MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017 ME	124

Docket: Wal-16-151

Submitted

On	Briefs: January	19,	2017

Decided: June	20,	2017

Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

DOROTHY	D.	BLACK

v.	

JAMES	A.	BLACK

HJELM,	J.

[¶1]	 	 James	 A.	 Black	 appeals	 from	 a	 judgment	 of	 the	 District	 Court

(Belfast,	Raimondi,	J.)	denying	a	motion	 for	contempt	 filed	against	him	by	his	

ex-wife,	 Dorothy	 D.	 Black,	 but	 nevertheless	 ordering	 him	 to	 pay	 Dorothy	 a	

sum that	the	court	determined	he	owed	to	her	pursuant	to	the	parties’	divorce	

judgment.		James	argues that	the	court	lacked authority	to	grant	Dorothy	any	

form	 of	 relief upon	 denying her motion for	 contempt,	 which	 was	 not	

accompanied	 by	 a	 motion	 to	 enforce.	 The	 record reveals	 that	 the	 court	

determined that	 Dorothy	 had proved	 that	 James	 was	 in	 contempt, but	 the	

court	denied	Dorothy’s	motion	 for	a	reason	that	was	erroneous.		Given	these	

unusual	circumstances,	we	conclude	that	the	court	ultimately	acted	within	its	

authority	 by	issuing	 an	 order	 requiring James to	 pay	Dorothy	 the	 arrearage	
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owed to	her and	 that	 James	 was	 not	 unfairly	 prejudiced	 by	 that	 result.	 	We	

therefore	affirm	the	judgment.

I.		BACKGROUND

[¶2]	 	 James	 and	 Dorothy	 were	 divorced	 by	 a	 judgment (Sparaco,	 J.)	

entered	 in June	 2012.	 Neither	 party	 was	 represented	 by	 counsel	 in	 that	

proceeding.	 The	judgment	incorporates	a	written	settlement	agreement	that	

James	drafted	without	the	help	of	an	attorney.		

[¶3]	 	 The judgment evenly	 divided the	 parties’	 assets,	 including	 bank	

accounts,	personal	property,	and	several	parcels	of	real	estate.	 The	judgment

also provides for	the	equal	division	of	the	parties’	ongoing	income.	 Relevant

to	 this	 appeal,	 the	 judgment allocates to	 each	 party	 his	 or	 her	 respective	

income	 from	 social	 security—$455	 to	 Dorothy,	 and	 $812	 to	 James—and	

allocates $378.50 in	 “[a]partment	 income”	 to	 Dorothy. The	 parties	 do	 not	

dispute	 that	 the	 apartment	 is	 located	 on	 one	 of	 the	 parcels	 of	 real	 estate	

allocated	 to	 James,	 that	 it	 generates a	 total	 of	 $800	 per	 month	 in	 rental	

income,	and	that	James is	required	to	pay	$378.50 of	that	amount to	Dorothy

each	month.

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 1	 	The	 divorce	judgment	 does not	 characterize	 the	 agreed-upon	 payments	 as	 spousal	 support,	

and	in	fact,	the	judgment explicitly	states,	“Neither	party	shall	pay	alimony	to	the	other.”	
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[¶4]	 	 In	 August	 2015,	 Dorothy	 filed	 a	 motion	 for	 contempt,	 see	 M.R.	

Civ. P.	66,	120,	alleging	that	James	had	failed	to	pay	her	$378.50	per	month	as	

required	by	the	divorce	judgment.	 In	the motion,	Dorothy requested	that	the	

court	 impose	 remedial	 sanctions	 and	 award	 her	 costs,	 including	 reasonable	

attorney	fees.2		

[¶5]	 	 A	 hearing	 was	 held	 in	 March	 2016,	 where	 both	 parties	 were	

represented	by	counsel.		The	parties	testified	that	they	had	not	contemplated	

what	 would	 happen	 if	 circumstances	 changed	 affecting	 the	 distribution	 of	

rental	income—a	 reduction	 of	 rental	income,	 for	example.	 	Dorothy	testified

that	 they	 had	 discussed	 only	 that	 James	 would	 pay	 her	 $378.50	 per	 month	

during	his	lifetime.		

