MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 20 ME 132 Docket: Pen

- 20

- 3 Argued : September 17,	2020 Decided: November 10 ,	2020 Panel: GORMAN,	JABAR , HUMPHREY,	HORTON , and CONNORS , JJ.

FRANCES QUIRK

v. JOHN	E.	QUIRK S R

.

CONNORS ,	J. [¶1] Forty	years	is	a	long	time .		B ut	because	a	successful	laches	defense requires	more	 than	 delay	 alone,	 and because the	 factual	 findings	 of	 the	 trial court	rejecting	the	defense in	this	matter are	supported	by	competent	evidence , we	 affirm the judgment	 of	 the	District	Court	 (Bangor, Jordan,	J. ) which,	with interest	and	attorney	fees,	approaches	$400,000

. I. BACKGROUND [¶ 2 ] In	October	2018, Frances Quirk filed	a	motion	to	enforce her	divorce judgment	dated	January 8, 1973, alleging	that her	ex

- husband, John	E.	Quirk , 1 was	obligated	 to	pay	her	 forty

- five	dollars	per	week	in	spousal	support

. She

1 John	is	sometimes	referred	to	as	John	E.	Quirk	Sr.	in	the	record,	but	his	briefs	and	pleadings	in the	trial	court	do	not	use	the	suffix	and	there	was	testimony	that	he	and	his	son	do	not	actually	share the	same	name.2 alleged that	he	had made no	payment since	at	least	January	1,	1977,	and	that	he owed	her	$97,875	plus	interest. 2 John	opposed	the	motion	and	filed	an	answer

assert ing affirmative	defenses,	including	laches. He	subsequently filed	a	motion to	modify	his	spousal	support	obligation and , b y	later	amendment,	clarified	that he	was	asking	the	court	to	terminate	spousal	support	and	any	obligation	he	had pursuant	 to	 the	 1973	 judgment	 to	 provide	 health	 insurance	 for	 Frances. Frances	also	filed	a	motion	to	modify,	seeking	an	increase	in	spo usal	support from	forty

- five	dollars	to	three hundred	dollars	per	week. [¶ 3 ] Discovery	disputes	ensued

. In	March	2019,	 John sought	 to	avoid having	 his	 deposition	 taken,	 stating that he	 had	 recently	 undergone	 an evaluation	 with	 a	 neuropsychologist	 who	 con cluded	 that	 he	 “suffers	 from dementia	 and	 is	 not	 someone	 who	 could	 competently	 provide	 information within	 the	 context	 of	 an	 oral	 deposition.”	 	 Nevertheless,	 he	 noted	 that	 the neuropsychologist	believed	that	he	retained	“sufficient	cognitive	capacity	.

. . to work	 with	 counsel	 to	 provide	 reliable	 information	 in	 written	 form.”	 	 After

2 Although	the	1973	judgment	was	nev er	admitted	in	evidence,	the	transcript	suggests	that	the court	took	judicial	notice	of	the	document	and	neither	party	contests	its	validity	on	appeal.		Because the	 1973	 judgment	was	 entered	 in	 the	 Superior	 Court	 (Penobscot	 County, MacInnes, J. ) , Frances o riginally	filed	her	motion	to	enforce	in	that	court;	the	matter	was	subsequently	transferred	to	the District	Court	by	agreement	of	the	parties.		Additionally,	although	the	court	did	not	make	any	findings on	the	parties’	ages	or	marriage,	the	parties	agree

— and	the	record	supports

— that	Frances	and	John were	both	born	in	1931	and	they	were	married	on	September	27,	1952.3 holding	a	conference	with	the	parties,	the	court	ordered	the	deposition	“to	go forward	as	scheduled.” [¶ 4 ] John subsequently filed	 a	 motion	 for	 protective	 discovery	 order , reiterating	his	request	that	he	not	be	compelled	to	“sit	for	a	video

