MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2017 ME 111 Docket: Cum

- 16

- 300 Submitted

On	Briefs: April	27,	2017 Decided: June 6,	2017 Panel: SAUFLEY,	C.J.,	and	ALEXANDER, MEAD ,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

ADRIANA	M.	BERNTSEN

v. DAVID L.	BERNTSEN

MEAD,	J. [¶1] Adriana	 M.	 Berntsen	 appeals	 from	 a	 judgment of	 divorce	 from
David L.	Berntsen entered	in	the	District	Court	(Portland, J. French,	J. )

. Adriana
contends	 that	 the	 court	 erred or ab used	 its	 discretion	 (1) by limit ing her financial discovery from a	third	party; (2) in	its	valuation of	marital	property; ( 3 ) by fail ing to	 find that David’s discovery	 violations	 constituted economic misconduct; ( 4 ) by	making	in sufficient	findings supporting its award	of spousal support and failing to award her additional	support;	and	( 5 ) declin ing to	award her	attorney fees

. We	affirm	the	judgment

. I. BACKGROUND [¶2 ] Following	 a	 contested	 hearing,	 the	 court	 made	 the	 following findings,	which	are	supported	by	the	record. See Hutt	v. Hanson ,	2016	ME	128,2 ¶	2,	147	A.3d	352.		Adriana	and	Dav id	were	married	in	Italy	on	May	6, 1982. David	 was	 serving	 in	 the	 U.S.	 Army, and Adriana “ was the	 homemaker	 and caregiver ” of	 their	 four	children while the	 family relocated	 to	various places

. David retired	from	the	military	in	1998,	and	the	family eventually all moved to
Maine by 2002.	 	 In	 2011,	 the	 marriage	 broke	 down , and	 Adriana moved to Florida.	 	 David agreed	 to	 give Adriana	 his	 military	 pension	 payments	 for

s upport,	and	Adriana also worked	part

- time	at a military base	selling	cosmetics. She	had sold cosmetics part
- time in	the	past,	but	had	not	worked	outside	the
home while residing in	Maine. [¶3 ] In	2013,	David	met	his	current partner. He	told	Adriana	about his partner in	September of	that year . In	June 2014, without	Adriana’s	knowledge

or	consent , David liquidated	his	IRA valued	at	about	$61,000	and put most	of the funds	into	a	bank	account	he	owned	jointly	with	his	partner. Around	that time,	he	also borrowed	about	$11,000	against	his 401 (k) account

. David	used

t he	IRA	funds	and	loan	proceeds to	purchase	and renovate	a	condo minium	in his partner ’s	name,	where he	and his	partner currently reside

. [¶4 ] Adriana	returned	to	Maine	in	October	2014	and	 filed	a	complaint for	judicial	 separation ; Da vid	 counterclaimed	 for	 divorce. On December 1 7 , 2014, the	court ( Goranites,	J. ) entered	an	interim order on the	parties’ points	of3 agreement resulting from mediation by which they	 would	 maintain	 the ir current	life	insurance	policies	and	 that	David	would pay	Adriana	 $2,000	per
month	in spousal support. [¶5 ] On	October	30,	2015,	Adriana served	a	subpoena	 to	 take David’s partner’s	deposition	and for production	of documents	related	to	her	finances
and	th e	condo minium

. T he court	( Kelly,	J. ) , in	an	order entered without specific findings , granted David’s	partner ’s	motion	to	quash.		On March	2 ,	2016,	Adriana subpoenaed David’s	 partner to	 testify at	 the	 divorce	 hearing and	 produce financial	documents

