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Tarbuck v. Jaeckel, corrected 6-2-00

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 105 
Docket:		Ken-99-467	
Submitted
on Briefs:	February 8, 2000
Decided:	May 30, 2000

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

RICHARD H. TARBUCK

v.

EVELYN P. JAECKEL

DANA, J.

	[¶1]  Evelyn Jaeckel appeals from the judgment of the Superior Court
(Kennebec County, Atwood, J.) affirming the judgment of the District Court
(Augusta, Griffiths, J.) awarding interest on a child support arrearage it had
determined that Jaeckel incurred pursuant to a divorce decree.  The award
of interest followed a prior remand by the Superior Court (Marden, J.). 
Jaeckel argues on appeal that the District Court erred when it dismissed her
motion for relief from judgment and granted the motion of Jaeckel's ex-
husband, Richard Tarbuck, for enforcement of the parties' divorce decree. 
She also argues that the court erred when it failed to offset its judgment
with amounts Jaeckel claims are owed to her.  Finally, Jaeckel argues that
the District Court properly waived interest in its initial judgment and the
Superior Court's remand for an award of interest was error.  Although we
affirm the District Court's dismissal of Jaeckel's motion for relief from
judgment and its order enforcing the parties' divorce decree, including its
determination of Jaeckel's child support arrearage, we vacate the award of
interest and modify the judgment to reinstate the District Court's initial
waiver of interest.

I.  FACTS

	[¶2]  	Richard Tarbuck and Evelyn Jaeckel were married in 1965. 
They had two children together, Brian in 1970 and Leigh in 1972.  Tarbuck
and Jaeckel divorced in 1981.  Their settlement agreement was
incorporated into the divorce decree by the District Court.
	[¶3]  The settlement agreement provided for custody of the children,
child support and a division of the parties' property.  Pursuant to the
agreement, Jaeckel would have custody of the children and would receive
twenty dollars per week, per child from Tarbuck.  If the children resided
with Tarbuck, Jaeckel would pay the same amount per week, per child to
him.  The agreement also divided the parties' property between them as
follows:  Tarbuck was granted the marital residence in Pittston along with
the responsibility for the mortgage.  Jaeckel would retain a residence in
Huntington, Massachusetts that she had inherited from her family.  Three
other properties held by the couple, an additional property in Pittston, one
in Augusta and one in North Hampton, New Hampshire, would continue to
be held jointly.  The income from these properties would be shared and
either party could initiate the sale of one of the properties by giving ninety
days' notice to the other.  When one party initiated a sale, the other party
would have the right of first refusal to the purchase of the property.
	[¶4]  Shortly after the parties' divorce, Brian moved in with Tarbuck. 
Leigh continued to live with Jaeckel.  As a result, neither party paid the
other any child support.  In the fall of 1981, Jaeckel moved to the North
Hampton residence with Leigh by mutual agreement with Tarbuck.  Tarbuck
and Jaeckel disagree, however, over the terms of the arrangement.
	[¶5]  Jaeckel contends that she and Tarbuck agreed that she would
move into the house in North Hampton and take over the mortgage
payments.  That property would belong to her in exchange for Tarbuck
taking over financial responsibility for the Augusta and Pittston properties,
which he would then own.  They did not exchange any form of conveyance of
any of the properties, however.  Tarbuck maintains that he and Jaeckel
agreed that she would live in the North Hampton house and be responsible
for its expenses while he would take care of the other two properties, but
they did not agree that they would split the actual ownership of the
properties.  He explained that this arrangement was to facilitate visitation
