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Sanders v. Sanders5/6/1998
Reporter of Decisions
Argued: September 5, 1997
Herbert L. Sanders appeals from the judgment entered in the Superior Court (Cumberland County, MacNichol, J.) denying his motion to dissolve an ex parte order for trustee process pursuant to M.R. Civ. P. 4B(j). On appeal Herbert argues: (1) the court cannot issue an order for trustee process 30 months after final judgment; (2) even if such trustee process is available, Susan failed to present sufficient specific facts to carry her burden at the hearing on his motion to dissolve; (3) the court did not have personal and subject matter jurisdiction to issue the order; (4) the court erred in concluding that the proceeds of Herbert's disability policy were not exempt; and (5) the court's misstatement of fact in its order denying Herbert's motion to dissolve the trustee process rendered that order invalid. Finding no error we affirm the judgment below and remand to give Herbert the opportunity to establish the exempt status of a portion of the disability payments.
Herbert and Susan Sanders were divorced in California in December 1988. Pursuant to the divorce judgment Herbert was ordered to pay to Susan $26,000 in 13 monthly payments. Herbert left California and failed to make any of the payments. In 1993 Susan learned that Herbert had relocated to Maine and she filed suit in the Superior Court in Cumberland County to enforce the California judgment. Although Herbert now claims he established a new domicile somewhere in Georgia in the summer of 1993, he filed an answer and counterclaim in January 1994, without challenging the court's in personam jurisdiction. Herbert and Susan entered into a consent judgment in May 1994 whereby Herbert agreed to pay to Susan the arrearage plus accumulated interest. Herbert failed to make any payments under that judgment.
In 1996 Susan learned that Herbert had a disability insurance policy issued by Provident Life and Accident Insurance Company. In October 1996 Susan filed an ex parte motion for trustee process to attach benefits paid by virtue of the policy, which the court granted. Susan served the trustee summons on Provident through the Maine Superintendent of Insurance. In response Provident filed an affidavit stating that Herbert has a policy issued by Provident paying him $3,150 per month for life or until such time as he is no longer eligible to receive the disability payments.
Herbert filed a motion in January 1997 to dissolve the trustee process, claiming that the policy was a disability benefit exempt from trustee process, that Susan's affidavit in support of the motion for trustee process failed to provide specific facts that supported issuance of an ex parte order, and that trustee process was not available 30 months after final judgment.
The court denied Herbert's motion to dissolve the trustee process, finding that the principal and interest then owed to Susan by Herbert amounted to approximately $40,000, that Herbert was receiving disability insurance payments, and that the disability insurance payments were exempt only to the extent that Herbert could establish his reasonable need for them.
I. Post-judgment Trustee Process
Herbert conceded in his brief and at oral argument that trustee process may be used after judgment. He challenges only the time frame within which the court acted. Herbert has articulated, however, no principled reason why, if trustee process is available after judgment, 30 months is too long after judgment for it to issue. Any delay in the issuance of trustee process is attributable to Herbert's actions. He failed to make any of the payments required under the California judgment and fail
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