. David’s	partner filed	another	motion	to	quash. [¶6 ]		A	contested	hearing	was	held	on	March	15	and	23,	2016. At	 the

outset of	the	hearing,	the	court	( J. French,	J. ) reminded	the parties that it	had
ruled at a	disc overy	conference conducted	during	the previous week that	the subpoena for	the	appearance	of	David’s	partner would	not	be	quashed,	but she
would not	 be	 required	 to produce any	 documents	 that had	 not been	 under
David	or	Adriana’s	control. After	giving	 the	parties	 the	opportunity to argue the	mo tion	further,	t he	court elaborated	on	its	decision, ruling that	Adriana	did not	need	documents	from	David’s	partner	to	make	her	arguments	at	trial and that	they were	irrelevant	to	the	issue of	the	division	of	marital	property. The
court	also emphasized	th at while it would	not limit	Adriana’s	access	to	relevant4 information,	it	was taking into	consideration	“the	burden [on] and	privacy	o [ f ] a	nonparty.” [¶7 ] In	a judgment dated April	11 ,	2016,	the	court found	that	David	had engaged	 in	 economic	 misconduct when	 he	 borrowed	 against	 the 401(k) account and	liquidated the	 IRA

— actions that collectively reduced	 the marital	 estate	 by	 $72,000

— and	 stated	 that	 this	 misconduct	 was	 a	 factor	 in determining	the	property	distribution	and	spousal	support. The court	 found

t hat	David’s	401(k) account i s	currently	worth	about	$31,317	but	is subject	to a	loan	of	approximately $ 10,000	that he	used	for	improvements	to	the	condo; he	 earns	 a	 salary	 of $85,686.90	 p er	 year; and he	 has	 a	 military	 retirement pension,	82%	of	which is marital ,	from	which	he	receives	monthly	payments	of $1659.10

. Concerning Adriana ,	the	court	found	that	she earns	$10.10	per	hour working	up	to 30	hours	per	week at a	department	store selling	cosmetics. The court	also	found,	however, that	she	is	able	to	w ork up	to	40	hours	per	week	and earn	commissions,	and it	therefore determined	that	her	earning	potential	i s at least $21,008	per	year. [¶8 ]		The	court	awarded	Adriana general	spousal	support	of	$1,500	per month,	as	well	as reimbursement	support of	$237 per	month for a	period of

ten years. The	 court explai n ed that	 it carefully	 considered	 the	 factors5 enumerated	in 19

- A	M.R.S.	§ 951

- A(5) (2016) , “ including but	not	limited	to	the length	 of	 the	 marriag e,	 Adriana’s	 contributions	 as homemaker,	 and	 David’s

econ omic	 misconduct.” It	 also	 awarded Adriana	 100%	 of	 the	 remaining balance of	 the	 401( k) account and 59%	 of	 the	 marital	 portion	 of David’s military	pension

. The judgment ordered	 that David	and	Adri ana each retain ownership	 of	 the	 personal	 property	 already	 in	 their	 possession	 and their personal bank	accounts,	which the	court found	to	be	equal	in	value. The	court declined	 to	award	attorney	 fees	 to	either	party,	n oting	 that b oth	parties	had
incurred “ substantial lega l	fees ” and	“consider[ing] the	manner	in	which both parties	litigated	the	case

. ” [¶9 ] Adriana	 moved	 for amended	 or additional	 findings	 of	 fact	 and conclusions	of	law pursuant	to	M.R. Civ. P

. 52(b) , which	the	court denied

. This timely	appeal	followed. S ee M.R.	App.	P.	2

. II. DISCUSSION
A. Limitations	on Financial	Discovery [¶1 0 ] Adriana contends that	 the	 court	 erred when	 it limit ed her discovery	 by effectively granting David’s	 partner ’s	 motion s to	 quash the subpoena s for	her	deposition	and for	the production	of her	personal financial
documents

. “We	review	a	court’s	decision	on	a	motion	to	quash	for	an	abuse	of6 discretion.” State	v.	Marroquin

- Aldana ,	2014	ME	47,	¶ 33,	89	A.3d	519; see	also
State	v.	Watson ,	1 999	ME 41,	¶	 5,	 726 A.2d	214; Corey	v.	No rman,	Hanson	& DeTroy ,	1999 ME 196,	¶ 17,	742	A.2d	933	(“A	party	aggrieved	by	a	discovery order	must	show

