Phyllis Ann Emmons v. Donald E. Emmons
No. 334-80
Supreme Court of Vermont
August 9, 1982
[450 A.2d 1113]
Present: Barney, C.J., Billings, Hill, Underwood and Peck, JJ.
Lisman & Lisman, Burlington, for Defendant-Appellee.
Billings, J. The plaintiff-appellant obtained a divorce decree from the defendant-appellee on the grounds the parties lived separate and apart for six consecutive months and the resumption of marital relations was not reasonably probable.
The custody issue is moot because the child involved is now of legal age, so we do not address that claim of error. The sole issue before us is whether the trial court erred in the distribution of marital assets.
Following two years of marital discord and unsuccessful attempts at reconciliation and counseling, plaintiff, who was an assistant professor at a nearby college, moved out of the parties’ homestead and took up residence at one of the college‘s dormitories as a housemother. The parties had been married for twenty years during which time the plaintiff was gainfully employed outside the home for over fifteen years.
At the time of the decree the parties owned a house and fifteen acres of land with a net value of approximately $65,
The trial court decreed that the net proceeds of the homestead be divided equally and the household furniture be divided as the parties agreed, or sold and the proceeds divided equally if the parties failed to agree. The parties did not appeal this part of the order. The trial court also ordered that all “savings accounts, money, or investments” be decreed to the party having possession and ownership thereof and decreed the apartment house property to the defendant. This part of the order resulted in a large disparity in the division of the property favoring the defendant. On appeal the plaintiff claims that the trial court abused its discretion in dividing the savings accounts, money, investments, and the apartment house unequally because two of its findings are not supported by the evidence: (1) the finding that the plaintiff “abandoned the home,” and (2) the finding that there was no evidence from which the trial court could determine what savings and investments the parties had in their possession and their value.
In the present case, the trial court‘s finding that the plaintiff had “abandoned the home” is not supported by the evidence. Plaintiff testified that she left the home because of irreconcilable differences with the defendant and because she realized that he would never be the one to move out. She stated that her leaving was “by mutual consent.” The defendant testified that, although he believed she left because “she became more interested in her career than the house,” he concurred in her decision to leave. This is the extent of the evidence on this issue. There was no evidence that the plaintiff suddenly disappeared unannounced without being heard from for a significant period of time, or failed to maintain contact with her children, or failed to provide any necessary financial support which might be expected under the circumstances. Merely leaving the homestead in and of itself is not sufficient to justify a finding of fault under
Our divorce statute provides under
The other finding challenged on appeal is also unsupported by the evidence. The trial court found as follows: “Each party has some savings and investments in their respective names and possession. There is no evidence from which the Court can find just what such personalty is or its value.” This is clearly erroneous. The uncontradicted testimony of the parties establishes that at the time of the hearing the plaintiff held some $4,850 of savings and investments while defendant controlled approximately $19,300.
The trial court‘s reliance on these erroneous findings in dividing the property with such disparity was a clear abuse of discretion. Field, supra, 139 Vt. at 244, 427 A.2d at 352; Palmer v. Palmer, 138 Vt. 412, 416, 416 A.2d 143, 146 (1980). Because the trial court failed to carry out its duty to make a “just and equitable” division of the property as required by
Reversed and remanded for hearing on division of savings accounts, money and investments, and apartment property; affirmed as to the merits of the divorce and other property division.
In reaching its conclusion the majority has relied heavily on modifying evidence which, of course, it should have excluded entirely. In appeals of this nature, we are required to view the evidence in the light most favorable to the prevailing party. Trudeau v. Conway, 139 Vt. 167, 168, 423 A.2d 854, 855 (1980). Both “[t]he weight and credibility of the evidence and its persuasive effect are for the trier of fact,” not this Court. Id. at 168, 423 A.2d at 856. “As we have often stated, the trier of fact is given the sole determination of the weight of the evidence, the credibility of witnesses, and the persuasive effect of the testimony.” Capital Candy Co. v. Savard, 135 Vt. 9, 12, 369 A.2d 1361, 1362 (1976). Furthermore, this Court has held frequently that the trial court has wide discretion in the distribution of property under
The majority appear to recognize
Stated broadly, my general objection to the majority opinion and its consequences is the failure to acknowledge and extend proper deference to credible supporting evidence.
I.
Although the possibility of fault is recognized, it seems to me that the majority is trying to signal the court below that no fault should be found here. I see no other purpose for its emphasis on the patently obvious: that the mere act of leaving the home first, standing alone, is no basis for a finding of fault. Has someone suggested that it is?