- taped	oral deposition”	due	to	his	alleged	cognitive	difficulties. See M.R.	Civ.	P.	26(c).		He noted	that	he	was	“not	seeking	an	order	prohibiting	.	.	.	any	form	of	discovery,” but	 expres sed	 concern	 that	 his	 counsel	 would	 not	 “have	 the	 ability	 to	 stop questions	 on	 the	 grounds	 of	 relevance.”	 	 Once	 again,	 the	 court	 ordered	 the deposition	 to	 “proceed	 as	 scheduled”	 and	 noted	 that	 “[c]oncern	 about controlling	 a	 witness	 and	 preventing	 the	 genera ting	 of	 evidence	 which	 may have	collateral	application	are	not	proper	grounds	for	blocking	a	deposition.” [¶ 5 ] Finally,	i n	April	2019,	 Frances	 sought	 the	court’s assistance with respect	 to a	 third	 discovery	 dispute.	 	 She	 asserted	 that	 John’s	 counsel	 had

o bjected	to	John	answering	any	questions	during	his	deposition	about	his	past or	 present	 activities	 on	 the	 grounds	 that	 such	 questions	 would	 not	 lead	 to relevant	 evidence.	 	 The	 docket	 reflects	 that	 the	 court	 held	 a	 conference regarding	the	dispute,	but	ther e	is	no	record	of	the	result	of	that	conference. [¶ 6 ] A	hearing	on	Frances’s	and	John’s	motions	was	eventually	held	on September	 24,	 2019.	 	 The	 court	 heard	 testimony	 from	 several	 witnesses,4 including	 the	 parties,	 some	 of	 their	 children,	 John’s	 current	 wif e,	 and	 the neuropsychologist	who	had	evaluated	John.		After	receiving	post

- trial	briefing and	 proposed	 judgments,	 the	 court	 entered	 a	 judgment	 granting	 Frances’s motion	 to	 enforce,	 granting	 John’s	 motion	 to	 modify,	 and	 denying	 Frances’s motion	to	modify. [ ¶ 7 ] In	its	judgment,	the	court	found	that	John	had	not	made	payments since	 at	 least	 January	 1,	 1977,	 that	 Frances	 had	 not	 pursued	 the	 payments because	 of	 John’s	 “abusive,	 demeaning,	 and	 threatening”	 behavior,	 and	 that John	had	 not	been	 prejudiced	by	Franc es’s	delay	in	 enforcing	 the	 obligation. The	 court	 found	 Frances’s	 calculation	 of	 the	 amount	 of	 spousal	 support	 and interest	 persuasive	 and	 awarded	 her	 $367,590.	 	 It	 also	 awarded	 Frances $18,029.74	in	attorney	 fees	based	 on	its	 findings	 that	 John’s	 “pretri al	 tactics significantly	added	to	the	cost	of”	the	litigation	and	that	he	had	a	“far	greater ability	to	absorb	the	costs	of	the	litigation.”		The	court	did,	however,	grant	John’s motion	 to	 modify	 by	 terminating	 his	 spousal	 support	 obligation	 and	 his obliga tion	to	provide	health	insurance	to	Frances , and den ied Frances’s motion to	modify	on	the	basis	that	“it	would	be	unfair	to	order	an	increase	in	spousal support	given	the	parties’	advanced	ages	and	the	length	of	time	of	the	spousal support	award.”5 [¶ 8 ] J ohn	filed	a	motion	for	further	findings,	which	the	court	summarily denied. See M.R.	 Civ.	 P.	 52(b).	 	 John	 then	 filed	 this	 appeal. See M.R.	 App.	 P. 2B(c)(2).
II. DISCUSSION [¶ 9 ] John asserts	the	following	four	arguments	to	attack	the	judgment : (A)	his	la ches defense should	have	prevailed;	(B)	t he	trial	court should	not	have awarded	 the	 full	amount	of	post

