John C. McGarvey v. Susan L. McGarvey

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 40
Docket: Cum-18-412
Submitted
On Briefs: February 20, 2019
Decided: March 12, 2019

Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.


JOHN C. MCGARVEY

v.

SUSAN L. MCGARVEY


JABAR, J.

[¶1] Susan L. McGarvey appeals from a judgment of the District Court

(Portland, J. French, J.) denying her motion to modify a divorce judgment

between her and John C. McGarvey and her motion to reconsider that denial.

She argues that the court erred by determining that there were no substantial

changes in circumstances sufficient to justify a modification of the divorce

judgment. We affirm the court’s judgment.

I. BACKGROUND

[¶2] John and Susan were divorced in February 2007 by a judgment

entered by the District Court (Powers, J.). The judgment conferred shared

parental rights and responsibilities as well as shared primary residence for the

parties’ two children.
2

[¶3] In July 2016, John filed a motion to modify the divorce judgment. A

hearing was held on John’s motion in March 2017, but Susan failed to appear.

The court granted John’s motion to modify, awarding him primary residence of

the parties’ daughter, as well as allocating him most parental rights and

responsibilities and ordering Susan to pay child support.1 Susan subsequently

moved for the court to set aside the judgment, arguing that she had not been

given adequate notice of the hearing. The court (J. French, J.) denied the motion,

and we affirmed. See McGarvey v. McGarvey, Mem-17-83 (Oct. 5, 2017).

[¶4] Following our affirmance, Susan filed a motion to modify the court’s

judgment, which the District Court denied after finding that there were no

substantial changes in circumstances warranting a modification of the divorce

judgment. Susan moved for the court’s reconsideration of its judgment, which

the court also denied. Susan timely appealed.

II. DISCUSSION

[¶5] On appeal, Susan’s sole argument is that the court erred by finding

that there were no substantial changes in circumstances justifying a

modification of the divorce judgment. See 19-A M.R.S. § 1657 (2018). However,

1
The parties’ other child had reached the age of eighteen prior to the entry of the court’s
judgment.
3

because Susan failed to provide us with a transcript of the hearing on her

motion to modify, we must assume that the court’s findings are supported by

competent evidence in the record. See Springer v. Springer, 2009 ME 118, ¶¶ 2,

8, 984 A.2d 828 (“The appellant bears the burden of providing an adequate

record upon which the reviewing court can consider the arguments on

appeal.”). Based on the court’s findings, we can discern no error in the court’s

judgment denying Susan’s motion to modify.

[¶6] In his brief, John requested that we impose sanctions on Susan for

pursuing a frivolous appeal. Although we agree that the pursuit of “an appeal

without an adequate record is an unproductive exercise” that “wastes the

resources of other parties as well as the court,”2 id. ¶ 9, the Maine Rules of

Appellate Procedure require that a party seeking the imposition of sanctions

file a separate motion requesting sanctions, M.R. App. P. 13(f); a request for

sanctions stated only in a party’s brief is not sufficient, see Alexander, Maine

Appellate Practice § 13.6 at 196 (5th ed. 2018) (“A request for sanctions stated

only in a brief is not sufficient to trigger imposition of sanctions pursuant to

2 Although Susan is unrepresented in this appeal, we have consistently stated that
“self-represented litigants are held to the same standards as represented parties.” Edwards v.
Campbell, 2008 ME 173, ¶ 11, 960 A.2d 324 (alteration omitted) (quotation marks omitted).
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Rule 13(f).”). Because John failed to file a separate motion requesting sanctions,

we must deny his request.

The entry is:

Judgment affirmed.



Susan L. McGarvey, pro se, appellant

David S. Turesky, Esq., Portland, for appellee John C. McGarvey



Portland District Court docket number FM-2005-1035
FOR CLERK REFERENCE ONLY