.	. . that	the	trial	judge	committed	error	in	the	discovery	ruling despite	the	considerable	discretion	vested	in	the	judge .	.	.	.” (quotation	marks

o mitted)). [¶1 1 ] Generally,	t he	scope	of	discovery in	civil	proceedings	is b road ,	and “[p]arties	may	obtain	discovery	regarding	any	matter,	not	privileged,	which	is relevant	 to	 the	 subject	 matter	 involved	 in	 the	 pending	 action.”
M .R. Civ. P. 26(b)(1) ; see 2 Harvey	 &	 Merritt, Maine	 Civil	 Practice §	 26:3 at 6 43

- 48 (3d,	 201 6

- 201 7 ed.) .	 	 However, “[t]he	 broad	 scope	 of	 discovery generally	permitted	in	civil	actions	is	restricted	in	divorce	proceedings , ” largely

to “money	 and	 property	matters.” Levy, Maine Family	 Law § 4.4[1]	 at	 4

- 14 (8th ed.	201 3) ; see M.R.	Civ.	P.	112(a)(1) (“In	any	proceeding	under	this	chapter, a	party	may	obtain	discovery	on	issues	of	spousal	and	child	support,	counsel and	guardian	ad	litem	fees,	and	disposition	of	property	and	debt	as in	any	other civil	actions.”). [¶1 2 ] Here,	it	was within the court’s	discretion	to quash	the	subpoenas for	 David’s	 partner’s	 deposition	 and	 production	 of personal financial7 documents

. S he	was	not	a	party	to	the	case,	and ,	on	this	record,	it	was	not	an abuse	of	discretion for	the	court	to	determine	that	r ecords	pertaining	to	David’s finances and	 the	 testimony	 of	 both	David	 and	 his	 partner were sufficient	 to demonstrate	 his	 financial	 status	 and inform	 the	 court’s	 awards	 of spousal support	and	distribution	of marital	propert y . 1
B

. Findings	Regarding	the	Value	of	Marital	Property [¶1 3 ] Adriana	asserts	that	there	is insufficient evidence	to	support	the court’s	findings	regarding	the	balances	in	the	parties’	bank	accounts

. She	also

asserts th at	the	court	erred	in	finding	that the value	of	David’s	401 (k ) account

was about $21,000 when a	document	produced	by	David	at the hearing	showed it	has	a	net	value	of	$25,270.49

. “We	review	a	divorce	court’s	determination	of
the	value	o f	marital	property	for	clear	error.” Burrow	v.	Burrow ,	2014	ME	111, ¶ 20,	100	A.3d	1104 (quotation	marks	omitted)

. The	court’s	valuation	of	asset s “must	reflect	a	reasoned	evaluation	by	the	court	of	all of the	evidence.” Cole	v. Cole ,	561	A.2d	1018, 1020	(Me.	1989).

1 We	note	that	at	the	hearing,	Adriana	had	the	opportunity	to	inquire	of	David’s	partner

— and	did so	extensively

— regarding	her employment	and	income,	joint	living	expenses	incurred	with	David, the	condominium	purchase	and	renovations,	and	specific transactions	as	shown on	bank	statements for	an account	she	owns	jointly	with	David.		Additionally,	David	testified	that	he	had	used	mo ney	from the	IRA	and	401(k )	account	to,	among other	things,	purchase	the	cond ominium	in	his	partner’s	name.8 [¶1 4 ] The	court	found	that	the	parties’	b ank	account	balances	“fluctuate
in	value ”	and	were	“equal	for	purposes	of	the	division	of	marital	property.” The record	supports	th ese finding s : David	testified from	memory that	he	had	less than $100	 in one account , $400

- 500	 in the account	 jointly	 owned	 with	 his partner , and	 $300

- 400	 in	 another	 account

. Adriana’s	 financial	 statement
indicate d that	she has two	checking	accounts	containing $500 and	$1,330.77 respectively , as	well	as $65	in	a savings	account

. Evidence	indicated	that	the balances	of the	parties’ bank accounts	fluctuated. Overall ,	th e court’s	findings regarding	 the	 parties ’ bank	 accounts reflect	 a	 “reasoned	 evaluation”	 of	 the evidence,	and are not	clearly	erroneous. Peters	v. Peters ,	1 9 97	ME	134,	¶	14, 697	A.2d	1254 (quotation	marks	omitted)