- judgment	interest	 to	Frances ;	 (C) there was insufficient	 evidence	 to	 overcome	 the	 statutory	 presumption	 set	 forth	 in
14 M.R.S. § 864	(2020)	that	all	jud gments	are	satisfied	after	20	years	after	any duty	or	obligations	are	accrued	by	way	of	the	judgment ;	and	(D) Frances should not	have	been	awarded all	of	her	attorney	fees.
A. Laches [¶1 0 ] John	contends that Frances inexplicably failed	to	assert	her	rights for	an	unreasonable amount	 of time	 and	 that	he	has	been	prejudiced	by	her delay	 because	 he	 has	 been	 diagnosed	with	 dementia	 and	 “no	longer	 has	 the ability	to	provide	testimony	or	work	with	his	attorney	to	prepare	a	defense	in

a meaningful	way.” [¶1 1 ] The	 affirmative	 defense	 of	 l aches	 applies	 when	 a	 party	 (1)	 has failed	 to	 assert	 a	 right	 for	 an	 unexplained	 and	 unreasonable	 length	 of	 time6 (2) under	 circumstances	 that	 have	 been	 prejudicial	 to	 an	 adverse	 party and (3) it	 would	 be	 inequitable	 to	 enforce	 the	 right. See Brochu	 v.	 McLeod , 2016 ME 146,	 ¶	 13,	 148	 A.3d	 1220 .	 	 In	 the	 context	 of	 spousal	 support arrearages,	“the	doctrine	of	laches	may	be	applied	to	both	the	principal	sum	and any	 interest	 that	 has	 accrued	 thereon .” Id. ¶	 24. The	 party	 asserting	 the affirmative	defense	bears	 the	burden	 of	proof. See ABN	AMRO	Mortg.	Grp

. v. Willis ,	2003	ME	98,	¶	5,	829 A.2d	527 .		We review the court’s	factual	findings for	clear	error	and	 the	question of whether	laches	bars	a	clai m	de	novo. See Hawksley	 v.	 Gerow ,	 2011 ME 3,	 ¶¶	 4

- 5,	 10	 A.3d	 715 ; see	 also Glew	 v.	 Glew , 1999 ME 114,	 ¶	 13,	 734 A.2d 676 (“Whether	 laches	 applies	 in	 a	 given circumstance	is	a	question	of	law.”)

. [¶1 2 ] Critically, “[l]aches	cannot	be	predicated	on	passage	of	time	alone .” Tewksbury	v.	Noyes ,	138	Me.	127,	135,	23	A.2d	204	(1941) (quotation	marks omitted) ; see	 also Schneider	 v.	 Dep’t	 of	 Hu m. Servs. ,	 617	 A.2d	 211,	 212 (Me. 1992) (citing Tewksbury for	 this	 proposition)

. Rather,	 to	meet	 the	 first element,	 the	 delay	 must	 be	 unreasonable	 and	 unexplained. See Brochu , 2016 ME	146,	¶¶ 29

- 35,	148 A.3d 1220	(holding	that	a	thirty

- five

- year	delay	in seeking	 spousal	 support	 was	 insufficient,	 absent	 a	 showing	 of	 prejudice,	 to ju stify	the	application	of	the	doctrine	of	laches).7 [¶1 3 ] As to	 the	 first	element , John	contends	 that	 the	court	committed clear	 error	 when	 it	 found	 that	 Frances	 “did	 not	 force	 the	 issue	 of	 spousal support	 due	 to	 [John’s]	 abusive,	 demeaning,	 and	 threatening behavior.” Contrary	to	John’s	argument,	the	record	amply	supports	the	court’s	finding. [¶1 4 ] Frances	testified	that	she	did	not	press	the	issue	of	spousal	support because	she	was	afraid	that	John	would	burst	into	her	house	and	beat	her,	that John	 had	 be aten	 her	 during	 their	marriage	 “quite	 a	 few	 times,”	 and	 that	 she finally felt	safer	now	that	she	lived	f a rther	away	from	him	in	a	secure	retirement home.	 	 One	 of	 the	 parties’	 sons	 testified	 that	 John	 had	 “slap[ped]	 Frances around	 and	 call[ed]	 her	 stupid”	 a nd	 that	 Frances	was	 “very	 scared”	 of	 John. Another	son	testified	that	John	had	“grabbed”	Frances	during	an	argument	and that	she	was	fearful	of	him. [¶1 5 ] Although	 Frances	 testified	 that	 she	 had	 received	 some	 “bad information”	 from	a	lawyer	who	 told	her not	 to	pursue	spousal	support,	was told	by	another	lawyer	to	wait	until	John	died	to	sue	his	estate	so	that	she	would not	have	to	confront	him,	and,	at	one	time,	did	not	have	the	money	to	take	John to	court,	she	was	clear	 that	her	primary	reason	 for	not	e nforcing	 the	spousal support	was her	fear of	John	based	on	his	past	conduct. E ven	if	her	testimony about her attorneys could	be	 deemed inconsistent	with	her	 testimony	 about8 being	scared	of	John,	it	cannot	be	said	that	the	evidence	compelled	the	court	to
f

