MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2020 ME 75

Docket: Cum-19-449

Submitted

On	Briefs: May	12,	2020

Decided: May	28,	2020

Panel: MEAD,	GORMAN,	JABAR, HORTON,	and	CONNORS, JJ.

SUSAN	G.	COLUCCI

v.

STEPHEN	COLUCCI

CONNORS,	J.

[¶1]	 	 Stephen	 Colucci	 appeals	 from	 a	 judgment	 of	 the	 District	 Court	

(Portland,	Mills,	J.)	granting	Susan	G.	Colucci’s	complaint	for	divorce.		Stephen	

contends	that	the	court	erred	in	awarding	the	parties’	dog	to	Susan because	the	

dog	is	his	nonmarital	property.

1		We	vacate	the	judgment.

[¶2]		Susan	and	Stephen	married	in	May	2015.		In	October 2017,	Susan	

filed	a	complaint	 for	divorce.		In	her	 financial	 statement	 filed	with	 the court,

 1		Stephen	also	asserts	that	there	is	an	ambiguity	in	the	provision	of	the	judgment	that	requires	

him	to	pay	Susan	twenty	percent of	the	profits	from	his	corporation.		Specifically,	Stephen	contends	

that	the	court	did	not	indicate whether	the	corporation’s	“profits”	should	be determined	before	or	

after	 it	 pays	 Stephen	 his	 salary	 as	 a	 director.	 	 We	 see	 no	 ambiguity.	 	 In	 ruling	 on	 Stephen’s	

post-judgment	motion,	the	court	stated that Stephen	could	“account	for	[his]	reasonable	salary	when	

determining	[the]	amount	due	to	[Susan].” In	light	of	this	clarification,	the	judgment	is	sufficiently	

clear	for	Stephen	to	make	a	payment	to	Susan	that	he	believes,	in	good	faith,	satisfies	the	provision	

of	the	judgment	at	issue.		Therefore,	we	decline	to	consider	Stephen’s	argument	further.
2

see M.R.	Civ.	P.	108(c), Susan	listed	two dogs as	marital	assets.		She indicated,	

however, that	one dog,	Louise, was	acquired	prior	to	the	marriage,	in	2010.		At	

trial,	 the	 parties	 submitted no other evidence	 regarding	 when,	 or	 by	 which	

party,	Louise was	acquired.

[¶3]		In	August	2019,	the	court	entered	a	judgment	granting	the	divorce.		

In	 its	 written	 decision,	 the	 court	 did	 not	 make	 any	 express	 factual	 findings	

regarding	the	dogs,	but	it	ordered that	both dogs be	“set	aside	to	[Susan]	as	her	

exclusive	property.”		Stephen	timely	filed	a	motion pursuant	to	M.R.	Civ.	P.	52,

requesting a	finding	that	Louise is his nonmarital	property and	asserting that	

the	court	should	have	set	aside	 that dog	 to	him.		The	court	denied	Stephen’s

motion,	explaining	that	the	record	did	not	support	his proposed	finding of	fact	

or	conclusion	of	law.		Stephen	timely	appealed.		See	M.R.	App.	P.	2B(c)(1).

[¶4]	 	 Undisputed	 evidence	 establishes	 that	 Louise was	 acquired	 in	

2010—five	 years	 before the marriage.	 Therefore,	 the	 record	 compelled	 the	

court	 to	classify that dog	as nonmarital,	see	Miliano	v.	Miliano,	2012	ME	100,	

¶ 16,	 50 A.3d 534	 (stating	 that	 property	 acquired	 prior	 to	 the	 marriage	 is	

nonmarital),	and	the	court	was	required	to	set	aside	Louise to	its	owner	as	that	

person’s	nonmarital	property,	see	id.
3

[¶5]		Because	the	parties	did	not	present	any	evidence	of	who—Susan	or	

Stephen—acquired	 Louise in	 2010, however,	 the	 court	 did	 not	 have	 an

adequate	evidentiary	basis	from	which	it	could make	the	findings	necessary	for	

it	to	set	aside	that dog	to	the	correct	party.		Faced	with	both parties’	failure	of	

proof	on	this	question	of	fact,	it	would	have	been	appropriate	for	the	court	to	

reopen	 the	 record	 for the	 parties	 to	 submit	 additional	 evidence	 prior	 to	

entering	a final judgment.		See	id.	¶	26	n.9.

[¶6]	 	 We vacate	 the	 judgment and	 remand	 for	 further	 proceedings to	

determine	 ownership	 of	 Louise.	 	 See id. ¶¶ 16,	 26;	 McLean	 v.	 Robertson,	

2020 ME 15,	 ¶	 11,	 225	 A.3d	 410	 (stating	 that,	 where	 a	 party	 files	 a	Rule 52	

motion,	 the	 court	 must	 ensure	 that	 the	 judgment	 is	 supported	 by	 factual	

findings	that	are	based	on	record	evidence).	 We	note	that, despite the	lack	of

record evidence	on	this	issue,	Susan	and	Stephen are	no	doubt	aware	of	who	

between	them	acquired Louise in	2010.		Thus,	we	are	confident	that	the	parties	

will	be	able	to	resolve	what	should	be	an	undisputed	question	of	fact without	

expending	further	judicial	resources.

The	entry	is:

Judgment	 vacated.	 Remanded	 for	 further	

proceedings as	indicated	in	this	opinion.
4

Diane	 Dusini,	 Esq.,	 and	 Whitney	 Lallas,	 Esq.,	 MittelAsen,	 LLC,	 Portland,	 for	

appellant	Stephen	Colucci

Dana	 E.	Prescott,	Esq.,	Prescott,	 Jamieson,	Murphy	Law	 Group,	LLC,	Saco,	 for	

appellee	Susan	G.	Colucci

Portland	District	Court	docket	number	FM-2017-952

FOR	CLERK	REFERENCE	ONLY