Levesque v. Levesque

1997 ME 166, 697 A.2d 1309, 1997 Me. LEXIS 168
CourtSupreme Judicial Court of Maine
DecidedJuly 23, 1997
StatusPublished
Cited by3 cases

This text of 1997 ME 166 (Levesque v. Levesque) 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
Levesque v. Levesque, 1997 ME 166, 697 A.2d 1309, 1997 Me. LEXIS 168 (Me. 1997).

Opinion

WATHEN, Chief Justice.

[¶ 1] Defendant Monique Levesque appeals from the judgment entered in the Superior Court (Androscoggin County, Delahanty, J.) dismissing1 her appeal from a divorce judgment entered in the District Court (Lewiston, Beliveau, J.) as untimely. Defendant contends on appeal that her motion to alter and amend the divorce judgment to change her name tolled the running of the appeal period, and that her notice of appeal to the Superior Court was timely if computed from the date of the order on her motion to amend. We conclude that defendant’s appeal was filed in a timely manner and we vacate the judgment of the Superior Court. In the interest of judicial economy, we consider and affirm the District Court’s denial of her motion to proceed informa pauperis.

[¶ 2] Plaintiff Richard Levesque and defendant were married in 1975. Three children were born of their marriage. On July 26, 1995, a judgment was entered in the District Court divorcing the parties, determining child custody and support issues, and dividing the marital property. It was determined that the parties would share parental rights and responsibilities concerning their minor children and that the primary physical residence of the children would be with the father. The mother was not ordered to pay child support. No alimony was awarded to either party. Title to the marital home was awarded to the father and he was ordered to pay the mother the value of her share of the property sixty days after their youngest child reaches sixteen or, if he sold the property before then, on the sale of the property.

[¶ 3] On July 28, 1995, the mother moved for findings of fact and conclusions of law regarding the court’s valuation of the couple’s real and personal property and its decision not to order the sale of the house until their youngest child reaches sixteen years of [1311]*1311age. On August 15,1995, the court issued its findings and conclusions. On August 23, 1995, the mother filed a motion “[p]ursuant to Rules 52(b) and 59(e), M.R. Civ. P.” to alter and amend the divorce judgment to “provide for the restoration of the Defendant’s maiden name of “Denis ... as authorized pursuant to 19 M.R.S.A. § 752(11).” This motion was granted on September 1, 1995.

[¶ 4] On October 2,1995, the mother filed a notice of appeal from the divorce judgment. On that same date, she filed a motion for a transcript at state expense. The court ordered the mother to file a financial affidavit in support of the motion. She filed an application to proceed in forma pauperis with a supporting affidavit. The District Court found that her appeal was frivolous and not made in good faith and it denied her motion to proceed in forma pauperis. It later denied her motion to reconsider this ruling.2

[¶ 5] The Superior Court refused to consider the merits of the mother’s appeal from her divorce judgment because her notice of appeal, filed on October 2, 1995, was not timely. The court concluded that her motion to amend the judgment to allow her to resume her maiden name “is not the type of motion contemplated under either Rule 59 or 52, M.R.Civ.P., which would toll the period of time in which an appeal must be filed.” The mother then filed a timely notice of appeal from the Superior Court’s judgment.3

I. The Timeliness of Defendant’s Appeal to the Superior Court

[¶ 6] The mother asserts that her motion to alter and amend the divorce judgment was properly made pursuant to M.R. Civ. P. 52(b). She contends that her notice of appeal to the Superior Court, filed within 30 days of the entry of the court’s order on her motion, is timely. The father contends that the mother’s motion to amend was not properly made pursuant to Rule 52(b) because it did not request an amendment of the court’s August 15 findings. He argues that the motion must be characterized as a Rule 59(e) motion, and as such, was untimely.

[¶7] It is undisputed that the mother’s motion, if it must be characterized as a Rule 59(e) motion, was untimely because it was filed over ten days after the entry of the judgment in question.4 It is also clear that the motion, if characterized as a Rule 52(b) motion, was timely. It was made within ten days after notice of the findings made by the court on August 15. Such a Rule 52(b) motion would have terminated the running of the appeal period until the entry of the court’s order granting the motion on September 1. M.R. Civ. P. 76D. If the period for appeal began to run on September 1, the mother’s notice of appeal, filed on October 2, was timely.

[¶ 8] M.R. Civ. P. 52(b) states in part:

(b) Amendment. The court may, upon motion of a party made not later than 10 days after notice of findings made by the court, amend its findings or make additional findings and, if judgment has been entered, may amend the judgment accordingly....

Contrary to the father’s assertion, relief may be granted pursuant to Rule 52(b) even when the parties have not requested findings pursuant to Rule 52(a)5 or have not explicitly requested the amendment of any particular [1312]*1312finding. As noted in Maine Civil Practice, “so far as most nonjury eases are concerned ... almost without exception any amendment of a judgment would first involve amendment of the court-made findings.” As a consequence, “[tjhe longer time period for seeking an amendment of a judgment in connection with amended findings causes Rule 52(b) for practical purposes to swallow up Rule 59(e)” in such cases. 1 Field, McKusick & Wroth, Maine Civil Practice, § 52.3 at 686 (2d ed. 1970); see also 2 Field, McKusick & Wroth, Maine Civil Practice, § 59.4a at 66 (in nonjury actions relief from a judgment under Rule 52(b) may still be available even though the time has passed for a Rule 59(e) motion) (citing Gosselin v. Better Homes, Inc., 256 A.2d 629 (Me.1969)); Id. at 65 (the functions of motions pursuant to Rules 52(b) and 59(e) overlap).

[¶ 9] In Gosselin v. Better Homes, Inc., 256 A.2d 629 (Me.1969), a judgment in the trial court permitted the plaintiff to redeem certain property if a designated sum was paid by January 1, 1968. The judgment was filed on December 29, 1967, but did not come to the attention of plaintiff until January 11, 1968. Plaintiff brought a motion praying for relief pursuant to M.R. Civ. P. 52(b). The trial court held that the motion, not having been made “after notice of findings” as contemplated by Rule 52(b), was properly to be considered an untimely Rule 59(e) motion. Id. at 631. We held that the trial court erred, stating that “fa]lthough it was labeled a motion to amend judgment in accordance with rule 52-B, meaning 52(b), the plaintiffs obvious purpose was to obtain an amendment of the implied finding of fact made by the court that the period from December 28, 1967 to January 1,1968 ... was a reasonable time for redemption.” Id. at 632. In the present case, the mother’s motion to amend the divorce judgment can similarly be viewed as a request that the court amend its findings, then consisting of its original findings and its August 15 findings, to add an additional finding that she was entitled to resume her maiden name.

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Bluebook (online)
1997 ME 166, 697 A.2d 1309, 1997 Me. LEXIS 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levesque-v-levesque-me-1997.