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Melanson v. Matheson
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:	1998 ME 117
Docket:	Pen-97-605
Submitted
on Briefs:	April 16, 1998
Decided:	May 21, 1998

Panel:  	WATHEN, C.J., and CLIFFORD, RUDMAN, LIPEZ, and SAUFLEY, JJ.

THERESA MELANSON

v.

EDWARD A. MATHESON

RUDMAN, J.

	[¶1]  Edward A. Matheson appeals from the judgment entered in the
Superior Court (Penobscot County, Alexander, J.) affirming the order of the
District Court (Bangor, Russell, J.) denying Matheson's motion for post-
judgment relief in which he sought to reduce his alimony obligations in light
of his retirement and corresponding reduction of income.  The District
Court erred by failing to consider Matheson's entire pension income in
determining whether he was entitled to a reduction of his alimony
obligation.  Because, however, we agree with the result reached by the
District Court, and affirmed by the Superior Court -- that Matheson is not
entitled to a reduction of his alimony obligation -- we affirm the judgment. 
See Baybutt Constr. Corp. v. Commercial Union Ins. Co., 455 A.2d 914, 917
(Me. 1983) ("[w]here the trial court's ultimate conclusion is correct in law,
it must be sustained on appeal, although its conclusion may have been
reached by an incorrect process of legal reasoning").
	[¶2]  Edward A. Matheson and Theresa Melanson were divorced on
November 8, 1991.  Pursuant to the divorce judgment entered in the
District Court (Bangor, Studstrup, J.), Edward was ordered to pay Theresa
$8,300 as her share of the parties' marital property and $400 a month in
alimony.  In the course of dividing the marital property, the court had
determined the value of Edward's state pension to be $15,515.22, of which
approximately $10,000 was attributable to increases in value during the
marriage.  The court ordered Edward to pay Theresa half of this
appreciation as part of the property division, a sum representing her share
of this marital asset.
	[¶3]  Shortly thereafter, Edward retired from his employment with
the State and sought, via a motion for post-judgment relief, a reduction in
his alimony obligation.  His motion was denied by the District Court (Bangor,
Russell, J.) and he appealed to the Superior Court, contending that the court
should not have considered the portion of his income derived from his state
pension in determining whether he was entitled to a reduction in his
alimony obligation.  Edward argued that the court's consideration of the
income produced by his state pension constituted a de facto post-judgment
modification of the marital property division.{1}  The Superior Court
(Penobscot County, Marden, J.) held that Edward's monthly income
generated by "that portion of the [pension] . . . for which [Theresa] has, at
the time of the judgment, received her share . . . [should not be considered] 
as available as [a] source of income" and remanded the case to the District
Court.
	[¶4]  On remand, the District Court reduced Edward's monthly
alimony obligation from $400 to $292.67, "in light of the conclusion of the
Superior Court that [Edward's pension] income . . . may not be taken into
account in determining a present alimony figure," although the Superior
Court had not ordered that the entire pension income be ignored, just the
portion of the pension subject to the marital disposition of property.  Both
parties appealed again to the Superior Court (Penobscot County, Mills, J.),
which clarified the original Superior Court order by explaining that the
District Court was only to ignore Edward's monthly income generated from
the portion of his pension "awarded to [Theresa] in the original divorce
judgment," not Edward's entire pension income.
	[¶5]  On remand, the District Court (Bangor, Russell, J.) denied
Edward's motion for post-judgment relief and ordered that his alimony
obligation remain at $400 a month as per the original divorce judgment. 
This order was affirmed by the Superior Court (Penobscot County,
Alexander, J.).  This appeal followed.
	[¶6]  When the Superior Court acts as an intermediate appellate
tribunal, we review directly the initial determination of the adjudicatory
body rather than the decision of the Superior Court.  See Williams v.
Williams, 444 A.2d 977, 978 (1982).  "Where the question is one of the
modification of alimony or support . . . [a]bsent a violation of some positive
rule of law, this Court will overturn the trial court's decision of such a
question only if it results in a plain and unmistakable injustice, so apparent
that it is instantly visible without argument."  See id. at 980.  The party
seeking a modification bears the burden of establishing a substantial change
in circumstances justifying the modification.  See Schultz v. Dellaire, 678
A.2d 46, 47 (Me. 1996) (citation omitted).  A court is not limited to a
consideration of the economic circumstances of the parties on the day of the
modification hearing, but may also consider earning capacity, future
prospects, and ability to pay.  See Finn v. Finn, 517 A.2d 317, 318 (Me.
1986).  	
	[¶7]	The Superior Court erred when it directed the District Court to
consider only part of Edward's pension income when it considered his
request for modification of his alimony obligation.  In its original divorce
decree, the District Court divided the value of Edward's state pension
attributable to increases during the marriage, awarding Theresa a share of
this marital asset.  Once the parties' marital assets were divided, the court
should have then determined whether either party should receive alimony
pursuant to the statutory criteria now found at 19-A M.R.S.A. § 951 (1998).{2} 
In determining alimony, the court considers, inter alia, all available sources
of income.  There is no distinction, for the purposes of determining
alimony, between income derived from property that has been divided in
the marital property division and other forms of available income -- the
court must consider all available income to either party, regardless of the
source.  Thus, the court erred in the instant case by treating Edward's
income derived from property subjected to the marital property division
(his pension) any differently from his other sources of income for the
purposes of determining alimony.  See, e.g., Gray v. Gray, 609 A.2d 694,
697-98 (Me. 1992) (court awards alimony based on income produced by
business divided as marital property); cf. Beattie v. Beattie, 650 A.2d 950,
951 (Me. 1994) (husband's military pension divided as marital property and
income resulting from husband's share included as income for alimony
purposes).
	[¶8]  Viewing the parties' respective incomes and estates, $400 per
month continues to be a reasonable amount of alimony for Edward to
provide.  The court's denial of Edward's motion seeking a reduction in his
alimony obligation cannot be said to be "plainly and unmistakably an
injustice that is so apparent as to be instantly visible without argument." 
Bryant v. Bryant, 411 A.2d 391, 395 (Me. 1980) (internal quotation omitted). 
Edward's other contentions on appeal are without merit.
	The entry is:
Judgment affirmed.  Remand for entry of attorney
fees on appeal. 
                                        Attorney for plaintiff: 

Martha J. Harris, Esq.
Paine, Lynch & Harris, P.A.
P O Box 1451
Bangor, ME 04402-1451

For defendant:

Edward A. Matheson
P O Box 1203
Bangor, ME 04402