Heather Keep v. Christopher Indorf

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2024 ME 14
Docket: Yor-23-59
Argued: October 4, 2023
Decided: January 31, 2024

Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.

HEATHER KEEP

v.

CHRISTOPHER INDORF

STANFILL, C.J

[¶1] Christopher Indorf appeals from a partition judgment entered by

the District Court (Biddeford, Tice, J.) dividing real estate he and Heather Keep

owned as joint tenants. Indorf argues that the court abused its discretion by

setting aside a partial settlement agreement placed on the record in an earlier

judicial settlement conference. Because we agree that the settlement

agreement was valid and enforceable, we vacate the judgment and remand for

the court to determine the meaning of the agreement and partition the property

accordingly.

I. BACKGROUND

[¶2] The following facts are taken from the record and the trial court

findings, which are supported by competent evidence in the record. See Low v.
2

Low, 2021 ME 30, ¶ 2, 251 A.3d 735. Keep and Indorf were unmarried domestic

partners and have one child together. In October 2015, they purchased a

residence in Saco as joint tenants for $345,000. Indorf contributed $37,327 of

his own funds for the down payment and closing costs; Keep did not contribute

any funds to the initial purchase. The remainder of the purchase was funded

with a loan secured by a mortgage on the property; both parties were liable on

the note and mortgage. When the parties purchased the property, they agreed

that in the event of a sale, Indorf would receive from any sale proceeds an

amount equal to his down payment before any funds were divided between the

parties.

[¶3] The relationship broke down and Keep moved out in May 2019, at

which point the home was valued at $377,000. Indorf stayed in the home and

assumed sole financial responsibility for it from that point forward. At the time,

the mortgage balance was $290,413.64. Keep incurred her own housing costs

after she moved out.

[¶4] Keep filed a complaint for equitable partition on May 9, 2019. The

parties also litigated a parental rights and responsibilities matter, a claim for

breach of contract regarding the down payment made for the house, and a small

claims case regarding personal property. Although never formally
3

consolidated, the four cases were jointly scheduled for a status conference

(Moskowitz, J.) on October 3, 2019. The status conference morphed into a

judicial settlement conference for all four causes of action.

[¶5] The parties did not settle everything, but they came to an interim

agreement in the family matter that Keep’s attorney read the into the record.

Then, after telling the court that the parties were “segueing over to the partition

matter,” Keep’s attorney stated,

The parties have agreed for valuation and division of any expenses
associated with the home, that it – they will use May 1st as the date
that Mr. Indorf had fully assumed all responsibility for the
residence. Likewise, Mr. Indorf will provide indemnification for
any construction on the house that’s presently occurring . . . . Mr.
Indorf will provide general information about the scope of
construction that’s currently happening at the house and the
expected end date.1

[¶6] While the partition action was pending, Indorf’s claim for breach of

contract, which concerned the down payment, was dismissed on Keep’s motion

for judgment on the pleadings. Indorf v. Keep, 2023 ME 11, ¶ 7, 288 A.3d 1214;

see M.R. Civ. P. 12(c). The contract action was then appealed to us. See Indorf,

2023 ME 11, 288 A.3d 1214. On January 31, 2023, we vacated the dismissal of

the contract action and remanded with instructions to the trial court “to use all

1 At some point after Keep moved out, Indorf’s mother moved into the home, and Indorf and his
mother began construction of an addition without Keep’s consent.
4

appropriate trial management tools and practices available to resolve any

remaining issues that were not addressed in its judgment entered in Keep’s

partition action.” Id. ¶¶ 11, 14.

[¶7] The partition action was set for trial on September 1, 2022, with the

contract action still pending before us. Before trial, Indorf moved to exclude

evidence of the property’s increase in value after May 1, 2019, based on the

October 2019 settlement agreement. The court denied the motion, deciding

that the parties could present evidence of the property value because the

existence of the agreement was at issue in the hearing.

[¶8] Following the September 2022 bench trial, the court (Tice, J.)

entered a final judgment in the partition action on December 9, 2022. Keep

filed a motion to correct a clerical error on December 20, 2022. That motion

was granted on December 21, 2022, and an amended judgment was entered the

same day. Indorf filed a motion to reconsider and a motion for amended and

further factual findings on December 22, 2022.