[¶6] James	acknowledged	 that he	had	agreed	to	pay	Dorothy	 $378.50	

per	month but failed	to	make	those	payments for	eleven	months,	beginning	in	

March	 2015,	 and	 that	 as	 a	 result he	 “did	 owe	[Dorothy] some	 money.”	 He	

stated	that	although	he	stopped	making	the	payments	because	a	tenant	moved	

out	 of	 the	 apartment, he	 did	 not	 resume	 making	 payments even	 when he	

found	a	new	tenant	several	months	later because	he	had	to	pay	for	unforeseen	

repairs,	which	he	anticipated	would	cost	more	than	$10,000.		He	testified	that	

 2 Dorothy also	alleged	that	James	failed	to	comply	with	the	divorce	judgment	in	two	other	ways.	

The	parties	resolved	those	issues,	and	they	are	not at	issue	in this	appeal.	
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he	 had been	 receiving the	 entire	 $800	 in	 monthly	 rental	 income	 since	

approximately	April	2015, and that	he	owned assets including	real	estate and	

accounts	that	by	themselves	had	a	value	that exceeded the	arrearage claimed	

by	Dorothy.

[¶7]	 The	 court	 (Raimondi,	 J.)	 found	 that	 the	 settlement	 agreement	

incorporated	 in	 the	 divorce	 judgment	 is	 “plain	 on	 its	 face”	 and	 “clear[ly]”	

requires James to	pay	$378.50	of	the	rental	income	to	Dorothy, but that	James	

had	 simply	 stopped	 making	 the payments. Despite	 these	 findings	 and	 the	

court’s determination	that James	had	the	present	ability	to	pay	the	arrearage,	

however,	the	 court	 explicitly	 declined	 to	 find	 James	in	 contempt.	 The	 court	

explained	 that	 because	 the	 parties	 were	 unrepresented	 at	 the	 time	 of	 the	

divorce and	because,	as	a	result,	 their	agreement	was	“silent	on	a	number	of	

points,”	 it would	 give	 James	 “the	 benefit	 of	 the	 doubt.”	 Important	 to	 this	

appeal, the	court	stated	at	the	hearing	that	had	James	been	represented	at	the	

time	 of	 the	 divorce,	 “there	 would	 be	 no	 question	 . . .	 [it]	 would	 find	 him	 in	

contempt.”	 The	court	ordered James	to	pay	Dorothy	$4,163.50,	representing

eleven	months	of	missed	payments, within	thirty days	of	the	date	of	the	order,	

with	execution	to	issue; and $152.09	in	costs,	to	be	paid	within fourteen days	
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of	the	date	of	the	order.	 James	timely	appealed.		See 14	M.R.S.	§	1901	(2016);	

M.R.	App. P. 2(b)(3).

II.		DISCUSSION

[¶8]	 	 James	 asserts	 that	 the	 court	 was	 without	 authority	 to	 grant	

Dorothy	any	relief	whatever	after	denying	her	motion	for	contempt.	 Given	the	

particular	circumstances	of	this	case,	we	disagree.

[¶9]	 	“For	 a	 court	 to	 find	 a	 party	 in	 contempt,	 the	 complaining	 party	

must	establish	 by	 clear	and	 convincing	 evidence	 that	 the	 alleged	 contemnor	

failed	or	refused	to	comply	with	a	court	order	and	presently	has	the	ability	to	

comply	with	 that	 order.”	 	Murphy	 v.	Bartlett,	 2014	ME	 13,	¶	 9,	 86	A.3d	 610;	

see also M.R.	 Civ.	 P.	 66(d)(2)(D).	 	 As	 a	 remedy	 for	 contemptuous	 conduct,	 a

