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Nilsen v. Hanson
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MAINE SUPREME JUDICIAL COURT							Reporter of Decisions
Decision:	1998 ME 109
Docket:	Cum-97-355
Submitted
on Briefs:December 22, 1997
Decided:	May 14, 1998


Panel:         	WATHEN, C.J., ROBERTS, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.
Majority:			WATHEN, C.J., and ROBERTS, DANA, and LIPEZ, JJ.
Concurring : 		CLIFFORD, J. and RUDMAN, J.

DEBORAH NILSEN

v.

RICHARD HANSON

WATHEN, C.J.

	[¶1]  Defendant Richard Hanson appeals from a judgment entered in
the Superior Court (Cumberland County, Saufley, J.) affirming a divorce
judgment entered in the District Court (Portland, Bradley, J.). He argues,
inter alia, that the court erred in determining the marital status of a limited
partnership interest and the family residence.  Finding no error, we affirm
the judgment.
	[¶2]  This lengthy litigation may be summarized as follows:  plaintiff
Deborah F. Hanson, n/k/a Deborah F. Nilsen, and defendant Richard H.
Hanson were married in 1984 and had two children during their marriage. 
Deborah filed a complaint for divorce in 1992.  Judgment was entered in the
District Court in 1993, and Deborah appealed that judgment to the Superior
Court.  In 1994, the Superior Court vacated the judgment and remanded for
a new trial.  After a second trial, the present judgment was entered in the
District Court in 1996.  Richard then appealed and the Superior Court
affirmed the judgment.  He now appeals to this Court.
	[¶3] Richard first argues that the District Court erred in finding that
his limited partnership interest in Howard A. Goldenfarb Associates (HAG)
was marital property.  The partnership interest was valued at $1,000.  The
court's "determination of what property is marital or nonmarital is reviewed
for clear error, and will not be disturbed if there is competent evidence in
the record to support it."  Williams v. Williams, 645 A.2d 1118, 1119-20
(Me. 1994).  Property acquired during the marriage is presumed to be
marital property, 19 M.R.S.A. § 722-A(3) (1998), repealed and replaced by
P.L. 1995, ch. 694, § B-1 (effective October 1, 1997), codified as19-A
M.R.S.A. § 953(3), but that presumption can be overcome by a showing that
property was received in exchange for property acquired prior to the
marriage.  19 M.R.S.A. § 722-A(2)(B) (1998), repealed and recplaced by P.L.
1995, ch. 694, § B-1 (effective October 1, 1997), codified as19-A M.R.S.A. §
953(2)(B).  Richard presented testimony that he received the limited
partnership interest in exchange for a similar interest in Ram Development. 
This latter interest had been acquired by him prior to the marriage. 
Richard and others testified that, notwithstanding contrary documentation,
the transaction in substance involved an exchange of one partnership
interest for another.  The court did not clearly err in rejecting this
testimony and accepting the documentation.  Because of the statutory
presumption, the court did not err in finding that the limited partnership
interest in HAG was marital property.
	[¶4] The court divided the $1,000 value of the limited partnership
interest equally between the partners, but made no express provision for
payment.  Because the limited partnership interest could not be assigned
without the consent of the general partner, the court's division of the
interest must necessarily be read as requiring Richard to immediately pay
Deborah the value of the one-half interest, i.e. $500.
	[¶5]  Further, we find no clear error in the court's determination that
the family residence had a nonmarital component and a marital component
and that the marital component was in the amount of $29,385.  Richard
purchased the property and built a residence thereon prior to the marriage.
At the time of the marriage, the property had an outstanding first mortgage.
"Since mortgage payments were made during the marriage, the
presumption that the property was marital applies." Williams, 645 A.2d at
1122.  To overcome the presumption, Richard had the burden of proving
the nonmarital portion of the property.  Williams, 645 A.2d at 1122.   We
find no error in the court's calculation of the value of the marital interest by
subtracting from the present value of the property the current outstanding
first mortgage balance and the value of defendant's nonmarital interest in
the property at the time of the marriage. Williams, 645 A.2d at 1120.  Nor
do we find any error in the court's treatment of the second mortgage,
placed on the premises during the marriage.   Moreover, without evidence
concerning the basis for appreciation in the value of the home, Richard
failed to prove that the increased value was not marital.  Williams, 645 A.2d
at 1121 (citing Macdonald v. Macdonald, 532 A.2d 1046, 1050 (Me. 1987)).
Defendant's remaining arguments are without merit and require no
discussion.
	The entry is:
				Judgment affirmed.
					                                    

CLIFFORD, J., concurring, with whom RUDMAN, J., joins.

