Nevitt v. Nevitt

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 88-117


Lisa Ericson Nevitt                          Supreme Court

     v.                                      On Appeal from
                                             Windham Superior Court
Bertha Nevitt and
Stephen Nevitt                               September Term, 1989


Stephen Nevitt

     v.

Lisa E. Nevitt


Arthur J. O'Dea, J.

William M. McCarty, Jr., McCarty Law Offices, Brattleboro, and Paul and
   Paul, P.C., Lyndonville, for plaintiff-appellee

Ardith L. Baldwin of Thomas W. Costello, P.C., Brattleboro, for defendant-
   appellant Bertha Nevitt

Jean B. Giddings of Fitts, Olson, Carnahan, Anderson & Bump, Brattleboro,
   for defendant-appellant Stephen Nevitt


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.

     GIBSON, J.      Stephen Nevitt appeals those portions of a divorce
judgment granting his wife, Lisa, custody of their minor child, child
support, spousal maintenance, and a share of the marital estate.  In a
companion case, Stephen's mother, Bertha Nevitt, appeals the trial court's
disposition of the marital homestead, which, although held in Bertha's name,
the court found was held by her as a nominee.  Apart from one aspect of the
court's child support ruling, we affirm the judgment.
                                    I.
     Stephen and Lisa were married in January of 1976 and had one child,
Laura, in August of 1977.  During the marriage, Stephen operated his own
wholesale jewelry business, with the assistance of Lisa.  They resided in a
house that the court found had a fair market value of $68,500 at the time
the parties separated in April of 1985.  Stephen purchased the house prior
to the marriage, and in 1975 he transferred it to his father.  After the
bank foreclosed the mortgage in 1979, Stephen and Lisa redeemed the property
and put the title in Lisa's maiden name.
     In July of 1985, approximately one month before Stephen filed for
divorce, he asked Lisa to sign an agreement releasing her entire interest in
the marital homestead.  In return, Stephen was to pay Lisa $5,000 over a
period of time and pay off a few relatively minor family debts.  After
initially refusing to sign and walking out on a meeting with Stephen and his
attorney, Lisa, at the insistence of Stephen, finally signed the agreement
and executed a blank warranty deed.  Stephen made only one $500 payment
under the agreement, claiming the value of a jewelry sample case stolen from
Lisa's possession offset the remainder.  At the time of trial, the deed was
in the name of Bertha Nevitt, though Bertha had not been present when Lisa
executed the deed, and the property transfer tax return indicated that she
had paid no consideration for the property.
     Stephen filed for divorce in August of 1985.  The court advised the
parties, prior to the final hearing, that Bertha would have to be joined as
a party.  Thereafter, Lisa filed a complaint against Stephen and Bertha,
asserting that they had fraudulently coerced her into relinquishing all her
interest in the marital homestead.  The cases were joined and a hearing was
held on September 3, 1987.  At the hearing, the trial court ruled, in an
oral notice of decision, that it would grant the divorce and award custody
of Laura to Stephen, leaving the remaining issues for a later hearing;
however, this decision was never incorporated into a written order because
of a dispute over the wording of a proposed order.
     At the close of the continued hearings, held on December 29, 30 and 31,
1987, the court noted that no decree had been issued following the earlier
hearing, and it then made comprehensive oral findings, "covering all aspects
of the case."  A final decree disposing of all issues was ultimately filed
on February 2, 1988.  In addition to granting the divorce, the court awarded
Lisa full parental responsibility for Laura, citing Lisa's ability to
provide "consistent, intimate interaction" with Laura and her willingness to
communicate with Stephen.  Further, the court ordered that (1) Laura remain
with Stephen in Vermont until the close of the school year; (2) Stephen pay
Lisa $225 per month in child support; (3) Stephen have the right to occupy
the marital homestead for eighteen months, at which time Lisa would assume