[¶9] On February 8, 2023, the partition court granted Indorf’s motions

in part, denied them in part, and entered a second amended judgment that

incorporated additional factual findings.
5

[¶10] The evidence at the partition trial showed that during the

pendency of the case, the home’s value increased dramatically, largely because

of the COVID-19 pandemic. In May 2019, the property was worth $377,000. By

July 2021, the property, which then included an $85,000 in-law suite, was

valued at $610,000. On the day of the hearing in 2022, the home was worth

$700,000, and the mortgage balance was $268,642.59. Indorf had made

$92,891.41 in mortgage payments between May 2019 and August 2022.

[¶11] The contract and partition actions both raised the issue of whether

there was any agreement concerning reimbursement of the down payment.

Because the contract action was still pending on appeal, the partition court

decided the questions regarding the existence and scope of the parties’

agreements regarding the down payment and division of the real estate. The

court first found that Indorf agreed to fund the purchase of the property with

his own funds only “with the understanding that he would get the money back

in the event the home was sold. . . . Therefore, the court credit[ed] [Indorf] with

the $37,327.00” down payment. 2

2 Although the court relied on McCracken v. McCracken, 617 A.2d 1034 (Me. 1992) to make the
finding that the down payment agreement exists, Keep and Indorf were not married, and the property
was not marital property. Thus, there was no gift presumption for Indorf to overcome. Cf. id. at 1035
6

[¶12] The court further found that the parties had a second agreement:

As a result of the judicial settlement conference, the parties put on
the record with the court (Moskowitz, J.) an agreement that for
valuation and division of any expense associated with the home,
the parties would use the May 2019 property valuation,
Defendant’s sole possession and financial responsibility of [the
property] began May 1, 2019 and Defendant would provide
indemnification for any construction on the house that was
occurring (i.e. the construction for the mother-in-law suite).
Defendant executed an indemnification agreement on August 11,
2020, 10 months after the judicial settlement agreement.

The court further found that this agreement was fair and reasonable for some

purposes but was also missing terms and “lack[ed] specificity and [was]

ambiguous.”3

[¶13] Rather than resolve any ambiguity, the court relied on Cloutier v.

Cloutier, 2003 ME 4, 814 A.2d 979, to set aside the October 2019 agreement in

(“[A]n interspousal transfer of real estate during marriage creating a joint tenancy gives rise to a
presumption that a gift to the marital state was intended.”).

Instead, “joint tenants own equal undivided shares even though their initial contributions may
have been unequal.” Bradford v. Dumond, 675 A.2d 957, 961 (Me. 1996). Despite the equal shares,
the parties have freedom to contract, and the court did not err in finding that they did so here. There
is competent evidence in the record to support the court’s finding that they entered into a contract
regarding the down payment. Thus, the court did not err in finding that the parties agreed that Indorf
would receive his down payment “first out” in the event of a sale or in crediting him for his
contribution in the partition action.

3 There is some inconsistency in the court’s findings. The court stated the agreement “lacks
sufficiently definite terms to be enforceable,” which could mean the agreement fails in its entirety.
See Doe v. Lozano, 2022 ME 33, ¶ 13, 276 A.3d 44. However, the court also stated that some terms
are clear and ultimately refused to enforce the agreement on the ground that it was unfair, rather
than finding that no agreement was reached.
7

its entirety, and decided the partition action without regard to the October

agreement. Ultimately, after accounting for Indorf’s payment of the down

payment and making the mortgage payments since May 2019, together with

the increase in value because of the addition, the court found that Keep was

entitled to be paid $143,084.98 in equity and ordered Indorf to refinance the

property and buy Keep out in that amount or, if he was unable to refinance the

property, to sell the property and divide the proceeds accordingly.

[¶14] Keep then filed a motion on February 21, 2023, which, although

styled as a motion to alter or amend the judgment, requested that the court

consolidate, after the fact, the action for breach of contract with the partition

action given our opinion in Indorf v. Keep, 2023 ME 11, 288 A.3d 1214.