ind	differently	than	it	did “because	the	court,	as	fact

- finder	and	sole	arbiter	of witness	 credibility,	 was	 free	 to	 selectively	 accept	 or	 reject	 portions”	 of Frances’s	testimony

. Efstathiou	v.	Efstathiou ,	2009 ME 107,	¶	12,	982	A.2d	339

. [¶1 6 ] Because	the	court	did	not	clearly	err	when	it	found	that	Frances’s delay	was	 the	 result	 of her	 supported	 fear	 of	 John’s	 violent	 behavior ,	 John’s laches	 defense	 fails	 at	 the	 first	 element. See Glew ,	 1999	 ME	 114,	 ¶	 14,
734 A.2d 676 (noting	that	when	a	delay is	caused	by	the	opposing	party,	it	is not	“unexplained	or	unreasonable”	and	a	laches	defense	therefore	fails). [¶1 7 ] Moreover,	even	if	John’s	conduct	was	only	partially	responsible	for Frances’s	delay,	he	still	would	not	be	entitled	 to	invoke	 the	defens e	of	laches because	“[w]hen	both	parties	are	at	fault, neither	can	assert	laches	against	each other.” Fisco	v.	Dep’t	of	Hum

. Servs. ,	659 A.2d 274,	276	(Me.	1995) (quotation marks	omitted); see Haw ks ley ,	2011 ME 3,	¶	5,	10	A.3d	715 (citing Fisco for	this proposition	in	a	case	involving	a	motion	to	enforce	a	divorce	judgment); see	also
Conners	v.	Conners	Bros.	Co. ,	110	Me.	428,	434,	86	A.	843	(1913) (reiterating	the fundamental	maxim	of	equity	that	one	“who	comes	into	a	court	of	equity	must

come	w ith	clean	hands”).9 [¶1 8 ] Because John’s	laches	defense	fails	at	the	first	element	and each	of the	three	elements	must	be	met,	we	need	go	no	further. That	said,	with	respect to	John’s	argument	that	he	was	prejudiced	by	Frances’s	delay	because	he	is	now

s uffering	from	an	impaired	memory	caused	by	dementia, John	never	sought	a specific	finding regarding	his	competency ,	even	in	his	motion	for	additional	and amended	findings	pursuant	to	Rule	52(b); never	claimed to	the	court	that he was	 incompetent;	 and,	 as noted	 above,	 while	 showing	 antipathy	 to	 a	 live deposition,	 asserted	 an	 ability	 to	 answer	 written	 questions. N othing	 in	 the record	indicates,	and	there	seems	little , if	any , dispute	that	John	in	fact	never paid	 support starting	 at	 least	 in	 1977

. Rather, J ohn	 asserted that ,	 at	 some undefined	 time, he	 and	 Frances	 had	 made a	 vague, unwritten , and counterintuitive	agreement where , instead	of	paying	spousal	support , he would find	some	sort	of	job	for each	of his	sons	at	some	point years	in	the	future

— testimony from	John that the	trial	court	reasonably	found	not	credible. There was	no	evidence	of	any other detrimental	reliance by	John ,	inability	to	pay, or other	 excuse	 for him not	 to	 have	 complied	 with	 the	 terms	 of	 his	 divorce judgment.10 B. Post

- Judgment	Interest [¶1 9 ] John	argues	that	the	court	abused	its	discretion	by	awarding	the full	amount	of	post

- judgment	interest	to	Frances.		He	contends	that	the	court should	have	exercised	its	discretion	to	waive	“some,	or	all,	of	the	post	judgment interest”	for	“good	ca use.” See 14	M.R.S.	1602