sole possession; (4) Stephen have the right, while occupying the homestead,
to purchase the property from Lisa for $60,000; and (5) Stephen pay Lisa
$275 per month in "spousal maintenance" while occupying the homestead or
until he bought out her interest.
     Both Stephen and Bertha appeal the final order.  Stephen argues that
the trial court erred by (1) improperly modifying the September 3 decision
when it awarded custody to Lisa; (2) ordering him to pay child support
while the child resided with him; and (3) awarding maintenance and
attorney's fees when Lisa had made no request for such awards.  In addition,
he claims that the court's findings in dividing the marital property were
not supported by the evidence.  Bertha contends the trial court erred in
finding that she held title to the marital homestead as a nominee and took
unfair advantage of her as a pro se litigant.
                                    II.
     Stephen first asserts that the court's initial award of custody to him
constituted a final order and that no change in circumstances warranting a
modification of the order had occurred between the September and the
December hearings.  Stephen also argues that the court erred in its division
of parental rights and responsibilities by awarding Lisa legal custody
while giving him physical custody till the end of the school year.  We
disagree on both counts.
     Subsequent events have rendered the custody issues moot.  On March 11,
1988, Stephen brought Laura to her mother's work place in New Haven,
Connecticut, and informed Lisa that he no longer wanted custody of the
child.  In April of 1988, the parties entered into a stipulation whereby
they agreed that Laura would reside with her mother.  The parties filed the
stipulation with the court the following month.  The custody issues thus
have become moot.  An issue that has become moot will not be considered by
this Court on appeal.  North Country Educ. Ass'n v. Brighton School Bd., 135
Vt. 451, 452, 380 A.2d 60, 61 (1977); Armstrong v. Hanover Ins. Co., 130 Vt.
182, 185, 289 A.2d 669, 671 (1972).
     Even if the issues were not moot, the court's order at the first
hearing was not a final order because it did not dispose of all the issues
between the parties.  See Morissette v. Morissette, 143 Vt. 52, 58, 463 A.2d 1384, 1387-88 (1983) (test of whether a judgment is final is whether it
makes a final disposition of the subject matter).  The matter thus remained
within the jurisdiction of the trial court, which had inherent,
discretionary power to open and correct, modify or vacate its judgment.  Cf.
Osborn v. Osborn, 147 Vt. 432, 433, 519 A.2d 1161, 1162-63 (1986) (a motion
under V.R.C.P. 59(e), which codifies trial court's inherent power to modify
a judgment, suspends the finality of the judgment); West v. West, 131 Vt.
621, 623-24, 312 A.2d 920, 921 (1973) (same).  A change such as that made by
the trial court did not require a showing of a substantial change of
material circumstances.  See West, 131 Vt. at 623-24, 312 A.2d  at 921-22.
                                   III.
     Stephen also contends that the court erred by requiring that he pay
child support for the period in which Laura resided with him before going to
live with her mother in Connecticut.  We agree.
     Although the trial court awarded parental rights and responsibilities
of Laura to Lisa, it awarded physical custody of Laura to Stephen from
February 1, 1988 to June 15, 1988.  Thereafter, physical custody was awarded
to Lisa.  The child support award, however, required Stephen to pay Lisa
$225 per month for the support of Laura, starting on February 1st and
including the entire four-and-one-half-month period in which Stephen was to
be the physical custodian.  There was no requirement that Lisa spend any of
this "child support" on Laura while Stephen was the primary custodian.  The
court clearly intended that Stephen would house, clothe, feed and otherwise
support his daughter while she resided with him and, at the same time, make
payments to Lisa for child support.  The court made no findings, and offered
no reason, why it imposed this "double payment" obligation on Stephen.  In
the absence of a justification, we can find no authority in the child
support statute for such an award.
     Ordinarily, child support should be paid through the custodial parent.