The opinion continues with an effort to bolster this unquestioned principle through a puzzling non sequitur of statutory construction which attempts to tie together
The argument is fallacious. It begs the question of fault; it does not answer it. The issue here does not involve, in any way, the consequences of leaving without fault. The proper question is whether, under the circumstances disclosed by the record, the trial court was justified in concluding that plaintiff‘s leaving constituted fault. The very major premise of the principle to which the majority unnecessarily devote so much space, syllogistically assumes no fault. If there is in fact no fault, the principle is there (subject to the mandates of
As I read the majority opinion, it relies on not only purely modifying evidence, but on an absence of evidence concerning after the fact matters as well, i.e., certain things plain-
Although the majority conclude that there was “two years of marital discord,” this exaggerates and interprets the record. The record shows no active or actual “discord” between the parties during that time. The most that can be deduced fairly from the record is that plaintiff may have become simply bored with the relationship, and chafed at whatever restraints it imposed against pursuing her personal career. Exactly how a continuation of the marriage posed any such impediment, or was any more limiting to her career in education than it was to defendant in his employment, is not explained.
The majority refer also to “unsuccessful attempts at reconciliation and counselling.” This bare reference also expands the true significance of what these attempts amounted to by telling only half the story. The so-called “counselling,” which has impressed the majority, consisted of “one session and . . . a weekend of marriage therapy.” This was hardly a determined or heroic effort by either party to resolve whatever problems may have then existed (in fact there is no evidence that any difficulties were not resolved for that time), and far from sufficient to compel the result reached by the majority. Moreover, the relationship continued for some time thereafter without any remarkable difficulties, as far as the record shows, until (as the trial court found) plaintiff abandoned the home in order to pursue the career in which she was already established.
The recitations by the majority, discussed above, illustrate the paucity and weakness of the evidence which it apparently relies upon to justify its conclusion of no-fault, and which, even then they exaggerate by assumptions and their own interpretation. Moreover, these recitations are selective and modifying (at best) in their scope. Thus, by selecting at ran-
In the light of the evidence which provides support for a finding of fault, the majority‘s conclusion that there was none, or none shown, as a matter of law, is at least perplexing. Examining the evidence supporting the trial court‘s conclusion of fault, the record shows plaintiff left the home to pursue the career she was already in, leaving behind, without the immediate maternal benefits she might provide, her two children, still minors at the time. The youngest child, a son, had approximately two and a half years of minority remaining. They were left, moreover, as the financial and immediate parental responsibility of defendant. But this, the majority contend, is insufficient evidence. I cannot accept such a conclusion without protest.
If the facts here, including the circumstances attendant upon plaintiff‘s leaving, as briefly summarized above, do not justify and support fault, I despair that fault can ever exist legally under
The majority seem to be saying that children, sons or daughters, no longer need or benefit from paternal or maternal guidance in the home sometime during their teen years so that, assuming their simple financial needs can be satisfied, one may leave the home and abdicate these responsibilities, in the absence of fault on the part of the partner who remains, with impunity and at will. And for what purpose? In this case, plaintiff left for what seems a purely personal motive, “to pursue her own career.” She was unwilling, apparently, to abide for even the relatively few years left of her own youngest child‘s minority; preferring to give priority instead to her own personal interests and being closer to her friends, acquaintances, and peers, in the profession of her choice.
In my view the trial court was clearly justified at least in its finding of abandonment. Therefore this Court has no busi-
It is appropriate at this point to discuss briefly the use by the trial court of the word “abandoned.” It raises the question of whether it is used in the generic or dictionary sense, or as a word of legal “art.” The word “abandonment” in domestic relations and divorce matters is virtually synonymous with “desertion.” Desertion, however, as a statutory and legal term of art is a separate and specific ground for divorce.
It is noteworthy that the trial court‘s finding does not state specifically that plaintiff abandoned the defendant, but that she “abandoned the home.” This is a much broader concept than the mere living apart provision of
Even if we examine abandonment as a term of legal art, the result should not be different. It adds two elements not generally contained, expressly at least, in the dictionary definitions. First, that it be without good cause; secondly that it be without the consent of the other party. 27A C.J.S. Divorce §§ 34-35.
By ignoring evidence which clearly supports the findings and result reached below, the majority has crossed the borderline of proper appellate review, and has invaded the legislative prerogative of establishing social policy (equal division of assets, coupled with a limitation on parental obligations in those cases where there are children) to be applied hereafter, at least in the absence of minor children, to all “no-fault” cases. In doing so, it has resorted also to an extremely farfetched and transparent exercise in statutory construction, overlooking the fact that there is nothing in the governing statutes that expressly mandates all property must be distributed equally between the parties.
II.
In addressing this, my second objection, it will be assumed, arguendo only, that the majority are correct in concluding that there is insufficient evidence to support a finding of fault. When the point has been reached in a divorce proceeding at which a fair distribution of the property is to be determined, the trial court must apply the same statutory guidelines irrespective of the presence or absence of fault.