. [¶1 5 ] Regarding	the	401(k ) account , the	court	found	that	it was	worth about	$21,000;	however,	an	account	statement dated	March	1 1 ,	2016 , indicates that	 the	401(k ) account has	a	 vested value	 of	 $35,091.03	and	is	 subject	 to	a $9,820.54	 loan,	 making	 it	 worth	 $25,270.49. Nonetheless,	 any	 error	 in	 the court’s	finding as	to	the	value	of	the	401(k)	account actually	inures	to	Adrian a’s benefit because	the	court	ordered	David	to	transfer	“100% of	the	401(k)	less
the	lo an	balance”	to	her ,	which	resulted	in	her	receiving	a	larger	award	than	the court	had	accounted	for	in	its	order

.9 C

. Economic	Misconduct [¶1 6 ] Although	 the	 court	 found	 that	 David	 committed	 economic misconduct	 when	 he	 liquidated his	 IRA	 and	 took	 a	 loan	 against	 his 401(k) account , Adriana	asserts	that	the	court	erred	when it	did	not find that
David committed	 economic misconduct	 when	 he	 failed to	 sign	 and	 file an updated	financial	statement; fail ed to	produce	a letter indicating	that	he	gave	a $50,000	 “gift”	 to his partner , contradicting	 his deposition te stimony that	 he made	no	such	gifts ; and concealed	money received from his partner used to	pay for his living	expenses

. We	review the court’s finding	that	a	party	did or	did	not
commit	economic	misconduct for	clear	error

. Catlett	v.	Catlett ,	2009	ME	49, ¶ 31,	970	A.2d	287. [¶1 7 ] At	the	hearing, David	identified	his	financial	statement ,	which	was admitted	 as	 an	 exhibit, an d explained	 that	 he	 “[didn]’t	 know”	 why	it wasn’t signed ;	 he also testified	 to	 his current income ,	 assets, and	 expenses. Accordingly,	the	court had evidence regarding David’s	finances and	did	not	e rr by declining to	 find	that	the	 failure	to	sign	his	affidavit	constituted economic misconduct. [¶1 8 ] Concerning the	gift	letter,	David	tes tified	that	he	had	not	initially remembered	that	the	gift	letter	existed and	could	not	recall	the	circumstances10 surrounding his	 signing of the	 letter. He	 had	 failed	 to	 disclose	 the	 gift or reference	 any	 letter	 regarding	 any	 gifts in	 his	 deposition	 and answers	 to Adriana’s	 interrogatories. David	 testified	 that	 t he	 $50,000	 transaction
mentioned	in the	gift	letter corresponds to	the	money	that he received when	he drew	 from	 the	 IRA. T he	 cou rt	 found	 that	 David	 committed	 economic misconduct	 when	 he	 liquidated	 that	 asset,	 and	 considering	 the	 court’s discretion	 in	 determining	 witness	 credibility, s ee Hutt ,	 2016	 ME	 128, ¶	 14,
147 A.3d	 352, did	 not	 clearly	 err	 by	 failing	 to	 find	 that	 David committed
additional misconduct by	failing	to	produce	the	gift	letter	at	an	earlier	time. [¶1 9 ] David’s partner	testified	that	she	gave him $1, 500	per	pay	period to	pay	bills , but David contradicted his partner ’s testimony and	asserted that
those	amou nts were	applied to	her ow n attorney fees

— not to him

. We	find	no error	 in	 the	 court’s	 declining	 to	 specifically	 find,	 upon this	 conflicting testimony,	 economic	 misconduct regarding the	 manner	 in	 which	 David	 may have	paid	his	expenses	pending	the	divorce.
D

. Spousal	Support [¶20 ]	 	 Adriana	 asserts	 that	 the	 court made	 insufficient	 findings	 to support	its	awards	of general spousal	support and	reimbursement	support ,	and that	it	erred	by	declining	to	award	a	higher	amount	of	support

