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MAINE SUPREME JUDICIAL COURT                                                               Reporter of Decisions

Decision:       2005 ME 19

Docket:         Pen-04-299

Submitted

  On Briefs:   December 8, 2004         

Decided:       January 28, 2005

Panel:            SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, and CALKINS, JJ.

CLAUDIA LOWD

v.

ANTONIOS DIMOULAS

DANA, J.

[¶1]  Antonios Dimoulas appeals from a judgment of divorce and child support entered in the District Court (Bangor, Russell, J.) contending that the court erred in (1) deviating from a partial property distribution agreement; (2) granting primary residence for the parties' children to Claudia Lowd; (3) calculating the parties' income for child support; and (4) deviating from a visitation agreement.  Because we agree with Dimoulas's first contention, we vacate the judgment and remand for further hearing.  Regarding his remaining contentions, the court did not err in its allocation of parental rights and responsibilities, see Costa v. Vogel, 2001 ME 131, ¶ 4, 777 A.2d 827, 828, there was no agreement regarding visitation, and the court did not err in calculating the parties' income, see Lee v. Maier, Jr., 1999 ME 62, ¶ 6, 728 A.2d 154, 156.

I. BACKGROUND

         [¶2]  In early 2003, Claudia Lowd and Antonios Dimoulas filed for divorce based on irreconcilable marital differences.  At trial, the parties testified that they had agreed to sell a property on Hammond Street in Bangor, and divide the proceeds.  The court found that the property was worth $310,000 and was subject to a $250,000 mortgage.  The parties had not agreed to the distribution of their remaining property, which included other real estate as well as personal property.

[¶3]  The court acknowledged that the parties had asserted an agreement about the distribution of the Hammond Street property.  The court recognized that courts are cautioned not to deviate from such agreements.  It found, however, that the agreement only dealt with a single piece of property, complicating the remainder of the division.  It also found "that the sale of [the] property and the management of the property pending sale would likely cause further friction and disputes between the parties."  As a result, the court chose to deviate from the agreement by allocating the Hammond Street property exclusively to Lowd.  This timely appeal followed.

[¶4]  While this appeal was pending Dimoulas filed a motion for remand, which we granted.  A motion to correct the record and for reconsideration ensued.  The only notice that the court gave the parties that it had not accepted their agreement was in the judgment.  Dimoulas argued that the property housing his business and allocated exclusively to him, the Market Caf