The majority opinion recites, correctly and properly, the substance of
This failure is an unfortunate precedent. Contending litigants, the Bar, and the trial bench, reading the opinion may logically infer that where there is, in fact, a true no-fault situation, the statute is meaningless or at least not applicable, and either an approximate even “split” is the only and necessary answer, or that a disparity of any breadth, standing alone, constitutes reversible error. This is most unfortunate. Section 751 does not even employ the word “fault” [nor for that matter does
Section 751 is a legislative mandate that no court can properly ignore; for my part I consider it a wise and important enactment. It provides at least some safeguard against those unconscious biases which all human nature is heir to and must constantly be on guard against. The list is long, but includes such familiar concerns as moral concepts, societal and class standards of time and place, religious beliefs, national origins, race, and sex, among others. Also, if applied conscientiously, this statute serves as a preventative measure against an arbitrary even division as the easy way out. For whatever reason, the dissolution of marriage today has become a simple matter, one result of this being to glut court dockets with divorce cases. The factors set forth in this statute are, nevertheless, of the greatest importance to the parties; they are involved in what may well be one of the most important and traumatic incidents of their lives. Once the decision to conclude the relationship has been made by one or both of the marital partners, the distribution of property (with the exception of child custody) becomes the paramount concern. Since the legislature has prescribed the guidelines for the courts through
Plaintiff left not only the home, but the children as well, to pursue her own career. She was unwilling to put aside her
Both parties here had been employed during the greater part of their married life, and both therefore received income. Nevertheless, defendant used his, or the necessary part of it, to support the family, while plaintiff used hers as she wished. There was no “pooling” of income for family purposes, nor established contributions on a percentage basis or otherwise, although she did on occasion purchase things for the home. There was, as defendant put it, “no financial partnership.” This is not, of course, a subject for fault, they were free to manage their affairs as they pleased, but again it speaks to their relative merits over the period of the marriage. Not having accumulated savings during the marriage, regardless of the lack of demand on her independent income, she stood by while defendant saved and invested from his income (after paying family expenses), and now asks the court to award her a substantial portion of defendant‘s assets.
Reviewing the condition in which the parties are situated under the court‘s order as required by
Neither the absence of liquidity nor the parties’ precarious financial position by themselves justify equal division.
. . . .
The trial court‘s conclusion concerning the absence of liquidity is a legally insufficient basic reason for ordering equal division of the properties.
Young v. Young, 134 Vt. 87, 89, 349 A.2d 225, 227 (1975) (emphasis added). This is true in other states as well as
In the instant case, plaintiff is gainfully employed, in a career of her own choosing in which she is experienced. She lives in a rent free situation which, moreover, pays her additional income because she is in residence. She has no obligation to contribute, even on a percentage basis, to mortgage payments or other carrying costs on either the home or the apartment building; in fact she expressly refused to do so. Nevertheless she demands, and the practical effect of the majority opinion may well produce that result, a half of the proceeds when these properties can be sold. She has been able to accumulate and invest her own money to the extent of several thousand dollars since leaving the home. There is not here the case of the wife who gave up employment to devote her life to the home and is left now, years later, with no marketable skills. She will be in no sense either impoverished or without employment. She is more than merely employable as was the appellant in the Connecticut case, Tutalo v. Tutalo, supra; she is employed.
Beyond her salary, plaintiff would be entitled, under the trial court‘s order, to receive one-half of the proceeds realized from the sale of the home. At the time of trial, plaintiff testified the equity in the property to be approximately $95,000.00. In the meantime, of course, that equity has been increasing as defendant, out of his own pocket, and with no contributions from the plaintiff (or without any credit to him based on those payments), continues to pay off the mortgage as he is required to do under the order. Likewise, the court ordered defendant to pay all other expenses connected with this property, again without any contributions from the plaintiff. Further, the household goods, furniture and fixtures in the home, except as the parties may otherwise agree, are to be sold, with half the proceeds payable to plaintiff.
It seems probable that if the order of the trial court was to be affirmed, plaintiff would receive something in excess of $50,000.00 as a minimum; that is a lot of money, especially when considered in conjunction with her steady employment and salary. It is true that defendant might receive a substantially larger amount based primarily on one item which is
The third element to which the court must give consideration in assigning assets is “the party through whom the property was acquired.” It is beyond question, I think, that the disparity which so concerns the majority here results primarily, and probably exclusively, from the value of the apartment house, purchased by, and standing in the sole name of, the defendant. The evidence is uncontroverted, moreover, that defendant made the downpayment of approximately $32,000.00 out of his own personal savings and investments, that plaintiff contributed nothing, and in fact she “wanted no part of it” at the time he acquired it, although she certainly does now. She wants to force its sale, at a loss to defendant, the latter making mortgage and all other necessary payments in the meantime, with no contributions from her. She expects half the proceeds nevertheless to be awarded to her without any credit allowed to defendant for all of the interim carrying costs he will have paid from his own pocket by the time a sale can be effected.
Assuming the source-of-acquisition concern under the statute is to be given any real meaning here, especially when it is placed in balance with the other two statutory requirements as applied to the record facts and findings, the trial court was well within the scope of its broad discretionary powers in awarding the apartment house to the defendant, the party through whom it was acquired. The fact that the disparity results primarily from this grant is irrelevant in the light of the other two concerns as they are here, except on a purely comparison basis to which the majority gives such unwarranted weight regardless of the fact that neither a comparison nor equality are required by law in any case.
I do agree with the majority that the trial court erred in finding there was no evidence from which it could determine the nature and value of the savings and investments which
If this case must be reversed, it is to be hoped that, at the very least, due consideration will be given to all the elements of