Cushman v. Cushman

495 A.2d 330, 1985 Me. LEXIS 763
CourtSupreme Judicial Court of Maine
DecidedJuly 11, 1985
StatusPublished
Cited by20 cases

This text of 495 A.2d 330 (Cushman v. Cushman) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cushman v. Cushman, 495 A.2d 330, 1985 Me. LEXIS 763 (Me. 1985).

Opinion

NICHOLS, Justice.

On this appeal we confront once again the problems facing the judge in an action for divorce when the parties have failed to present complete evidence as to their assets, yet look to the judge somehow to fashion from the fragmentary information given him a division of marital property that is both just and complete.

Here the Plaintiff, Pamela Darling Cush-man, appeals from a judgment of divorce entered by the Superior Court (Cumberland County), not the granting of the divorce *332 from the Defendant, Thomas Spaulding Cushman, but upon what she contends was an error in the division of property and upon the failure of the divorce court to award alimony. We deny her appeal.

The marriage on August 6, 1976, was a second one for both parties. Although no children were born of this marriage, each has children by their respective prior marriages. At the time of this marriage the husband was employed as a teacher at Thornton Academy in Saco, but the wife was not working full-time.

At about the time of their marriage, the parties purchased a home in Cape Elizabeth as joint tenants. In 1978 they sold this home and used the proceeds to purchase another home in Yarmouth, which they have also held as joint tenants.

In 1977 the parties started a business known as “Pamela Cushman Antiques.” Although the parties operated this business so long as they lived together, the extent to which each participated in its operation is unclear. The wife testified that she ran nearly the entire operation. While conceding that the wife did most of the buying, the husband asserted that he put in substantial time transporting antiques, going to shows with his wife, and selling the antiques. Although the parties seem to characterize all of these items as business antiques, they used many of them in their home. When he moved out of the marital home in January, 1984, the husband took many antiques with him. Since that time the wife has operated the business on a limited basis.

In 1979 the husband had left his job at Thornton Academy and had become a family counselor. At around this same time the wife also became a family counselor. In addition to their antique business the parties operated a counseling practice out of their home. After their separation the wife continued to operate her practice out of the Yarmouth home, while the husband practiced out of his Portland apartment and out of a rented Yarmouth office. Prior to their separation, the counseling practice had been set up so that the wife was the husband’s employee. Social security payments were not made for the wife but were made for the husband.

In addition to the Yarmouth house, the parties at the time of the trial owned a camp in Greenville Junction, Maine, which they purchased after their marriage, financing this purchase through a loan from the husband’s parents. This camp also has been in their names as joint tenants. The parties stipulated that the net value of the Yarmouth house after payment of the mortgage was $79,800, and that the net value of the Greenville camp after payment of that mortgage was approximately $10,-000.

When the husband left the marital home in January, 1984, he took the Ford van, which had been used in the antique business, and, without informing his wife, loaded it several times with numerous items of personal property, including antiques, furniture, business records, files, boats, and camping gear. The husband took these items to his parents’ home in Waldoboro. At the time of trial the husband had some of these items in Waldoboro and some at his Portland apartment. While the husband kept the van, the wife kept the Peugeot station wagon; however, when she found that it was costing her too much to operate, she traded it in on a Jeep Cherokee.

At various times during their marriage, the parties had in their possession antiques and money which they had acquired from the Defendant’s father. The testimony as to whether certain items were gifts to both parties, gifts to the husband, loans to the couple, or items to be kept in storage for the husband’s father was confusing. The wife asserted essentially that all were gifts to both her and her husband. The Superior Court ultimately found that a certain antique “highboy” belonged to the Defendant’s father. The court apparently concluded that all other items received from the husband’s father became marital property.

*333 When the parties married the wife owned a furnished home in Castine, a new Peugeot automobile, and approximately $2,000 in cash. After the marriage, she sold her Castine home, netting therefrom approximately $30,205. She also sold most of the furniture from the Castine home. She testified that she netted between $3,000 and $4,000 from this sale of furniture and that she subsequently invested these proceeds in the antique business.

Shortly before the marriage the husband had about $7,400 in a bank account and approximately $4,800 in a retirement account. The parties disputed the precise amount the husband still had at the time of the marriage, and neither offered conclusive proof of those balances.

At the time of trial, there were many antiques which were part of the inventory of the antique business. The court ordered that an appraisal be conducted by a Skow-hegan appraiser, but, notwithstanding the order, this man was never given an opportunity to appraise all of them.

The wife alleged her husband did not bring forth some of the antiques in his possession for the appraisal. On her part, the wife did not permit the appraiser to see some of the items in her possession. At trial the parties sharply disagreed as to the value of many items, including some that had been evaluated by this independent appraiser, and submitted unsworn exhibits showing their respective opinions as to the values. The parties also disagreed as to which party had certain items in his or her possession.

On November 19, 1984, the divorce court granted Plaintiff a divorce from the Defendant on the grounds of irreconcilable differences, ordered division of marital property but declined to award alimony. The wife seasonably filed a motion for findings of fact and conclusions of law pursuant to M.R.Civ.P. 52(a); she also filed a motion to alter or amend the judgment and a motion for a new trial. On January 9, 1985, the divorce court filed findings of fact and conclusions of law, and subsequently denied the wife’s other motions. The Plaintiff wife now brings this appeal.

In the judgment dated November 19, 1984, the divorce court ordered in part:

That the Yarmouth house and the Green-ville Junction camp be sold, and the proceeds divided, after the respective mortgages and certain marital debts of the Defendant are paid.
That the parties keep the antiques and personal property currently in their possession.
That the IRA accounts and other bank accounts be set aside to the party in whose name the account was.
That the Jeep Cherokee be set apart to the Plaintiff and the Ford van to the Defendant.
That neither party shall be responsible for alimony.

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Bluebook (online)
495 A.2d 330, 1985 Me. LEXIS 763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cushman-v-cushman-me-1985.