- C(2)	(2020) (“ On	petition	of	the nonprevailing	party	and	on	a	showing	of	good	cause,	the	trial	court	may	order that	interest	awarded	by	this	section	be	fully	or	partially	waived. ”)

. John never filed	such	a	petition ,	however

. He mere ly asked	the	court	to	determine	that	the interest	 was	 barred	 by	 laches	 and	 sought	 further	 findings	 on	 why	 the	 court determined that “it	 would	 be	 just	 to	 impose	 $267,339.00	 of	 interest	 on	 a judgment	of	$100,260.” [¶ 20 ] Although we	 have suggested	 that	 there	 is	 some	 connection between	 the	 court’s	 discretion	 to	 waive	 interest	 for	 good	 cause	 pursuant	 to
section 1602

- C(2)	and	the	application	of	laches	to	post

- judgment	interest, see Brochu ,	 2016	 ME	 146,	 ¶¶	 23

- 24,	 148	 A.3d	 1220,	 and we h ave li berally construed what	constitutes	a	“petition”	within	the	meaning	of	th e statute, see Austin v.	 Austin ,	 2000 ME 61,	 ¶¶	 9

- 10,	 748	 A.2d	 996	 (holding	 that	 a	 party’s written	argument	to	the	trial	court	asking	not	to	be	“penalize[d]”	for	the	other party’s	 dela y	 was	 sufficient	 to	 satisfy	 the	 petition	 requirement	 of11 section 1602

- C(2)	even	if	it	was	not	“lucidly”	worded),	John’s	arguments	to	the court	regarding	interest	were	based	solely	on	his	laches	defense.		Because	the court	did	not	err	in	rejecting this defen se, we conclude	that	the	court	did	not abuse	its	discretion	in	awarding	the	full	amount	of	interest. 3
C. Statutory	Presumption	of	Satisfaction [¶ 21 ] John	argues	that	Frances’s	testimony	that	he	has	not	paid	her	any spousal	 support	 since	 1977	 was insufficient	 to	 overcome	 the	 statutory presumption that “ [e] very	judgment	.	.	.	of	any	court	.	.	.	is	presumed	to	be	paid and	 satisfied	 at	 the	end	 of	20	 years	after	any	 duty	 or	 obligations	 accrued	by virtue	of	such	judgment	.	.	.	.” 14	M.R.S.	§	864. He c ontends	that	“it	is	not	enough for	an	individual	under	 these	circumstances	 to	simply	 testify	 that	 the	debt	is still	owed	without	anything	more.”

3 In	addition	to	his	“good	cause”	argument,	John	also	briefly	argues	that	“Frances	did	not	provide the	court	with	adequate	documentation	of	the	correct	amount	of	post

- judgment	interest,”	and	“[a]s such,	post

- judgment	interest	is	not	permitted.”		Frances	di d	provide	the	court	with	legal	authorities and	a	schedule	 from	the	 Judicial	Branch	website	to	support	the	applicable	post

- judgment	interest rates	used	in	her	interest	calculation.		Because	John	has	“neither	supplied	argument	nor	suggested	a rationale	in	su pport”	of	his	position	that	those	sources	were	inadequate, we decline	to	address	the issue	any	further. Me h lhorn	v.	Derby ,	2006 ME 110,	¶	11,	905 A.2d	290 (“An	issue	barely	mentioned in	 a	 brief	 is	 in	 the	 same	 category	 as	 an	 issue	 not	 mentioned	 at	 all.”); United	 States	 v.	 Zannino , 895 F.2d 1,	17	(1st	Cir.	1990) (“It	is	not	enough	merely	to	mention	a	possible	argument	in	the	most skeletal	way,	leaving	the	court	to	do	counsel’s	work,	create	the	ossature	for	the	argument,	and	put flesh	on	its	bones	.	.	.	. A litigant	has	an	obligation	to	spell	out	its	arguments	squarely	and	distinctly, or	else	forever	hold	its	peace.”).12 [¶ 22 ] T he	 showing	 required	 to	 overcome	 a	 statutory	 presumption “is one	of	fact,	so	the	court’s	decision	wheth er	the	burden	was	carried	is	reversed on	appeal only	if	the	evidence	compels	a	different	result.” Craigue	v.	Craigue , 617 A.2d 1027,	 1028 (Me.	 1992)