[¶15] On February 10, 2023, Indorf timely filed a notice of appeal from

the amended partition judgment. We granted a stay of the appeal to permit trial

court action on Keep’s pending motion; the trial court denied Keep’s motion in

an order entered on March 28, 2023.4 On April 12, 2023, Keep filed a notice of

appeal from the March 28 denial of her motion and a cross-appeal of the

February 8, 2023, amended partition judgment. We lifted the stay in this appeal

4 The contract action is stayed in the District Court pending the outcome of this appeal.
8

on April 13, 2023. On April 28, 2023, Indorf moved to dismiss Keep’s

cross-appeal as untimely.

II. DISCUSSION

A. Keep’s Cross-appeal is untimely and will be dismissed.

[¶16] Keep’s cross-appeal was filed after her second post-judgment

motion was denied, more than twenty-one days after the docketing of either

the judgment or the order on her motion to alter or amend the judgment.

Keep’s cross-appeal is timely only if her second post-judgment motion

extended the time limit for her to file an appeal. See M.R. Civ. P. 59(e);

M.R. App. P. 2B(c)(2).

[¶17] Successive Rule 59(e) motions that result in judgments that are

substantively altered may each extend the appeal period. See Elam v. S.C. Dep’t

of Transp., 361 S.C. 9, 18-19, 602 S.E.2d 772 (2004); Wright v. Preferred Rsch.,

Inc., 891 F.2d 886, 889 (11th Cir. 1990). Here, the judgment was substantively

amended on February 8, 2023, following Indorf’s motion to alter or amend the

judgment. Keep’s February 21, 2013, filing was titled “Motion to Alter or

Amend the Judgment,” citing M.R. Civ. P. 59(e). In fact, however, the motion

sought to consolidate the partition and contract actions. That is not a motion

seeking to alter, amend, or reconsider the judgment. See New Maine Nat. Bank v.
9

Nemon, 588 A.2d 1191, 1193 (Me. 1991) (stating that a post-judgment motion

is identified not by its caption but by its substance). Thus, Keep’s motion did

not extend the time for filing an appeal. See M.R. App. P. 2B(c)(2). As a result,

Keep’s cross-appeal is untimely. See M.R. App. P. 2C(a)(2), 2B(c)(2)(D); M.R.

Civ. P. 59(e).

[¶18] Because Keep’s cross-appeal is untimely, the court’s finding that

there were two agreements, the October 2019 agreement and the down

payment agreement, is not challenged on appeal.5 In deciding Indorf’s appeal,

our review is confined to whether the court erred or abused its discretion in

setting aside the October 2019 settlement agreement.

B. Because the court found that the parties had a settlement
agreement, the court erred in setting it aside on the basis that
enforcing it would be unfair.

[¶19] Indorf argues that the court abused its discretion by setting aside

the October 2019 agreement and contends that, having found that the parties

had entered into an agreement as set forth in the transcript, the court is

required to enforce it.

[¶20] “Settlement agreements are analyzed as contracts, and the

existence of a binding settlement is a question of fact.” Muther v. Broad Cove

5 Even if we were to reach the issue Keep raises in her cross-appeal, the court’s finding that there

were two agreements was supported by the record evidence.
10

Shore Ass’n, 2009 ME 37, ¶ 6, 968 A.2d 539. When parties “report to the court

that they have reached a settlement, read the terms of the agreement into the

record with the assistance of counsel, and then express clear consent to those

terms as recited, that settlement becomes an enforceable agreement and, upon

acceptance by the court, is incorporated as a judgment of the court.” Id. ¶ 7.

“We review the trial court’s findings of fact for clear error and affirm if there is

competent evidence in the record to support the judgment.” State v. Price-Rite

Fuel, Inc., 2011 ME 76, ¶ 18, 24 A.3d 81.

[¶21] “Whether the language of a contract is ambiguous is a question of

law that we review de novo.” Spottiswoode v. Levine, 1999 ME 79, ¶ 16, 730 A.2d

166 (quotation marks omitted). “A contract is ambiguous if it is reasonably

susceptible to more than one interpretation.” Madore v. Kennebec Heights

Country Club, 2007 ME 92, ¶ 7, 926 A.2d 1180.