for both parents and cut down on travel time.
	[¶6]  In March 1983, Leigh also moved in with Tarbuck.  Tarbuck
sought child support payments from Jaeckel, including initiating an action
through the State seeking to enforce the parties' divorce decree that
provided for the support.  He did not pursue the enforcement action,
however.  The parties eventually sold one of the jointly held properties in
July 1984.  Tarbuck kept the entire proceeds from the sale, which
amounted to $7377.  He testified that Jaeckel allowed him to keep the
proceeds because he was struggling financially and characterized it as a loan. 
Jaeckel testified that Tarbuck kept the proceeds because of their prior
arrangement and also noted that she did not intend that he keep the
proceeds in lieu of child support.
	[¶7]  In the fall of 1988, Tarbuck attempted to reinstate a child
support enforcement action through the State, but again, it was not pursued. 
In October 1989, Tarbuck sent Jaeckel a letter indicating that he wished to
sell the remaining two properties.  He also informed her that she had a
substantial child support arrearage.  Having received no response, Tarbuck
sent a listing agreement for the Pittston property seeking Jaeckel's
signature.  She refused to sign and the parties were unable to resolve the
disagreement.  In the spring of 1989, Jaeckel sent a letter to Tarbuck
offering to convey the Pittston property to him in exchange for the North
Hampton property.  Tarbuck did not accept this offer.
	[¶8]  Tarbuck again sought Jaeckel's cooperation in selling the
Pittston and North Hampton properties in 1994.  When she refused, he filed
a motion for child support arrearage that also sought enforcement of the
property division provision of the parties' divorce decree.  Jaeckel opposed
the motion and sought relief from the judgment of divorce pursuant to M.R.
Civ. P. 60(b)(5) and (6).
	[¶9]  Following a hearing on the matter, the District Court dismissed
Jaeckel's motion for relief from judgment as untimely and made an alternate
finding that she was not entitled to relief on the merits.  The court also
determined that Tarbuck had not waived his right to child support and
determined the amount of arrearage to be $9750.  The court did not award
interest on the arrearage, however, as Tarbuck had requested.  The court
did make a finding of contempt on the part of Jaeckel, though, determining
that she had a past ability to meet her child support obligations.   Finally, the
court ordered the sale of the two remaining jointly held properties.  The
court ordered that the proceeds from the sale be divided equally, finding
that Jaeckel had failed to establish that any increase to the fair market value
of the North Hampton property was due to improvements made by her.
	[¶10]  In response to a motion by Jaeckel for additional findings of
fact, the court found explicitly that Tarbuck and Jaeckel had not reached an
agreement on the transfer of ownership of the properties the couple held
jointly following the divorce.  The court also found that the expenditures
made by Jaeckel on the North Hampton house were attributable to
maintenance of the residence.
	[¶11]  Jaeckel appealed to the Superior Court and Tarbuck cross-
appealed.  The Superior Court vacated the finding of contempt and
remanded for additional findings of fact on the issue.  The court also
remanded to the District Court for an award of post-judgment interest on
the child support arrearage, noting that the statute governing post-judgment
interest mandated its award.  Because Tarbuck withdrew his request for a
finding of contempt, however, the District Court merely awarded post-
judgment interest on the arrearage.  Jaeckel again appealed to the Superior
Court.  The Superior Court determined that Jaeckel had waived the issue of
post-judgment interest before the District Court and, because it had
addressed the other issues raised by Jaeckel in its prior decision, denied
her appeal.  She then appealed to this Court.