. We	review	a n11 award	of	spousal	support	for an abuse	of	discretion. Dube	v.	Dube ,	2016	ME	15, ¶	10,	131	A.3d	381. B ecause	Adriana	moved	for	further	findings of fact	and	her motion	was	denied, “we cannot	infer	findings	from	the	evidence	in	the	record.” Douglas	 v.	 Dougl as ,	 2012	 ME	 67,	 ¶ 27,	 43	 A.3d	 965.	 	 “Instead,	 the	 court’s decision	must	include	sufficient	findings	to	support	its	result	or	the	order	must
be	vacated.” Id. [¶ 2 1] In	 an	 order	 awarding	 spousal	 support,	 t he	 court	 must	 make “sufficient	findings	to	inform	t he	parties	of	the	reasons	for	its	conclusions,	and to	allow	for	effective	appellate	review.” Finucan	v.	Williams ,	2013	ME	75,	¶	15, 73	A.3d	1056	(quotation	marks	omitted). However,	“a	court	is	not	required	to
detail	the rationale	it	uses	to	reach each	finding	of	fact	or	conclusion	of	law.”
Miele	v.	Miele ,	2003	ME	113,	¶	11,	832	A.2d	760

. [¶22 ]		Here, the court	awarded Adriana	general	support	in	the	amount	of $1,500	per	month

. The	court stated	that	it carefully	considered the	statutory factors pr escribed	in 19

- A	M.R.S.	§	951

- A(5) , “including	but	not	limited	to the length	 of	 the	 marriage,	 Adriana’s	 contributions	 as	 homemaker, and	 David’s

eco nomic	misconduct , ” and it made	 findings	pertaining	to	those	 factors

. The court	found that	while	David	was	in	the	military,	Adriana	did	not	work	out	of the	home	and	was	the	“homemaker	and	caregiver”	of	the	parties ’ four children ;12 made thorough	 findings	 regarding	 th e	 parties’	 employment	 histories;	 and found that	David	has	an	annual	salary	o f	$85,686.90 , and	that	Adriana	can	earn at	 least	 $21,008	 per	 year	 through	 her	 hourly	 wages	 and	 commission	 at	 the department	store. 2 These	 findings	were	not	clearly	erroneous,	and	the	court did	not	abuse	its	discretion	in	its	award	of	general	spousal	suppo rt. [¶23 ] T he	 court	 also	 awarded	Adriana	 reimbursement	 support	in	 the amount	of	$237	per	month	for	ten	years ,	citing	David’s	economic	misconduct

. Although	 the	 court did	 not	 explain	 in	 detail	 its	 methodology	 for	 computing reimbursement	support,	we	note that	the	court	awarded	the	entire	remaining balance	in	the	401(k)	account	to	Adriana due	to	David’s	economic	misconduct , and	that	the	reimbursement	support	figure,	when	computed	to	a	ten

- year	total, approaches	nearly half	of	the	value	of	the	$61,000	IRA	th at	David liquidated

. [¶24 ] Adriana’s Rule	 52(b) motion	 did	 not	 request	 greater	 specificity regarding	 the	 court’s	 methodology	 in	 awarding	 reimbu rsement	 support;	 it simply	 asks the	 court	 to	 “incorporate	 the	 following	 finding[]	 of	 fact	 and conclusion[]of	law ” : 15.	 	 The	 Court	 amends	 its	 finding	 t hat	 the	 Defendant	 shall	 pay Ms. Berntsen	reimbursement	support,	for	a	period	of	10	years,	in

2 Contrary	to	Adriana’s	contention, this	finding	is supported	by	the	recor d

. Adriana	testified	that she	can	choose	the	shifts	and	hours	that	she	w orks	at	the	department	store,	“can	count	on	the	hours that	 [she]	 will	 work”	 due	 to	 her	 “good	 rapport”	 with	 other	 employees,	 and	 sells	 “quite	 a	 bit	 of product,”	on	which	she	earns	a	thre e	percent	commission.13 the	amount	of	$237	per	month.		Absent	the	Defendant’s	economic misconduct,	Ms.	Berntsen	would	have	been	entitled	to	50%	of the depleted	asset,	or	$36,000.		The	Court	amends	the	reimbursement support	to	$328.66	per	month	for	a	period	of	10	years.
The	court’s methodology in	determining	an	amount	of	reimbursement	support clearly	 parallel ed Adriana’s	 approach	 but did	 not	 use the balance	 of	 the depleted	marital	estate as	a n	express starting	point