[¶22] “The interpretation of an unambiguous writing must be

determined from the plain meaning of the language used and from the four

corners of the instrument without resort to extrinsic evidence.” Portland Valve,

Inc. v. Rockwood Sys. Corp., 460 A.2d 1383, 1387 (Me. 1983). “[W]hen the

contract language is ambiguous and the ambiguity does not disappear when

examined in the context of other provisions in the instrument, it is proper for
11

the factfinder to entertain extrinsic evidence casting light upon the intention of

the parties with respect to the meaning of the unclear language.” T-M Oil Co.,

Inc. v. Pasquale, 388 A.2d 82, 85 (Me. 1978) (citation omitted).

[¶23] Here, the court found that there was a settlement agreement

placed on the record in October 2019, and that finding is supported by the

evidence. The court also suggested that it was ambiguous. However, the court

did not resolve any ambiguity. Rather, it “set[] aside the $377,000.00 property

valuation because failing to do so would be unfair and inequitable given the

length of the parties’ contentious litigation, any Covid added court delays, and

the unforeseeability of the home nearly doubling in value.” As authority to set

aside the agreement, the court cited its general equity powers and its power as

described in Cloutier v. Cloutier, 2003 ME 4, 814 A.2d 979. In setting aside the

agreement, the court erred.

[¶24] In Cloutier, we stated,

The question presented is whether, and under what
circumstances, a judge may set aside a pretrial agreement between
parties to a divorce and award an item of property in contravention
of that agreement. Preliminarily, we note that the nature of the
proceeding is important to the analysis. This is not a general civil
matter where the parties are ordinarily free to enter into any
agreement so long as it is not coerced. Rather, this is a family
matter, where the court is called upon to exercise its authority in
equity, and may be required to act as parens patriae if children are
involved. . . . Thus a pretrial agreement between parties to a divorce
12

may be treated somewhat differently than a settlement in a civil
suit.

2003 ME 4, ¶ 7, 814 A.2d 979. We specifically noted that the Cloutiers’

mediated agreement to sell the marital home had not been placed on the record

or approved by the court. Id. ¶ 8. We clearly limited the ability to set aside an

otherwise enforceable agreement to the family matter context, and in

particular when it would have a substantial detrimental effect on the children.

Id. ¶¶ 11-13.

[¶25] In contrast, the matter before the court here was a civil partition

claim, not a family matter. Keep and Indorf were not married; neither Cloutier

nor general family law applied. In a general civil action, parties are free to enter

into an agreement, and a court cannot simply disregard that agreement because

it appears unfair in light of subsequent events.

[¶26] We conclude that although the parties entered into an enforceable

agreement, the language of the settlement agreement was ambiguous,

primarily because it is unclear whether the parties intended the May 2019

valuation to be conclusive in the trial of the partition action or for other

purposes. The court should therefore apply contract law to give force to the
13

agreement’s terms and it should consider extrinsic evidence to determine the

meaning of the agreement rather than setting it aside.

[¶27] We therefore remand for the court to determine the meaning of

the agreement and how it affects the partition.6 After applying the agreement

regarding the down payment and the agreement placed on the record in

October 2019, the court should divide the remaining equity between the two

parties to reflect their interests as joint tenants of the property. Bradford v.

Dumond, 675 A.2d 957, 961 (Me. 1996). In light of the common questions of

fact between the contract and partition actions, the court should consolidate

the matters on remand.

The entry is:

Judgment vacated. Remanded to the trial court
for proceedings consistent with this opinion.
Keep’s cross-appeal is dismissed as untimely.

Keith P. Richard, Esq. (orally), Archipelago, Portland, for appellant Christopher
Indorf

Pamela Holmes, Esq. (orally), Holmes Legal Group, LLC, Wells, for appellee
Heather Keep
Biddeford District Court docket number RE-2019-33
FOR CLERK REFERENCE ONLY

6 The court may reopen the record and take additional evidence if necessary. See In re Danielle S.,

2004 ME 19, ¶ 2, 844 A.2d 1148 (“The trial court has discretion in determining whether a party may
reopen its case after the close of evidence.”).