MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017 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.

NICKY	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:	first,	by	awarding	primary	residence of	the	children

to	 Nicky,	 and	 second,	 by	 incorrectly	 calculating	 Robert’s	 child	 support	

obligation.		We	disagree	with	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	judgment	 related	 to	 the	health	

insurance	component	of	Robert’s	child	support	obligation.		
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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.	 Robert 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	Robert agreed	 to and	 the	court	 (Campbell,	J.)	entered a	

stipulated	 interim	 order,	 which	 established	 that	 the	 children	 would	 reside	

primarily	with	Nicky,	 that	Nicky	and	Robert would	share	parental	rights	and	

responsibilities,	 and	 that	 Robert would	 pay	 $212.23	 as child	 support	 and	

$98.60	 as interim	 spousal	 support	 each	 week.	 	 Robert 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	providing	for	

their	basic	needs,	such	as feeding,	bathing,	religious	education,	arranging	and	
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attending	 healthcare	 appointments,	 and	 arranging	 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	

anxiety	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	 concluded	 that	 the	 contact	 schedule	 already	 in	 place had	

been	working	well and that primary	residence	should	remain	with	Nicky.		

[¶5]	 	 The	 divorce	 judgment	 also	 incorporated	 a	 child	 support	 order

requiring	 that	 Robert 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]	 	 Robert now	 timely	 appeals	 the	 court’s	 judgment.	 	 See M.R.	

App. P. 2(b)(3).
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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	factual	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.	 Nicky	
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acknowledged	that	Robert	had	consistently	attended	sports	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	 “has	 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.	 §	 1653(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,	among	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	 abuse	its	 discretion	in	
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awarding	 primary	 residence	 of	 the	 children	 to	 Nicky,	 and	 we	 affirm	 that	

portion	of	the	court’s	order.

B. Child	Support

[¶10]		Robert	next	contends	that	the	court	erred	in	calculating his	child	

support	 obligation by	(1)	 incorrectly	 calculating	 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	 support	 for	 an	 abuse	 of	 discretion	 and	 the	 factual	 findings	

underlying the	 award	 for	 clear	 error.	 	 Foley	 v.	 Ziegler,	 2007	 ME	 127,	 ¶	 8,	

931 A.2d	498.

1. Income	Calculation

[¶11]	 	 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	 receipts	 minus	 ordinary	 and	 necessary	 expenses.”	 	 Id.	

§ 2001(5)(C) (2016).	
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[¶12]	 	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	total	deposits	of	$18,538.48	between	May	and	

October	 of	 2015.	 	 Robert	 acknowledged	 that	 the	 deposits	 to	 that	 account	

constituted	 the	 gross	 receipts	 of his	 business.	 His	 testimony	 supports	 the	

court’s	finding	that	Robert’s	tax	return	misrepresented	the	earnings	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

[¶13]	 	The child	 support	 obligation	 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	 financial	 or	 child	

support	disclosures,	or	shown	on	her	paystubs.		Nicky’s	child	support	affidavit	
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listed	a	cost	of	$43.71	weekly,	whereas	her	paystub	indicated that $69.69	was	

withheld	from	her	biweekly	paycheck	for	health	insurance	coverage.

[¶14]	 	 At	 the	 hearing,	 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	

children’s	health	insurance	coverage.		Following	the	hearing,	the	court	asked	

Nicky	to	provide	clearer	evidence	of	the	amount	she	pays	for	health	insurance	

for	 the	 children, but the	 record	is	 unclear	 as	 to	whether	 she	 did	 so	 prior	 to	

submitting	the	proposed	child	support	order.

[¶15]	 	 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	therefore	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	determine	
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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

FOR	CLERK	REFERENCE	ONLY