. 3 Accordingly,	we discern
no	error	in the findings	underlying the	court’s award , s ee Miele ,	2003	ME	113, ¶	11 , 832	A.2d	760; Bayley	v.	Bayley ,	602 A.2d 1152,	1154 (Me.	1992) (“ [ W ] here a	party	has	moved	for specific findings	of	fact	the	divorce	court is obliged	to	do
more	 than	 recite the relevant	 criteria	 and	 state	 a	 conclusion.”	 (emphasis added) ) ,	and , given	the	other	provisions	of	the	judgment,	no abuse	of	discretion
in	the	amount of reimbursement support awarded

. E

. Attorney	Fees [¶25 ] Finally, Adriana	contends	that	the	court erred	by	fail ing	to	award her	attorney	fees. “ We	review the	court’s decision	not	to	award	attorney	fees for	 an	 abuse	 of	 discretion.” Jandreau v.	 LaC hance ,	 2015	 ME 66,	 ¶ 29,
116 A.3d 1273.	 	 “[T]he	 court	 has	 discretion	 to	 consider	 all	 factors	 that reasonably	 bear	 on	 the	 fairness	 and	 justness	 of	 the	 award,”	 including	 “the

3 Because	 the	court	awarded	Adriana	 the	entire	 r emaining	balance	 of	 the	401(k)	account,	 the additional	awarding	of	reimbursement	support	amount	based	upon	that	same	amount would	create a	double	recovery.14 parties’	relative	capacity	to	absorb	the	costs	of	the	litigation	and	conduct	by	one part y	that	increases	the	costs	of	the	litigation.” Id. (quotation	marks	omitted). [ ¶26 ]		In	declining	to	award	attorney	fees,	the	court	explained: An	 award	 of	 counsel	 fees	 is	 based	 upon	 all	 relevant	 factors	 in determining	 what	 is	 fair	 and	 just	 under	 the	 cir cumstances, including	 the	 parties’	 relative	 capacity	 to	 absorb	 the	 costs	 of litigation.		Both	parties	have	incurred	substantial	legal	fees	in	this matter,	and	the	[c]ourt	has	considered	the	manner	in	which	both parties	litigated	the	case	in	determining	the reasonableness	of	the fees	request.		In light	of	the rest	of	the	provisions	contained	in	the Divorce	 Judgment,	 including	 the	 award	 of	 spousal	 support	 and disposition	 with	 respect	 to	 David’s	 military	 pension,	 the	 court orders	both	sides	to	bear	the	cos ts of	his	and	her	own	counsel. (Citations	omitted.) [¶27 ] Here,	 the	 court	 properly	 considered	 the	 relevant	 factors and delineated	its	 reasoning	 for	declining	 to	award	attorney	 fees	 to	either	party

. C onsidering	 the ot her	 provisions	 of	 the	 judgment, includi ng	 the spousal support	award to	Adriana and the distribution	of	marital	assets , we conclude that	 the	 court did	 not	 abuse its	 discretion in	 denying Adriana’s	 request	 for attorney	fees. The	entry	is: Judgment	affirmed.15 Jeffrey	Bennett,	Esq. , and	Joan	Egdall,	Esq.,	Legal

- Ease,	LLC,	South	Portland,	for appellant	Adriana M. Berntsen Christopher	P.	Leddy,	Esq.,	Ainsworth,	Thelin	&	Raftice,	P.A.,	South	Portland,	for appellee	David L. Berntsen

Portland	Dis trict	Court docket	number	FM

- 2014

- 1092 F OR C LERK R EFERENCE O NLY