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 abused	 its	 discretion	 (1)	 by	 limiting her

financial	discovery	from a	third	party;	(2)	in	its	valuation	of	marital	property;	

(3)	 by	failing to	 find	that David’s discovery	 violations	 constituted economic	

misconduct;	(4) by	making	insufficient	findings	supporting	its award	of spousal	

support	and failing	to	award	her	additional	support;	and	(5)	declining 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	David	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	

support,	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	

the	IRA	funds	and	loan	proceeds	to	purchase	and renovate	a	condominium	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;	David	 counterclaimed	 for	 divorce. On December	17,	

2014,	the	court	(Goranites,	J.)	entered	an	interim	order	on	the	parties’ points	of	
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agreement	 resulting	 from mediation	 by	 which they	 would	 maintain	 their

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	the	condominium. The	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	discovery	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	motion	further,	the	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	that	while	it	would	not limit	Adriana’s	access	to	relevant	
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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	

that	David’s	401(k) account is	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	 per	 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	work up	to	40	hours	per	week	and	

earn	commissions,	and	it	therefore	determined	that	her	earning	potential	is 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 explained that	 it	 carefully	 considered	 the	 factors	
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enumerated	in 19-A	M.R.S.	§	951-A(5) (2016),	“including but	not	limited	to	the	

length	 of	 the	 marriage,	 Adriana’s	 contributions	 as	 homemaker,	 and	 David’s	

economic	 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	Adriana	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,	noting	 that	both	parties	had	

incurred	“substantial	legal	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.	 See	M.R.	App.	P.	2.

II.		DISCUSSION

A. Limitations	on	Financial	Discovery

[¶10]	 	 Adriana contends that	 the	 court	 erred	 when	 it limited her	

discovery	 by effectively	 granting	 David’s	 partner’s	 motions to	 quash the	

subpoenas 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	of	
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discretion.”		State	v.	Marroquin-Aldana,	2014	ME	47,	¶	33,	89	A.3d	519; see	also

State	v.	Watson,	1999	ME	41,	¶	 5,	 726 A.2d	214;	Corey	v.	Norman,	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	

omitted)).

[¶11]	 Generally,	the	scope	of	discovery in	civil	proceedings	is	broad,	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	

643-48	 (3d,	 2016-2017 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.	2013);	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.”).

[¶12]		Here,	it	was	within the	court’s	discretion	to	quash	the	subpoenas	

for	 David’s	 partner’s	 deposition	 and	 production	 of	 personal	 financial	
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documents.		She	was	not	a	party	to	the	case,	and,	on	this	record,	it	was	not	an	

abuse	of	discretion	for	the	court	to	determine	that	records	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	property.

1

B. Findings	Regarding	the	Value	of	Marital	Property

[¶13]		Adriana	asserts	that	there	is	insufficient evidence	to	support	the	

court’s	findings	regarding	the	balances	in	the	parties’	bank	accounts.	 She	also	

asserts that	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	of	marital	property	for	clear	error.”		Burrow	v.	Burrow,	2014	ME	111,	

¶	20,	100	A.3d	1104 (quotation	marks	omitted).		The	court’s	valuation	of	assets

“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	money	from	

the	IRA	and	401(k)	account	to,	among other	things,	purchase	the	condominium	in	his	partner’s	name.
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[¶14]		The	court	found	that	the	parties’	bank	account	balances	“fluctuate	

in	value”	and	were	“equal	for	purposes	of	the	division	of	marital	property.”	 The

record	supports	these findings:	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	

indicated 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,	the court’s	findings	

regarding	 the	 parties’ bank	 accounts	 reflect	 a	 “reasoned	 evaluation”	 of	 the	

evidence,	and	are not	clearly	erroneous.		Peters	v.	Peters,	1997	ME	134,	¶	14,	

697	A.2d	1254 (quotation	marks	omitted).

[¶15]		Regarding	the	401(k) account,	the	court	found	that	it	was	worth	

about	$21,000;	however,	an	account	statement	dated	March	11,	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	Adriana’s	

benefit	because	the	court	ordered	David	to	transfer	“100%	of	the	401(k)	less	

the	loan	balance”	to	her,	which	resulted	in	her	receiving	a	larger	award	than	the	

court	had	accounted	for	in	its	order.
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C. Economic	Misconduct

[¶16]	 	 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; failed to	produce	a	letter indicating	that	he	gave	a	

$50,000	 “gift”	 to	 his partner,	 contradicting	 his	 deposition testimony 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.

[¶17] At	the	hearing,	David	identified	his	financial	statement,	which	was	

admitted	 as	 an	 exhibit, and 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	err	

by	declining to	 find	that	the	 failure	to	sign	his	affidavit	constituted	economic	

misconduct.

[¶18]		Concerning the	gift	letter,	David	testified	that	he	had	not	initially	

remembered	that	the	gift	letter	existed	and	could	not	recall	the	circumstances	
10

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	 the	 $50,000	 transaction	

mentioned	in	the	gift	letter	corresponds	to	the	money	that	he received	when	he	

drew	 from	 the	 IRA. The	 court	 found	 that	 David	 committed	 economic	

misconduct	 when	 he	 liquidated	 that	 asset,	 and	 considering	 the	 court’s	

discretion	 in	 determining	 witness	 credibility,	see	 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.

[¶19]	 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	amounts were	applied	to	her	own	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	an
11

award	of	spousal	support	for	an	abuse	of	discretion.		Dube	v.	Dube,	2016	ME	15,	

¶	10,	131	A.3d	381.		Because	Adriana	moved	for	further	findings	of	fact	and	her	

motion	was	denied,	“we	cannot	infer	findings	from	the	evidence	in	the	record.”		

Douglas	 v.	 Douglas,	 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.

[¶21]	 	 In	 an	 order	 awarding	 spousal	 support,	 the	 court	 must	 make	

“sufficient	findings	to	inform	the	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	prescribed	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	

economic	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	 the	 parties’	 employment	 histories;	 and

found	that	David	has	an	annual	salary	of	$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	support.

[¶23]	 	The	 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	that	David	liquidated.

[¶24]	 	Adriana’s	Rule	 52(b)	motion	 did	 not	 request	 greater	 specificity	

regarding	 the	 court’s	 methodology	 in	 awarding	 reimbursement	 support;	 it	

simply	 asks the	 court	 to	 “incorporate	 the	 following	 finding[]	 of	 fact	 and	

conclusion[]of	law”:

15.	 	 The	 Court	 amends	 its	 finding	 that	 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	record. Adriana	testified	that	

she	can	choose	the	shifts	and	hours	that	she	works	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	three	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	 paralleled Adriana’s	 approach	 but	 did	 not	 use the	 balance	 of	 the	

depleted	marital	estate as	an	express starting	point.

3

		Accordingly,	we	discern

no	error	in	the findings	underlying	the	court’s award, see	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	failing	to	award	

her	attorney	fees.		“We	review	the	court’s	decision	not	to	award	attorney	fees	

for	 an	 abuse	 of	 discretion.”	 	 Jandreau v.	 LaChance,	 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	 remaining	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	

party	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	 circumstances,	

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	costs	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.		

Considering	 the other	 provisions	 of	 the	 judgment,	 including	 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	District	Court docket	number	FM-2014-1092

FOR	CLERK	REFERENCE	ONLY