce	 judgment,	 entered	 on	 July	 7,	 2022,	 awarded

primary	 residence	 to	McCarthy and	 ordered	Guber	 to	 pay $319	 per	week	in	

child	support	to	McCarthy	starting	October	25,	2019,	which	was	the	first	Friday	

after	service	of	the	divorce	complaint.		

[¶8]		On	July	20,	2022,	Guber	moved	for	a	new	trial	and	to	alter	or	amend	

the	judgment,see	M.R.	Civ.	P.	59(a),	(e),	asserting	that	in	awarding	past	support,	

the	court	should	have	considered	that	the	parties	shared	equal	time	with	the	

child and	that	their	incomes and	child	care	costs	fluctuated during	the	pendency	

of	 the	 divorce	 proceeding.	 He	 argued	 that	 the	 court	 should	 have	 used	 the	

substantially-equal-care	calculation and	applied	a	downward	deviation	to	his	

past child	 support obligation.	 	 Additionally,	 Guber asserted	 that	 the	 court	

ignored	his	child	care	costs in calculating	his	future child	support	obligation.		

The	next	day,	Guber	moved	for	further	findings	of	fact	and	conclusions	of	law,	

see	 M.R.	 Civ.	 P.	 52(b),	 concerning	 the	 same	 issues and	 making	 similar	

arguments.	

[¶9]	 	The	 court	 denied	Guber’s motions,	 explaining	 that	 “[i]n	 deciding	

whether	to	make	a	support	order	retroactive,	[the]	court	is	under	no	obligation	
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to	 compute	what	 a	 support	 obligation	would	 be	 at	 various	 times	 during	 the	

pendency	 of	 the	 case,” adding	 that	 it	 would	 not	 have	 made	 a	 substantial	

difference	in	any	event.	 Guber	timely	appealed.		14	M.R.S.	§ 1901(1)	(2023);	

M.R.	App.	P.	2B(c)(2).	

II.		DISCUSSION

[¶10]	 	 We	 review	 the	 court’s child	 support	 award	 for	 an	 abuse	 of	

discretion	 and	 the	 court’s	 underlying	 factual	 findings for	 clear	 error. See	

Bloom v.	Bloom,	2021	ME	 59,	¶	 6,	 263	A.3d	 491.	 	We	 review	 for	an	abuse	 of	

discretion	the	denial	of	a	motion	for	further	findings	of	fact.	 Klein	v.	Klein,	2019	

ME	85,	¶	5,	208	A.3d	802;	see	Ehret	v.	Ehret,	2016	ME	43,	¶	9,	135	A.3d	101

(explaining	that	when	a	court	denies a	motion	for	further	findings	of	fact,	we	

cannot	infer	any	findings	the court did	not expressly	include	in	its	judgment).	

We	review	de	novo	questions	of	statutory	interpretation.		Bloom,	2021	ME	59,	

¶	6,	263	A.3d	491.		

A. Guber’s	Past	Child	Support Obligation

[¶11]		“Child	support	in	Maine	is	governed	by	statute.” Bouchard v. Frost,	

2004	ME	9,	¶	14,	840	A.2d	109.	 The	child	support	statute	permits courts	 to	

award	both past	and	future child	support.		19-A	M.R.S.	§ 2006.		“[T]here	is a	

rebuttable	presumption	that	the	parental	support	obligation	derived	from	the	
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support	 guidelines	 is	 the	 amount	 ordered	 to	 be	 paid,	 unless	 support	 is	

established	 under	 2006,	 subsection	 5	 or	 2007.”	 	 19-A	M.R.S.	 §	 2005 (2023).		

Section	 2006(5)	 governs	 special	 circumstances,	 including	 when	 the	 parties	

provide	substantially	equal	care	for	the	child.		See	19-A	M.R.S.	§ 2006(5)(D-1).		

Section	2007	lists	the	criteria	for deviating	from	the	guidelines,	including	when	

the	application	of the	guidelines	would	be	unjust	or	inappropriate.		See	19-A	

M.R.S.	§ 2007(3)(A) (2023).		

[¶12]		Here,	the	court applied	the	guidelines	to	determine	Guber’s	future

child	support	obligation.		The	court’s	findings	on child	support	are	contained	in	

the	child	support	worksheet	and	order	that	were incorporated	in	the	divorce	

judgment,	which	 does	 not	explain	 the	 court’s	 findings	in	greater	 detail.	 	The	

court	 found	 that	 McCarthy’s annual income	 was	 $25,000	 and	 that	 Guber’s

annual	income	was	 $124,565.	 	 The	 court	 also	 found	 that	McCarthy incurred

$108	in	weekly	child	care	costs and	 that	Guber incurred no	child	care	costs.		