court	may	impose	a	variety	of	sanctions	designed	to	coerce	compliance	or	to	

compensate	the	aggrieved	party.	 See	M.R.	Civ.	P.	66(a)(2)(C),	(d)(3);	Murphy,	

2014	ME	13,	¶	16,	86	A.3d	610.		Contempt	sanctions	may	include entry	of	a	

“judgment	in	 favor	 of	 the	 person	aggrieved	 for	a	 sum	 of	money	 sufficient	 to	

indemnify	 the	 aggrieved	 party”	 and	 to	 satisfy	 that	 party’s	 costs,	 “including	

reasonable	 attorney	 fees.”	 	 M.R.	 Civ.	 P.	 66(d)(3)(C)	 (identifying	 a	

“[c]ompensatory	 [f]ine”	 as	 one	 type	 of	 remedial	 sanction).	 	 The	 court’s	

remedial	 order requiring	 James	 to	 make	 Dorothy	 whole	 for	 his	 failure	 to	
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comply	 with	 the	 payment	 obligation	 created	 by	 the	 divorce	 judgment falls	

well	within	what	Rule	66	would	authorize.

[¶10]	 Although	 the	court	denied	Dorothy’s	contempt	motion, it stated	

that	“there	would	be	no	question”	that	it	would	have	found	James	in	contempt	

had	he	been	 represented	at	 the	 time	of	 the	divorce.	 Because	unrepresented	

parties	are	not	entitled	to	special	consideration,	see	Ezell	v.	Lawless,	2008	ME	

139,	¶	22,	955	A.2d	202,	this	was	an	improper rationale	for	the	court	to	deny	

Dorothy’s	 motion.3 The	 court’s	 statement demonstrates,	 however, that	 it

determined that	 Dorothy	 had proved	 contempt	 by	 clear	 and	 convincing	

evidence,	 because	 the	 only reason	 the	 court	 denied	 her	 motion	 was	 James’s

unrepresented	status	when	 the	divorce	judgment	was	issued.	 See supra	¶	7.

The	court	 thus	implicitly	but	necessarily	concluded	 that	Dorothy	had	proved	

the	elements	 of	 her	 contempt	motion,	even	 though	it	 nominally	 did	 not	 find	

James	in	contempt.

[¶11]	 	 Accordingly,	 James	 was	 not	 prejudiced by	 the	 court’s	 order	

providing Dorothy	 with a remedy	 that	 was	 within	 the	 court’s Rule	 66	

 3 Despite	the	court’s	error,	Dorothy	is	not	entitled	to	a	remand	 for	entry	of	an	order	expressly	

finding	 James	 in	 contempt because she	 did not	 appeal	 from	 the	 court’s	 denial	 of	 her	 contempt	

motion.	 	 See	 U.S.	 Bank	 Trust,	 N.A.	 v.	 Mackenzie,	 2016	 ME	 149,	 ¶	 8,	 149	 A.3d	 267 (stating	 that	 a	

cross-appeal	is	necessary	if	an	appellee	wishes	to	modify	a judgment	in	a	way	that	is	different	from	

the	 change	 sought	 by	 the	 appellant);	 Alexander,	 Maine	 Appellate	 Practice §	 2.7(a)	 at	 39	

(4th ed. 2013).
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authority but	that,	as	shown	by	the	court’s	reasoning,	it	erroneously	failed	to	

invoke.		Given these	unique	circumstances,	the	court	did	not	err	by	issuing	an	

order	enforcing	James’s	liability	to	Dorothy.

The	entry	is:

Judgment affirmed.

Anthony	A.	Trask,	Esq.,	Rudman	Winchell,	Bangor,	for	appellant	James	A.	Black

Joseph	W.	Baiungo,	Esq.,	Belfast,	for	appellee	Dorothy D. Black

Belfast	District	Court	docket	number	FM-2012-78

FOR	CLERK	REFERENCE	ONLY