MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 7 ME 101 Docket: Pen

- 16

- 443 Submitted

on	Briefs : April	27,	2017 Decided: May	23,	2017 Panel: SAUFLEY,	C.J.,	and ALEXANDER , MEAD, GORMAN , JABAR , HJELM, and HUMPHREY, JJ.

NIC K Y	PYLE

v. ROBERT	PYLE

JABAR ,	J. [¶1] Robert	Pyle	appeals	from	a	judgment	of	the	District	Court	(Bangor,
Larson ,	 J. )	 awarding child	 support	 and primary	 residence	 of the	 parties’ children	to	his former	spouse ,	Nicky	Pyle. Robert	contends	on	appeal	that	the court	erred	in	two	ways:	f irst,	by	awarding	primary	residence of	the	children to	 Nicky ,	 and	 second,	 by	 incorrectly	 calculating	 Ro bert’s	 child	 support obligation .		We	dis agree	w ith	his	first	contention and	therefore	affirm	in	part, but	agree	that	the	court	committed	clear	error	in	its	factual	findings	regarding the	 calculation	 of Robert’s	 obligation	 to	 pay	 for	 the	 children’s	 health insurance, and we vacate	 that	 portion	 of	 the	jud gment	 related	 to	 the health insurance	component	of	Robert’s	child	support	obligation

.2 I.		BACKGROUND [¶ 2 ] The	 following	 factual	 findings are	 supported	 by	 the	 record. See Robertson	v.	Gerakaris ,	2015	ME	83,	¶	2,	119	A.3d	739

. Nicky	and	Robert	Pyle

were married	on	September	5,	2003. They	have	two	children,	aged	7	and	11

. Nicky	 has	 worked for	 sixteen	 years as	 a	 computed	 tomography scan technician. Rob ert is	 employed	 as	 a scrub	 technician and,	 for about three years,	has also operated	a	landscaping	business. [¶ 3 ] In	 December	 2015,	 Nicky	 filed	 for	 divorce,	 citing	 irreconcilable differences. She	and	Rob ert agreed	 to and	 the	court	 ( Campbell,	J. )	entered a stipulated	 interim	 order,	 which	 established	 that	 the	 children	 would	 re side primarily	with	Nicky,	 that	Nicky	and	Rob ert would	share	parental	rights	and responsibilities,	 and	 that	 Rob ert would	 pay	 $212.23 as child	 support	 and $98.60 as interim	 spousal	 support	 each	 week.	 	 Rob ert filed	 an	 answer	 and counterclaimed	for	divorce	in January	2016. A	mediation	held on February	4,
2016 , failed	to	resolve	all of	the issues	between	the	parties. [¶ 4 ] After a	hearing	on	 June	29,	2016 , the	court ( Larson,	J. )	entered	a divorce	judgment

. The	court	found	that	Nicky	has	been	the	primary	caretaker of	the	children,	and that	she	has	been primarily	responsible	for	provi ding for their	basic	needs,	such	as feeding,	bathing,	religious	education,	arranging	and3 attending	 healthcare	 appointments,	 and arrangi ng	 and	 attending parent
- teacher conferences. The	 court	 found	 that	 Nicky	 “is	 far	 more	 aware and	 involved”	 in	 the	 older	 child’s	 special	 needs,	 including	 extensive	 health issues	 related	 to	 allergies,	 and	 mental	 health	 concerns	 stemming	 from	 his
anxiet y	about	his	allergies. The	court	emphasized	that	Robert’s	two	jobs	“will make	it	difficult	for	him	to	share	equally	in	caring	for	the	children.”		Therefore, after	considering	the “ best	interest ”	standard pursuant	to 19

- A M.R.S.	§	1653 (2016) ,	 the	 court	 co ncluded	 that	 the	 contact	 schedule already	 in	 place had been	working	well and that primary	residence	should	remain	with	Nicky

. [¶ 5 ] The	 divorce	 judgment	 also	 inc orporated	 a	 child	 support	 order requiring	 that	 Rob ert pay	 $475.36	 each	 week	 in	 child	 support, including $61.36	weekly	 for	 health	insurance. The	 court	 found	 that	Robert’s financial disclosures, which	 were based on	 his	 2015	 tax	 returns,	 had	 understated income	 from	his	landscaping	business,	and	 thus	calculated	 the	child	support payments	 on	 the	 basis of	 income	 extrapolated	 from	 deposits to Robert’s business	bank	account rather than	the	income	shown	on his	tax	return. [¶ 6 ] Rob ert now timely	 appeals	 the	 court’s judgment