See Klein v. Klein, 150 Vt. 466, 477-78, 555 A.2d 382, 389 (1988).  In fact,
the statute now requires that the noncustodial parent pay his or her share
of the child support obligation to the custodial parent.  15 V.S.A. {
656(a).  There are reasons under the statute to deviate from the statutory
requirement, see 15 V.S.A. {{ 657(a) and 659(a); however, we have no
indication that the trial court used either of these bases since it offered
no explanation for its act.
     Upon review of the court's findings and conclusions, we can find no
statement of reasons for ordering Stephen to pay child support to Lisa while
he had physical custody of Laura.  At best, the court's conclusions state a
reason why Lisa was not ordered to pay child support to Stephen while he had
custody.  There is no consideration of the { 659 factors.  The amount
ordered is apparently calculated under the guidelines as if Lisa were the
custodial parent.  It is not related to specific needs Lisa might have as
noncustodial parent; nor does it deal with the double-payment problem.
While the court might have justified an award based on reasonable financial
needs and necessary arrangements connected with Lisa's upcoming resumption
of parental responsibilities, no such justification was given.
     Consideration of this case as one of shared custody under { 657(a)
might have allowed the court to consider Lisa's temporary needs as
appropriate for a temporary maintenance supplement under 15 V.S.A. { 661(a).
The court never made such an award, however, and { 661 requires a specific
finding of a lower standard of living for the child which was not made here.
     For the above reasons, the child support award in this case cannot be
upheld.  We reverse the ruling requiring Stephen to pay Lisa child support
during the period in which Laura resided with him, and, accordingly, direct
the court to order Lisa to reimburse Stephen to the extent that he made
child support payments for the period from February 1, 1988 to March 11,
1988, the date on which Stephen relinquished custody of Laura.
                                    IV.
     Stephen next argues that the maintenance award was not proper because
Lisa did not plead or request such relief.  We find no abuse of discretion.
This case is factually similar to Bero v. Bero, 134 Vt. 533, 534-35, 367 A.2d 165, 166-67 (1976), where we upheld an alimony award even though it was
not specifically requested.  The defendant spouse in Bero requested "such
further relief as seems just," and the issue of alimony had been raised and
contested at trial.  Similarly, in the instant case, Lisa requested "other
relief as may be appropriate" in a memorandum submitted to the court prior
to the December 1988 hearing.  Moreover, at the September 3, 1987 hearing,
both parties consented to bifurcating the cases and resolving the noncustody
issues, including maintenance, at a later hearing.  Thus, Stephen was put on
notice that the court would consider a maintenance award; nevertheless, he
chose not to present evidence opposing such an award.
     In Lalumiere v. Lalumiere, 149 Vt. 469, 472, 544 A.2d 1170, 1172
(1988), which Stephen cites in support of his argument here, we overruled
the trial court's maintenance award because there was no indication that the
defendant had ever sought such an award or that the issue had ever been
raised or contested.  The case, however, does not support Stephen's
argument.  The defendant in Lalumiere requested only visitation rights and a
reasonable split in marital property.  Further, we found that the defendant
was self-sufficient and did not need maintenance.  Neither of these
circumstances are present in the instant case.  Since Stephen was apprised
that Lisa was seeking whatever relief was available to her and that the
court was going to consider a maintenance award at the later hearing, the
court's decision to award Lisa maintenance was not an abuse of discretion.
     Even assuming the court erred by ordering a maintenance award, we would
not find reversible error.  The court ordered Stephen to pay $275 per month
in maintenance to Lisa while occupying the marital homestead for eighteen
months.  During that time, Stephen had the option of buying the property for
$60,000; if he did not do so, Lisa would retain ownership and assume sole