II.  THE MERITS OF THE DISTRICT COURT JUDGMENT

	[¶12]  When the Superior Court acts as an intermediate appellate
court, we review the decision of the District Court directly.  See Beck v.
Beck, 1999 ME 110, ¶ 6, 733 A.2d 981, 983.  Jaeckel argues that the
District Court erred by dismissing her motion for relief from judgment and
by enforcing the property division in the divorce decree despite her
argument of promissory estoppel.{1}
	[¶13]  Rule 60(b)(5) and (6) of the Maine Rules of Civil Procedure,
governing motions for relief from judgment, provides:

On motion and upon such terms as are just, the court may
relieve a party or the party's legal representative from a final
judgment, order, or proceeding for the following reasons:  . . .
(5) the judgment has been satisfied, released, or discharged, or
a prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the judgment
should have prospective application; or (6) any other reason
justifying relief from the operation of the judgment.

Rule 60(b) also provides that motions brought pursuant to subsections (5)
and (6) should be brought "within a reasonable time."  M.R. Civ. P. 60(b).  We
review a denial of a motion for relief from judgment for an abuse of
discretion.  See Hamill v. Liberty, 1999 ME 32, ¶ 4, 724 A.2d 616, 618. 
"When the trial court has correctly understood the facts and the law
relevant to its analysis, we will defer to its ability to give weight to the
appropriate factors under the law, and will find an abuse of discretion only
where the court made a 'serious mistake' in weighing those factors."  Id.
(citing West Point-Pepperell, Inc. v. State Tax Assessor, 1997 ME 58, ¶ 7,
691 A.2d 1211, 1213).
	[¶14]  Jaeckel's motion for relief from judgment came fourteen years
after the divorce decree was filed and six and one half years after she first
became aware that there was a dispute regarding the ownership of the
properties.  The District Court's determination that these delays were
unreasonable was not an abuse of discretion.  Compare Zink v. Zink, 687
A.2d 229, 232 (Me. 1996) (dismissal of Rule 60(b)(6) motion as untimely
brought four years after judgment was not an abuse of discretion), with Scott
v. Lipman & Katz, P.A., 648 A.2d 969, 972 (Me. 1994) (court's
determination that Rule 60(b)(6) motion was timely when filed 364 days
after court accepted settlement was not an abuse of discretion).  Therefore,
the court did not err by dismissing her motion.
	[¶15]  Furthermore, we find no error in the court's assessment of the
merits of Jaeckel's motion for relief from judgment.  Jaeckel bore the
burden of demonstrating that the divorce decree should be set aside
pursuant to Rule 60(b).  See Beck, 1999 ME 110, ¶ 6, 733 A.2d at 983. 
Even assuming that the court accepted Jaeckel's representations that the
parties had subsequently modified their divorce decree by mutual
agreement, this does not necessarily require the equitable remedy of setting
aside an otherwise final judgment pursuant to Rule 60(b).  In Beck we found
that the court did not abuse its discretion by denying a husband's motion for
relief from his prior divorce judgment and noted, "[i]f [the parties] had
agreed to relieve [the husband] of his child support payments and
simultaneously relieve [the wife] of her mortgage payments, a court
modification of the divorce judgment to reflect that agreement should have
been sought."  Id. at ¶ 7, 733 A.2d at 984.  In this case, however, the court
explicitly found that Tarbuck and Jaeckel had not reached an agreement
altering the ownership of the property provided for in the settlement
agreement.  Therefore, the court's assessment of the merits of Jaeckel's
motion for relief from judgment did not exceed the bounds of its discretion.
	[¶16]  With respect to the court's decision to enforce the terms of the
divorce decree governing the property division between the parties, Jaeckel
argues that the court did not properly consider her claim of promissory
estoppel.  We have adopted the formulation of the equitable doctrine of
promissory estoppel found in the Restatement (Second) of Contracts:

A promise which the promisor should reasonably expect to
induce action or forbearance on the part of the promisee or a
third person and which does induce such action or forbearance
is binding if injustice can be avoided only by enforcement of the
promise.  The remedy granted for breach may be limited as
justice requires.

See Daigle Commercial Group, Inc. v. St. Laurent, 1999 ME 107, ¶ 14, 734
A.2d 667, 672 (citations omitted).
	[¶17]  The court found, however, that one of the essential elements,
i.e., a promise, was missing when it made its findings of fact in response to
Jaeckel's Rule 52 motion:

Subsequent to the divorce Plaintiff and Defendant held several
discussions concerning management of the respective parcels of
real estate resulting in an agreement that Plaintiff would manage
the properties in Augusta and Pittston, Maine, while Defendant
would manage the property located in North Hampton, New
Hampshire.  The parties did not reach an agreement as to the
transfer of said properties, however.

(Emphasis added.)  We review findings of fact for clear error and will affirm
unless there is no credible evidence in the record to support the findings. 
See Dowley v. Morency, 1999 ME 137, ¶ 13, 737 A.2d 1061, 1066-67.
	[¶18]  Although Jaeckel testified that there was such an agreement,
Tarbuck explicitly denied ever agreeing to give up his interest in the North
Hampton property in exchange for Jaeckel giving up her interests in the
Augusta and Pittston properties.  We give deference to a trial court's
determinations regarding credibility.  See Estate of Siebert, 1999 ME 156,
¶ 10, 739 A.2d 365, 368.  The District Court did not commit clear error by
rejecting Jaeckel's representations that Tarbuck had promised to give up
his interest in the North Hampton property and finding that the parties
never reached a separate agreement regarding the ownership of the
disputed properties.  The court's finding that there was no promise on
which Jaeckel could rely thereby foreclosed her argument of promissory
estoppel in defense to the enforcement action.  Therefore, we affirm the
judgment of the District Court enforcing the terms of the parties' divorce
decree.  Furthermore, because Jaeckel's arguments regarding the amount of
arrearage were raised for the first time on appeal, see footnote 1, supra, we
affirm the amount of child support arrearage awarded by the court.

III.  POST-JUDGMENT INTEREST

	[¶19]  Jaeckel also argues that the District Court's initial waiver of
interest was proper, that the Superior Court's order remanding the District
Court's judgment with a mandate to award interest was error and that the
District Court's subsequent order pursuant to that mandate was error.  We
agree.
	[¶20]  In addition to seeking enforcement of the parties' property
division and the child support arrearage that had accrued, Tarbuck also
specifically sought an award of interest on the arrearage.  Title 14, section
1602-A, which governs interest on judgments, provides:

From and after the date of entry on an order of judgment,
including the period of the pendency of an appeal, interest shall
be allowed at a rate:

	. . . For actions in which the damages claimed or awarded
do not exceed the jurisdictional limit of the District Court set
forth in Title 4, section 152 [$30,000], of 15% per year . . . .
. . . .

	. . . On petition of the nonprevailing party and on a showing
of good cause, the trial court may order that interest awarded by
this section shall be fully or partially waived.