. Here,	 the	 court	 found ,	 based	 on	 Frances’s testimony, that	John	has	made	no	spousal	support	payments	at	least	since	the first	 of	 January	 1977 , and	 consequently	 determined	 that	 the	 section	 864 presumption	 had	 “been	 overcome.”	 	 The	 weight	 to	 be	 given	 to	 Frances’s testimony

— i.e.,	whether	it	was	sufficient	to	ov ercome	the	presumption

— was the	 exclusive	 province	 of	 the	 court	 as	 fact

- finder, s ee Sloan	 v.	 Christianson , 2012 ME 72,	¶	33,	43	A.3d	978 ,	and	 therefore we conclude	 that	 the	evidence did	not	compel	a	different	result.
D. Award	of	Attorney	Fees [¶ 23 ] Finall y,	 John	 contends	 that	 the	 court	 abused	 its	 discretion	 by awarding	 Frances	 all	 her	 attorney	 fees. See 19

- A	 M.R.S.	 §	 105 (2020) (authorizing	 the	 court	 to	 order	 one	 party	 to	 pay	 another	 party’s	 reasonable attorney	fees	for	participation	in	any	family	proceed ing). In	awarding	fees,	the trial	court found	that	John’s	“pretrial	tactics	significantly	added	to	the	cost	of this	action,”	referencing the discovery	disputes , which	could	“fairly	be	laid	at the	 feet	 of	 the	 defendant.” It also	 noted	 the	 extreme	 di sparity	 between the13 parties’	 annual	 income s ($21,000	 for	 Frances,	 $312,000	 for	 John). John

contests that the	discovery	disputes were	his fault and	asserts that the	court erred	by	only	considering	the	parties ’ income	and	not their assets. We review

a	cour t’s	decision	to	award	attorney	fees	for	an	abuse	of	discretion. Jandreau	v. Lachance ,	2015	ME	66,	¶	29,	116	A.3d	1273

. [¶ 24 ] T he	court’s	finding	that	the	discovery	disputes	were	the	result	of John’s conduct	is	supported	by	the	record,	which	shows	that	t he y all	revolved around	 his	 reluctance	 to	 be	 orally	 deposed because	 of his	 purported impairments.		Moreover,	because	the	court	was	in	the	best position to	assess the	parties’	conduct	contributing	to	the	amount	of	fees,	its	finding	a s	to John’s pretrial	conduct	is	entitled	to	particular	deference. See Est

. of	Ricci ,	2003 ME 84, ¶ 34,	827	A.2d	817

. [¶ 25 ] With	respect	to the	court’s	consideration	of	the	parties’	ability	to award	the	costs,	it s	conclusion that	John

— whose	income	is	almost fifteen	times greater	 than	 that	 of	 Frances

— has	a	greater	ability	 to	absorb	 the	costs	 of	 the litigation was	more	than	reasonable,	and	the	court was	not	obligated	to	make findings	 regarding	 the	 parties’	 assets. See	 Jandreau ,	 2015	 ME	 66,	 ¶	 29,
116 A.3d 1273 (noting	 that	courts	have	 the	“discretion	 to	consider	all	 factors that reasonably	bear on	the	fairness	and	justness”	of	an	award	of	attorney	fees14 including	“the	parties’	relative	capacity	to	absorb	the	costs”	(quotation	marks omitted)). The	entry	is: Judgment	affirmed.

Laura	 P.	 Shaw,	 Esq.,	 and	 Christopher	 L.	MacLean,	 Esq. (orally) ,	 Camden	 Law LLP,	Camden,	for	appellant	John	E.	Quirk	Sr. Charles	W.	Cox,	Esq. (orally) ,	Bloomer	Russell	Beaupain,	Bangor,	 for	appellee John	E.	Quirk

Bangor	District	C ourt	docket	number	FM

- 2018

- 559 F OR C LERK R EFERENCE O NLY