MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2017 ME 124 Docket: Wal

- 16

- 151 Submitted

On	Briefs: January	19 ,	2017 Decided: June	2 0 ,	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

. T he record reveals	 that	 the	 court
determined that	 Dorothy had proved	 that	 James	 was	 in	 contempt , but	 the court	denied	Dorothy’s	motion	 fo r	a	reason	that	was	erroneous. Given	these unusual	circumstances,	w e	conclude	that	the	court ultimately acted	within	its authority	 by	issuing	 an	 order requiring James to	 pay	Dorothy	 the	 arrearage2 owed to her and	 th at	 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	i ncorporates	a	written	settlement	agreement	that James	drafted	without	the	help	of	an	attorney. [¶ 3 ] T he judgment evenly	 divided the	 parties’	 assets,	 including bank accounts,	personal	property,	and several parcels	of	real	estate

. T he judgm ent also provides for	the equal division	of	the	parties’ ongoing income

. Relevant to	 this	 appeal, the judgment allocate s to	 each	 party	 his	 or	 her	 respective income	 from	 social	 security

— $45 5	 to	 Dorothy,	 and	 $812	 to	 James

— and
allocates $378 .50 in	 “[a] partment	 incom e”	 to	 Dorothy

. The	 parties	 do	 n ot dispute	 that	 the	 apartment	 i s	 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 i s	required	to	pay	$378 .50 of that amount to	Dorothy
each	month

. 1

1 The	 divorce	jud gment	 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.”3 [¶ 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 requir ed	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
repre sented	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 s topped	making the payments because	a	te nant	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 D orothy 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

.4 he	 had b een	 receiving the	 entire	 $800	 in	 monthly	 rental	 income	 since approximately	April	2015 , and that	he	owned assets inclu ding	real	estate and

a ccounts that	by	themselves	had	a	value	that exceeded the	arrearage claimed by	Dorothy

. [¶ 7 ] T he	 court ( Raimondi,	 J. ) found	 that	 the settlement	 agreement incorporated	 in	 the	 divorce	 judgment i s	 “plain	 on	 it s	 face”	 and	 “clear[ly]” requires James to	pay	$378.50 of	the	rental	income	to	Dorothy , but that	James
had simpl y	 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	 unreprese nted	 at	 the	 time	 of	 the
divorce and	because ,	as	a	result,	 their	agreement	was	“s ilent	on	a	number	of points,” it would	 give James	 “the	 benefit	 of	 the	 doubt. ” Important	 to	 this appeal, t he	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 order ed 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 days5 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	 convinci ng	 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	 contemptu ous	 conduct, a

cour t	may	impose	a	variety	of	sanctions	designed	to	coerce	compliance	or to compensate	the	aggrieved	party. S ee 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, “ inc luding reasonable	 attorney	 fees. ” M.R.	 Civ. P

. 66(d)(3)(C)	 (identifying	 a

“ [ c ] ompensatory [ f ] ine”	 as	 one	 ty pe	 of	 remedial	 sanction). The	 court’s
remedial	 order requiring	 James	 to	 make	 Dorothy	 whole	 for	 his	 failure	 to6 comply	 with	 the payment obligation created	 by	 the	 divorce	 judgment falls
well	within	what	Ru le	66	would	authorize. [¶1 0 ] Although	 t he	court	deni ed	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	 th e 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. [¶1 1 ] Accordingly, James was	 not	 prejudiced by the	 court’s	 order providing Dorothy	 w ith 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	ex pressly finding	 James	 in	 contempt b ecause 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 (4 th ed. 2013).7 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 F OR C LERK R EFERENCE O NLY