14 M.R.S.A. § 1602-A (Supp. 1999); see also Allen v. Allen, 629 A.2d 1228,
1230 (Me. 1993) (noting that the right to payment of child support becomes
vested as the support comes due and one fixed rate of interest applies to
that amount starting at that time).
	[¶21]  Although not well articulated or clearly presented, Jaeckel
argued in both her responsive pleading and in her written closing argument
to the District Court that interest should not be awarded.{2}  In her written
final argument, Jaeckel argued to the District Court that it should not award
interest because there had been such a long delay in Tarbuck's enforcement
action.  Cf. Austin v. Austin, 2000 ME 61, ¶¶ 9-10, 748 A.2d 996, 1000 
(requesting that court not "penalize" him for wife's dilatory conduct in
enforcing property division constituted a sufficient petition for waiver of
interest on the part of the husband).
	[¶22]  In its first order, the District Court otherwise granted the relief
Tarbuck sought, but did not award him post-judgment interest.  The
Superior Court remanded the judgment to the District Court with a mandate
that there be an award of interest, indicating that the statute governing
post-judgment interest states that interest "shall be allowed."  The District
Court entered a judgment consistent with this mandate and the Superior
Court then affirmed.  Jaeckel argues that the District Court did not abuse its
discretion by initially waiving post-judgment interest and that the Superior
Court erred as a matter of law when it determined that the award of interest
is mandatory.  Therefore, she argues, the subsequent order of the District
Court awarding interest pursuant to the Superior Court's mandate was error.
	[¶23]  As a preliminary matter, we note that the issue of whether the
District Court's initial waiver of interest was an abuse of discretion is
properly before us.  A party may only appeal from a Superior Court judgment
ordering remand if the remand merely requires that the court address a
procedural matter or a matter ancillary to the issue on which review is
sought.  See Wheeler v. Maine Unemployment Ins. Comm'n, 477 A.2d 1141,
1145 (Me. 1984).  Otherwise, a Superior Court judgment ordering remand
is interlocutory and, therefore, not appealable.{3}  See, e.g., Gagnon v. Allstate
Ins. Co., 635 A.2d 1312, 1314 (Me. 1994) (dismissing appeal and
determining that Superior Court's judgment remanding to District Court
was interlocutory); Harris Baking Co. v. Maine Employment Sec. Comm'n,
457 A.2d 427, 428 (Me. 1983) (determining consent judgment entered by
Superior Court remanding case to administrative agency was interlocutory
and not appealable); Inhabitants of Pittsfield v. Chandler, 457 A.2d 1122,
1122-23 (Me. 1983) (mem.) (dismissing appeal from Superior Court's
remand as interlocutory).  Because of the nature of the Superior Court's
remand in this case, Jaeckel could not have properly appealed to this Court
from its remand to the District Court and its determination that interest in
this case was mandatory.  The Superior Court had remanded both for an
award of interest and for further findings of fact on the issue of contempt.
	[¶24]  Additionally, although the Superior Court did not explicitly
retain jurisdiction with its remand as generally recommended, see Hanson
v. Hanson, 654 A.2d 424, 425 n.3 (Me. 1995); Harding v. Commissioner of
Marine Resources, 510 A.2d 533, 536 (Me. 1986); Sanborn v. Town of Eliot,
425 A.2d 629, 629 (Me. 1981), we have determined that when the Superior
Court remands specifically for findings of fact on a particular matter, it
implicitly retains jurisdiction, see Hanson, 654 A.2d at 425.  Although
Tarbuck ultimately withdrew his request for relief regarding the issue on
which the Superior Court requested findings of fact, the Superior Court did
not thereby lose its jurisdiction.  As a result, Jaeckel did not need to reargue
the issue of waiver of post-judgment interest the second time the case came
before the District Court in order to preserve it for appeal.  Cf. Hanson, 654
A.2d at 425 (holding that wife did not need to file a second notice of appeal
to the Superior Court following judgment entered on remand by District
Court in case in which Superior Court had retained jurisdiction on
remand).{4}
	[¶25]  Because we find that the District Court did not abuse its
discretion by waiving post-judgment interest in this case{5} and because we
find that the Superior Court erroneously determined that the statute
governing post-judgment interest requires its award in all cases, see 14
M.R.S.A. § 1602-A (Supp. 1999) (providing for waiver on showing of good
cause), we modify the portion of the judgment of the District Court awarding
interest pursuant to the Superior Court's mandate and reinstate the District
Court's initial waiver of interest.

	The entry is:
Judgment modified in accordance with the
opinion herein to delete the award of interest,
and as so modified, affirmed.