Applying	 the	 guidelines	 to	 these	 findings,	 the	 court	 concluded	 that Guber’s	

future child	 support	 obligation would	 be $319	 per	 week.	 	 The	 court	 then	

ordered	that	Guber’s	child	support obligation	would	be	“retroactive”to	the	first	

Friday	following	the	date	of	service	of	the	divorce	complaint.		
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[¶13]	 	 “Retroactive” support	 is	 separate	 and	 distinguishable	 from an	

award	of“past	support” under	the	child	support	statutes.		“Retroactive	support”	

is	 awarded	 when	 an	 existing	 child	 support	 order	 is	 modified	 and	 the	

modification	applies	 retroactively.	 	See	19-A	M.R.S.	 § 2009(2)	 (2023) (“Child	

support	orders	may	be	modified retroactively	but	only	from	the	date	that	notice	

of	 a	 petition	 for	 modification	 has	 been	 served	 upon	 the	 opposing	 party,	

pursuant	to	the	Maine	Rules	of	Civil	Procedure.”);	see,	e.g.,	Holbrook v.	Holbrook,	

2009	ME	80,	¶¶	5,	23,	976	A.2d	990.		 In	contrast,	“past	support”	is	awarded	

when	a	newly	issued	child	support	order	awards	support	during	a	prior period	

not	previously	governed	by	any	child	support	order.		See	19-A	M.R.S.	§ 2006(2).		

When	modifying	an	existing	award under	section	2009,	a	court	may	decide	that	

the	modification	should	be	retroactive,	meaning	that	it	should	start	before	the	

date	 of	 the	 amended	 judgment.	 See	 19-A	 M.R.S.	 § 2009(2).	 	In	 making	 that	

decision,	 the	 court	may	 consider,	inter	 alia,	when	 the	 factors	that led	 to	 the	

modified	award	arose.		In	this	context,	we	have	stated that	“[r]etroactivity	of	a	

[child] support	award	is	within	the	broad	discretion	of	the	court.”		Nicholson	v.	

Nicholson,	2000	ME	12,	¶	9,	747	A.2d	588;	see Levasseur	v.	Levasseur,	2010	ME	

5,	¶	6,	987	A.2d	528;	Holbrook,	2009	ME	80,	¶	23,	976	A.2d	990;	Finn	v.	Finn,	

517	A.2d	317,	319	(Me.	1986);	see	also	Wood	v.	Wood,	407	A.2d	282,	286-88	
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(Me.	 1979) (addressing	 the	 issue	 of	 retroactive	 modification	 before	 the	

legislature	adopted	section	2009(2)).	

[¶14]		Here,	however,	the court issued	a	child	support	order	for	the	first	

time	as	part	of	 the	divorce	judgment.		Accordingly, without	an	existing	child	

support	order	to	modify, the	retroactivity	language	of	section	2009(2)	does	not

apply	to	Guber’s	child	support	obligation.		

[¶15]		Instead,	the	issue	before	the	court	was	a	request	for	“past	support.”		

Although the	award	of	past	support	involves	many	discretionary	decisions,	the	

method	by	which	it	is	calculated does not.		Courts	are	required	to	calculate	past	

support	 “by	applying the	 current	 support	guidelines	 to	 the	 period	 for	which	

past	support	is	owed.”		19-A M.R.S.	§	2006(2);	see also	19-A	M.R.S.	§	1653(8)

(2023) (providing	that	in a	parent’s	action	for	child	support	under	19-A	M.R.S.	

§	1654 (2023),	“the	court	may	require	the	child’s	nonprimary	care	provider	to	

pay	past	support,” the	determination	of	which	must	comply	with	chapter	63,	

including	 section	2006(2));	19-A	M.R.S.	 § 2103(6) (2023) (explaining	 that	in

enforcement	actions	brought	by	the	Department	of	Health	and	Human	Services,	

the	“obligation	 for	past	support	due	is	established	by	application	of	the	most	

current	 child	 support	 scale	 to	 the	 responsible	 parent’s	 income	 for	 the	 time	

period	 in	 which	 the	 applicant	 was	 entitled	 to	 support	 payments	 and	 may	
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include	reimbursement	for	past	medical	expenses”).		This	means that the	court	

must	first	determine	the	parties’ incomes and	child care	costs,	as	well	as	any	

health	insurance	costs	or	extraordinary	medical	expenses,	for	the	past-support	

period.