. See M.R. App. P. 2(b)(3)

.4 II.		DISCUSSION
A. Primary	Residence [¶ 7 ] Robert contends	 that	 the	 court	 erred	 in	 finding	 that	 Nicky	 had been	 primarily	 responsible	 for all	 basic	 needs	 of	 the	 children and	 therefore abused	its	 discretion	in	awarding	 her	primary	 custody.	 	 In	an	appeal	 from	a divorce	judgment	establishing	parental	rights and	responsibilities,	we	review

a court’s	f actual	findings	for	clear	error and	its	ultimate	conclusion	regarding the	 child’s	 best	 interest for	 an abuse	 of	 discretion. See Smith	 v.	 Padolko , 2008 ME	56,	¶¶	9,	14,	955	A.2d	740

. The trial	court’s	judgment is	entitled	to substantial	deference	because	the trial court “is	in	a	superior	position	to	judge the	 credibility	 of	 the	witnesses.” Id. ¶ 14. Despite	 Robert’s	 contentions,	we discern	no	error	in	the	court’s	factual	findings	and	no	abuse	of	discretion	in its award	of	primary	custody	to	Nicky. [¶ 8 ] At	 the	 June	 29	 hearing,	 Nicky	 testified	 that	 she	 arranged	 and attended	all	doctors’	appointments	for	the	children,	and	that	she	was	the	only parent	 to	 attend	 counseling	 sessions	 for	 the	 older	 child	 to	 address mental health	 concerns	 surrounding	 his	 severe	allergies. She	and	Robert	 disagreed about	who	 had	 picked	 the	 children	 up	more	 from	 school,	 but	Nicky	 testified and	 Robert	 did	 not	 dispute	 that	 she	 had	 done	 most	 of	 the	 cooking. Nicky5 acknowledged	that	Robert had	consistently	attended	spo rts	practices	with	the children, but both	Robert	and	Nicky	testified	that	his	two	jobs	kept	him	away from	home	on	nights	and	weekends	in	the	summer.		This	testimony	supports the	 court’s	 findings	 of	 fact,	 including	 that	 Nicky	 “h as	 been	 the	 primary caretaker	of	the	minor	children.” [¶ 9 ] In	 addition,	 the	 court	 stated	 that	 it	 “carefully	 considered	 the evidence	presented	at	 trial	in	conjunction	with	all	of	 the	 factors	comprising” the “ best	interest ” standard. See 19

- A	M.R.S.	 §	 16 53(3). Although	 the	 court did	not	specify	which “ best	interest ” factors	upon	which	it	based	its	decision, the	 court’s	 findings	 of	 fact	 imply	 reliance	 on	 particular	 factors,	 such	 as	 the children’s	 relationship	 with	 their	 parents,	 the	 duration	 and	 adequacy of current	 living	 arrangements,	 the	 stability	 of	 proposed	 living	 arrangements, and the	 capacity	 of	 each	 parent	 to	 allow	 frequent	 and	 continuing	 contact between	the	children	and	the	other	parent,	amon g	other	factors.		19

- A	M.R.S. § 1653(3)(B),	 (D),	 (E),	 (H) ,	 (N).	 	 The	 court	 also	 found that	 Robert	 lacked credibility; it	 believed	 he	 was seeking to	 obtain	 primary	 residence	 of	 the children	so	that	he	could exaggerate	his	financial	hardships	and thereby avoid child	 support	 payments.	 	 The	 court	 therefore	 did	 not	 a buse	its	 discretion	in6 awarding	 primary	 res idence	 of	 the	 children	 to	 Nicky,	 and	 we	 affirm	 that portion	of	the	court’s	order.
B. Child	Support [¶1 0 ] Robert next contends	that	the	court	erred	in	calculating his	child support	 obligation by (1)	 incorrectly	 ca lculating	 the	 gross	 income	 from	 his landscaping	 business and (2) incorporating	 a	 health	insurance	 expense	 that

was	 not supported	 by	 evidence in	 the	 record. We review	 the	 trial	 court’s award	 of	 child	 sup port	 for	 an	 abuse	 of	 discretion	 and	 the	 factual	 findi ngs underlying the	 award	 for	 clear	 error. Foley	 v.	 Ziegler ,	 2007	 ME	 127,	 ¶	 8,
931 A.2d	498

. 1. Income	Calculation [¶1 1 ] The	 trial	 court	 must	 assess	 both	 parties’	 gross	 incomes	 when calculating	a	child	support	entitlement. 19