	[¶6]  Although I cannot disagree that the trial court applied the
provisions of 19 M.R.S.A § 772-A in a technically correct manner,
nevertheless, I write separately to state my concern that in litigating what
property is marital and what is nonmarital, too little significance is being
attached to former section 722-A(2)(E).  Former section 722-A now exists
as 19-A M.R.S.A. § 953 (1998).{1}  Section 953 provides, in pertinent part, as
follows:

§ 953.  Disposition of property
	
	. . . .

2.  Definition.  For purposes of this section, "marital property"
means all property acquired by either spouse subsequent to the
marriage, except:

. . . .

	E.  The increase in value of property acquired prior to the
	marriage.

3.  Acquired subsequent to marriage.  All property acquired by
either spouse subsequent to the marriage and prior to a decree
of legal separation is presumed to be marital property regardless
of whether title is held individually or by the spouses in some
form of coownership such as joint tenancy, tenancy in common,
tenancy by the entirety or community property.  The
presumption of marital property is overcome by a showing that
the property was acquired by a method listed in subsection 2.

Section 953(3) operates to raise a presumption that all property acquired
subsequent to the marriage is marital.  The increase in equity to theretofore
nonmarital property resulting from mortgage payments made during the
marriage is property acquired during the marriage and becomes marital
property.  Noyes v. Noyes, 617 A.2d 1036, 1038 (Me. 1992); Hall v. Hall,
462 A.2d 1179, 1181-82 (Me. 1983).  Similarly, increases in the value of
theretofore nonmarital property attributable to the use of marital funds, or
to marital effort invested in the property becomes marital, because those
increases are property acquired during the marriage within the meaning of
section 953(3).  Knowles v. Knowles, 588 A.2d 315, 317 (Me. 1991);
Macdonald v. Macdonald, 532 A.2d 1046, 1050 (Me. 1987).
	[¶7]  When there is an increase in the value of theretofore nonmarital
property during the marriage that is not attributable to marital funds or to
marital effort, that increase is not "property acquired . . . subsequent to the
marriage" within the meaning of section 953(3).  Rather, pursuant to
section 953(2)(E), it is nonmarital property because it represents an
increase in the value of property acquired prior to the marriage.  The
language of section 953(2)(E) reflects that we are not a community property
State, but are governed by principles of equitable distribution.  Salenius v.
Salenius, 654 A.2d 426, 429 (Me. 1995).{2}
	[¶8]  The Scarborough residence was purchased by Richard with
nonmarital funds prior to the marriage.  At the time of the marriage, the
property had a value of $120,000 and was subject to a first mortgage with an
outstanding balance of $74,890.  Thus, the nonmarital equity at the time of
the marriage was $45,110.  At the time of the divorce, the value of the
property had increased by $17,000 to $137,000.  Payments of $12,385 on
the first mortgage made during the marriage reduced the mortgage balance
to $62,505 and, coupled with the increase in the value of the property,
increased the equity by $29,385.  Although the $12,385 mortgage reduction
is properly credited to the marital estate, the court assigned the entire
$29,385 increase in the equity of the property to the marital estate, even
though, except for the $12,385 mortgage pay down, there was no evidence
of marital contribution or effort that could be said to be responsible for that
increase.  In Hall, we said that the value of otherwise nonmarital property
that is enhanced by the use of marital funds or marital effort becomes
marital, but only to the extent of that enhancement.  462 A.2d at 1182.
	[¶9]  It is not uncommon for real estate in growing communities such
as Scarborough to show substantial increases in value.  Here, in the absence
of any evidence of investment of marital funds or marital effort to improve
the property beyond the mortgage payments, it is likely that at least a
portion of the $17,000 increase in the value of Richard's property, resulted
from a higher real estate market, and accordingly, pursuant to 19 M.R.S.A
§ 722-A(2)(E) (now 19-A M.R.S.A § 953(2)(E)) would be credited to the
nonmarital estate.  Unfortunately for Richard, however, who represented
himself, he presented no evidence of increases in real estate market value. 
Accordingly, the presumption that any increase in the value of nonmarital
property is property acquired during the marriage requires that the trial
court's determination of marital property be affirmed.
                                      
For plaintiff:

Deborah F. Nilsen
87 Coach Lantern E
Scarborough, ME 04074

For defendant:

Richard H. Hanson
24 Winnocks Neck Rd.
Scarborough, ME 04074