Timothy Atkinson v. Elizabeth Capoldo

MAINE SUPREME JUDICIAL COURT                                   Reporter of Decisions

2021 ME 27

Docket:      Yor-20-245
  On Briefs: April 21, 2021
Decided:     May 6, 2021


                                TIMOTHY ATKINSON


                               ELIZABETH CAPOLDO


         [¶1] Timothy Atkinson appeals from a judgment of the District Court

(York, Moskowitz, J.) denying Elizabeth Capoldo’s motion to modify their

parental rights and responsibility as to their two children. Atkinson contends

that the court erred in denying his motion for attorney fees and his motion for

additional findings of fact as to the attorney fees. We vacate the judgment in

part and remand for the court to issue written findings regarding Atkinson’s

motion for attorney fees.

                                  I. BACKGROUND

         [¶2] On August 17, 2011, the New Hampshire 10th Circuit Court Family

Division (Portsmouth) entered a divorce and parenting plan for Atkinson and

Capoldo and their two minor children. On November 20, 2013, Atkinson filed

a complaint in Maine District Court (York) requesting a determination of

parental rights and responsibilities as to the parties’ two children, past child

support, and attorney fees. On March 13, 2014, the court granted Atkinson’s

request for registration of the child custody and support provisions of the

parties’ New Hampshire divorce judgment.

      [¶3] On March 25, 2019, Capoldo filed a motion to modify, claiming that

Atkinson physically and verbally abused the children while they were in his

care. She sought, among other things, sole parental rights and responsibilities.

Atkinson filed an answer denying the complaint and requested attorney fees.

On May 2, 2019, Capoldo filed a complaint for protection from abuse on behalf

of the children in District Court (York), and the court (Fritzsche, J.) issued a

temporary order.     On June 28, 2019, Capoldo voluntarily dismissed the

protection from abuse complaint, and the court (Mulhern, J.) terminated the

temporary order.

      [¶4] On March 9, 2020, the court (Moskowitz, J.) held a hearing on

Capoldo’s 2019 motion to modify. At the hearing, the court denied the motion,

stating that there was no proof of any substantially changed circumstances

because “Mr. Atkinson, as a matter of law, [was] allow[ed] to use a reasonable

amount of very minor force to parent a child and to discipline a child.” The

court also issued a written order denying the motion, finding “that the

allegations Ms. Capoldo [made] in her Motion to Modify are not only frivolous,

they are patently untrue. Most alarming, indications are that Ms. Capoldo knew,

or at least should have known, that her allegations were untrue.”

      [¶5] On March 18, 2020, Atkinson filed a motion for attorney fees and

attached supporting affidavits from his current and previous attorney detailing

the costs associated with litigating the motion to modify and defending the

protection from abuse action. See 19-A M.R.S. §§ 105(1), 4007(1)(L-1) (2021).

Capoldo did not file an objection to this motion.

      [¶6] On May 8, 2020, Atkinson filed a motion to modify parental rights

and responsibilities. The motion asked for interim relief and an expedited

hearing, contending that the mother was alienating the children from Atkinson,

and requested reasonable attorney fees. On July 6, 2020, the court held a

hearing on the motion. On July 10, 2020, the parties agreed to a stipulated

judgment that would be in place for forty-five days. The stipulated judgment

stated that if Capoldo successfully completed therapy, then Atkinson would

withdraw the request for attorney fees associated with his May 8 motion to

modify. The stipulated judgment referenced Atkinson’s March 18 motion for

attorney fees and stated that the “request remains outstanding awaiting the

Court’s decision.” The court entered the stipulated judgment.

      [¶7] On July 27, 2020, the court issued an order denying “all other

motions or requests for relief” that were still pending and not addressed in the

July 10 stipulated judgment. Atkinson’s March 18 motion for attorney fees was

one of five motions still pending and therefore denied by the order.

      [¶8] On July 31, 2020, Atkinson filed a motion for additional findings of

fact concerning his March 18 motion for attorney fees. See M.R. Civ. P. 52(b).

He requested that the court award attorney fees or “issue findings of fact

explaining the basis for its denial of [his] motion [for attorney fees].” Atkinson

also included a draft order with proposed findings granting the motion for

additional findings of fact and ordering Capoldo to pay the attorney fees.

Capoldo opposed this motion, contending that an award of attorney fees would

be unfair, and that she did not have the financial ability to pay the legal fees. On

August 28, 2020, the court denied Atkinson’s motion with a handwritten note

at the bottom of the order stating that the “motion is denied.” Atkinson timely


                                          II. DISCUSSION

        [¶9] Atkinson contends that the court mistakenly believed that the

stipulated judgment resolved the outstanding motion for attorney fees, and

asserts that Capoldo’s actions were so outrageous that denying the motion

without an explanation constituted an abuse of discretion.

        [¶10] “[W]e review a ruling on the substance of a Rule 52(b) motion [for

findings of fact] for an abuse of discretion.” Roberts v. Roberts, 

2007 ME 109


¶ 6, 

928 A.2d 776

. “We review a court’s decision to award attorney fees for an

abuse of discretion.” Quirk v. Quirk, 

2020 ME 132

, ¶ 23, 

241 A.3d 851

. A “court

must provide a concise but clear explanation of its reasons for grant or denial

of the [attorney] fee award.” Neri v. Heilig, 

2017 ME 146

, ¶ 16, 

166 A.3d 1020

(quotation marks omitted).1 Further, when a motion for findings of fact and

conclusions of law is denied, we cannot assume that the court implicitly found

   1 In Hebert v. Hebert, we, in a footnote, advised that “[a] request for attorney’s fees should not
result in a second major litigation. Ideally, litigants will settle the amount of fee. When settlement is
not possible, the fee applicant bears the burden of establishing entitlement to an award and
documenting the appropriate hours expended and hourly rates. We reemphasize that the trial court
has discretion in determining the amount of fee. This is appropriate in view of that court’s superior
understanding of the litigation and the desirability of avoiding frequent appellate review of what are
essentially factual matters. It remains important, however, for the trial court to provide a concise but
clear explanation of its reasons for grant or denial of the fee award.” 

475 A.2d 422

, 427 n.5
(Me. 1984).

facts sufficient to support its ultimate determination. See McLean v. Robertson,

2020 ME 15

, ¶¶ 11, 14, 

225 A.3d 410


        [¶11] We vacate the portion of the judgment denying the motions for

attorney fees and for further findings of fact, and we remand for the court to

issue written findings concerning Atkinson’s motion for attorney fees and, if the

court determines that it is appropriate, amending or reconsidering the order

denying Atkinson’s request for attorney fees, see M.R. Civ. P. 52(b).

        The entry is:

                           Portion of judgment denying motions for
                           attorney fees and for findings of fact vacated.
                           Remanded for further findings and any
                           amendment of the judgment regarding attorney
                           fees that the court deems appropriate.

Gene R. Libby, Esq., and Tyler J. Smith, Esq., Libby O’Brien Kingsley & Champion,
LLC, Kennebunk, for appellant Timothy Atkinson

Gregory J. Orso, Esq., Orso Law, P.A., York, for appellee Elizabeth Capoldo

York District Court docket number FM-2013-216

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