- A	M.R.S.	§	2006(1)	(2016)

. “Gross income	 includes	 income	 from	 an	 ongoing	 source,	 including	 .	 .	 .	 wages	 [and]
commissions

.	 .	 . .” 19

- A	M.R.S. § 2001(5)(A) (2016) .	 	To	arrive	at	 the	gross income	 for	 a	 child	 support	 order	 when	 a	 party	 is	 self

- employed,	 the	 court calculates	 “gross	 rec eipts	 minus	 ordinary	 and	 necessary	 expenses.” Id. § 2001(5)(C) (2016)

.7 [¶1 2 ] Although	 Robert’s	 2015	 tax	 return	listed	 gross	 receipts	 of only $11, 764 by his	 business,	 at	 trial he	 admitted	 that	 the	 bank	 account	 he	 uses solely	for	the	business	showed	tota l	deposits	of	$18,538.48	be tween	May	and October	 of	 2015. Robert	 acknowledged	 that	 the	 deposits	 to	 that	 account constituted	 the	 gros s	 receipts	 of his	 business. His	 testimony	 supports	 the court’s	finding	that	Robert’s	tax	return	misrepresented	the	earning s	from	his landscaping business,	and	its	finding	that his	gross	income from	the	business for	child	support	calculation	purposes

— gross	receipts	less	business	expenses indicated	 by	 the	 tax	 return

— was	 in	 fact	 close	 to	 $12,000,	 rather	 than the $6,615	as	he	had represented. The	court	therefore	did	not commit	clear	error or	an	abuse	of discretion	in	calculating	Robert’s	gross	income.
2. Health	Insurance	Cost [¶1 3 ] The child	 support	 obl igation	 that the	 court calculated included $30.68	per	child	per	week	for health	insurance	payments,	for	a	total	of	$61.36 per	week for	 health	insurance

. These	amounts	are	identical	 to	 the	amounts advanced in	 Nicky’s	 proposed	 child	 support	 order,	 but	 do	 not	 match	 the amounts	 described	 in the	 evidence,	 including Nicky’s	 financia l	 or	 child support	disclosures,	or	shown	on	her	paystubs. Nicky’s	child	support	affidavit8 listed	a	cost	of	$43.71	weekly, whereas	her	paystub	indicated that $69.69	was withheld	from	her	biweekly	paycheck	for	health	insurance	coverage

. [¶1 4 ] At	 the	 hear ing,	 Nicky	 could	 not	 recall	 whether	 the	 money deducted	 from	 her	 biweekly	 pay	 for	 health	insurance	included	 coverage	 for both	 her	 and	 the	 children,	 and	 if	 so,	 what	 portion	 of	 it	 represented	 the childre n’s	health	insurance	coverage. Following	the	hearing,	t he	court	asked Nicky	to	provide	clearer	evidence	of	the	amount	she	pays	for	he alth	insurance for	 the	 children, but the	 record	is	 unclear	 as	 to	whether	 she	 did	 so	 prior	 to submitting	the	proposed	child	support	order. [¶1 5 ] The	 court’s	 inclusion	 of	 $30.68 per	 child	 per	 week	 for	 health insurance	 costs	in	 Robert’s	 child	 support	 obligation is	 not	 supported	 by the testimony	 presented	 at	 the	 hearing	 or	 the	 parties’	 financial	 disclosures	 and affidavits.		It	is	unclear how the	court calculated this	figure.		We	the refore	hold that	 the	 court’s	 inclusion	 for	 the	 children’s	 health	 insurance	 coverage	 of $61.36	 per	week,	 or	 $30.68	 per	 child	 per	week,	without	additional	evidence supporting	that	sum,	was	clear	error. The	entry	is: Judgment vacated	 as	 to	 the	 child	 support obligation,	 and	 affirmed	 in	 all	 other	 respects. The	case	is	remanded	for	the	court	to	determine9 the	correct	amount	of	Robert’s	obligation	to	pay the	children’s	health	insurance	costs.

Zachary	Brandmeir,	Esq.,	Bangor,	for	appellant	Robert	Pyle Anthony	 A.	 Trask,	 Esq.,	 and	 Kristy	 M.	 Hapworth,	 Esq.,	 Rudman	 Winchell, Bangor,	for	appellee	Nicky	Pyle

Bangor	District	Court	docket	number	FM

- 2015

- 614 F OR C LERK R EFERENCE O NLY