1		See	19-A	M.R.S.	§	2006.		Then,	the	court	must	apply	the	child	support	

guidelines—including	whether	support	should	be	based	on	substantially equal	

care	and	whether	a	deviation is	justified—to	 those	 findings	 to	determine	 the	

past child	support	obligation for	a	given	period.		See	19-A	M.R.S.	§§	2005, 2006,	

2007;	see	also	Sullivan	v.	Doe,	2014	ME	109,	¶¶ 24-30,	100	A.3d	171.

[¶16]		We therefore conclude	that	the	court	erred	as	a	matter	of	law	by	

stating	it	was	“under	no	obligation	to	compute	what	a	support	obligation	would	

be	at	various	times	during	the	pendency	of	the	case”; section	2006(2)	provides	

to	 the	 contrary.	 	 An	 award	 of	 past	 support	 requires	 one	 or	 more	 such	

calculations	for	the	period	for	which	past	support	is	awarded.

2		See	19-A	M.R.S.	

§ 2006(2).	 	Because	we	 conclude	 that	 the	 court	 erred,	we	 vacate	 the	 court’s	

award	of	past	child	support	and	remand	for	further	proceedings.	

1		Here,	 there	was	evidence	in	 the	record	concerning	 the	past-support	period:	 the	parties	 filed	

multiple	child	support	affidavits	reflecting	their	incomes	and	child	care	costs at	various	times, and	

testimony	during	the	hearing	touched	on	the	parties’	incomes	and	child	care	costs during	those	times.		

2 We	recognize	that	this	process	may	result	in	multiple	calculations	and	child	support	orders	for	

differing	periods,	particularly	in	a	case	such	as	this	where	the	parties’	incomes	fluctuated	over	several	

years	of	pre-judgment	separation.
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[¶17]		While	considering the	past-support	period on	remand,	the	court	

should determine	 whether	 the	 substantially-equal-care	 calculation is	

applicable	and	whether	any downward	deviation is	warranted.		See,	e.g., Pratt v.	

Sidney,	 2009	 ME	 28,	 ¶ 11,	 967	 A.2d	 685 (specifying	 that	 a	

substantially-equal-care	 determination	 requires	 a	 detailed	 inquiry	 into	 an	

array	 of	 factors);	Nicholson,	2000	ME	 12,	¶ 9,	 747	A.2d	 588 (explaining	 that	

“[t]he	 party	 seeking	 to	 have	 the	 court	 deviate	 from	 the	 guidelines	 has	 the	

burden	 to	 overcome	 the	 presumption”	 that	 the	 obligation	 derived	 from	 the	

guidelines	is	the	proper	amount).	The	court	must also	account	for	Guber’s $800	

payment	toward	 child	 support.	 	See	Bloom,	 2021	ME	 59,	¶ 11,	 263	A.3d	 491	

(demonstrating	that	courts	must	account	for	any	payments	that	a	party	already	

made	toward	child	support	when	determining	the	amount	of	support	owed	at	

the	 time	 the	court	enters	its	judgment);	see	also	Nadeau	v.	Nadeau,	2008 ME	

147,	¶	57,	957	A.2d	108.

B. Guber’s	Future Child	Support Obligation

[¶18]		The	child	support	statute	requires courts	to	add	child	care	costs	to	

the	basic	support	entitlement	to	determine	the	total	basic	support	obligation.		

19-A	M.R.S.	§ 2006(3).		Here,	the	undisputed	evidence	was that	Guber	had $80	

in	weekly	child	care	costs.		The	court’s	award	of	future child	support,	however,	
11

excluded Guber’s	child	care	costs	from	the child	support	worksheet	and	order.		

Although	there	may	be	reasons	why	the	court	chose	to	exclude	Guber’s	child	

care	costs,	this	exclusion was	not	supported	by	the	court’s	express	findings.	 See	

Ehret, 2016 ME 43, ¶ 9, 135 A.3d 101 (indicating	that	the	“court	must	ensure	

that	 the	judgment	is	supported	by	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”).		

[¶19]	 	Because	we cannot infer why the court dispensed with Guber’s

child care costs, we vacate the court’s child support order and remand so that

the court can correct its factual error or make further findings of fact and

conclusions of law supporting the exclusion of Guber’s claimed child care costs.		

The	entry	is:

Judgment	as	to	child	support	vacated.		Judgment	

affirmed	 in	 all	 other	 respects.	 	 Remanded	 for	

further	proceedings	consistent	with	this	opinion.	

Laura	P.	Shaw,	Esq.,	Dirigo Law	Group	LLP,	Camden,	for	appellant	Jacob	I.	Guber

Rosemarie	Giosia,	Esq.,	Ellsworth,	for	appellee	Bonnie	J.	McCarthy

Ellsworth	District	Court	docket	number	FM-2019-260

FOR	CLERK	REFERENCE	ONLY