possession thereof at the end of the eighteen-month period.  Stephen is in
effect arguing that he is entitled to occupy the premises rent free,
although they have been awarded to Lisa.  Whether the court denominated the
payments "rent" or "maintenance," they amount to the same thing:
compensation to Lisa by Stephen for the privilege of occupying her property.
cf. Cab-Tek, Inc. v. E.B.M., Inc., ___ Vt. ___, ___, 571 A.2d 671, 673
(1990) (Court will affirm correct judgment that is based on erroneous
grounds).
     Stephen also contends that the court erred by requiring him to pay
attorney's fees despite the fact that Lisa did not request them in her
pleadings.  Again, we disagree.  In divorce cases, the assessment of
attorney's fees is proper "where justice and equity so indicate."  Peatman
v. Peatman, 140 Vt. 532, 534, 442 A.2d 1290, 1291 (1982).  The primary
consideration in awarding attorney's fees is the ability of the supporting
party to pay and the financial needs of the party receiving the award.  Ely
v. Ely, 139 Vt. 238, 241, 427 A.2d 361, 363 (1981); cf. Lalumiere v.
Lalumiere, 149 Vt. at 473, 544 A.2d  at 1173 ("court may determine whether to
make an award of 'suit money' based on the financial circumstances of the
parties").  Further, in cases of demonstrated need, attorney's fees may be
awarded absent a specific request for them in the pleadings.  See Tidwell v.
Tidwell, 379 So. 2d 614, 615 (Ala. App. 1980).  In the instant case, Lisa's
need was well documented and the trial court did not abuse its discretion
by so ordering.  See Bibens v. Bibens, 144 Vt. 287, 288-89, 476 A.2d 134, 135 (1984).
                                    V.
     Next, Stephen and Bertha contend that the court should not have set
aside the agreement and deed in which Lisa relinquished her interest in the
homestead.  Although an agreement distributing marital property is presumed
to be fair, Barbour v. Barbour, 146 Vt. 506, 510, 505 A.2d 1217, 1219
(1986), the trial court may refuse to honor a property division agreement
that is the result of, among other things, fraud, duress, or  unconscionable
advantage.  Burr v. Burr, 148 Vt. 207, 209, 531 A.2d 915, 917 (1987) (trial
court justified in refusing to honor property settlement where court found
that its actions and the situation had put substantial pressure on parties
to sign agreement).  Here, the trial court held the agreement invalid
because (1) it was an inequitable attempt by Stephen, one month before he
filed for divorce, to avoid distribution of any part of the marital
homestead to Lisa; (2) Lisa had signed the agreement only after threats of
physical force and intimidation from Stephen; and (3) Stephen was already in
breach of the agreement.  After reviewing the record, we find that the
evidence supports the court's findings, and the findings were sufficient for
the court, in its discretion, to set aside the agreement.  See Collins v.
Boudreau, 141 Vt. 129, 131, 446 A.2d 341, 342 (1982) (findings will stand
where there is "any credible evidence fairly and reasonably tending to
support them"); cf. Sablosky v. Gordon Co., 73 N.Y.2d 133, 138, 535 N.E.2d 643, 647, 538 N.Y.S.2d 513, 517 (1989) (an agreement is unconscionable when
the terms are unreasonably favorable to one party).
     With respect to the deed, Bertha argues that the court erred in
concluding that she held title to the property as a nominee.  Under 15
V.S.A. { 751(a), all marital property "shall be subject to the jurisdiction
of the court . . . whether in the names of the husband, the wife, both
parties, or a nominee."  The court concluded that Bertha was a nominee based
on its finding that Stephen had put title to the marital homestead in
Bertha's name in order to "unfair[ly]" avoid distribution of the property at
the time of the divorce, as well as to continue to hide the asset from
creditors.  This Court will not condone such actions when taken with intent
to deprive one's spouse of a fair portion of the marital assets.  See
Clayton v. Clayton, ___ Vt. at  ___, 569 A.2d  at 1079.
     In Clayton, six months after the son filed for divorce, his father had
him resign as president of the family business and transfer his interest in
stock in order to diminish the assets that would have been available to his
wife upon divorce.  Citing long-standing precedent, we held that an
agreement to convey marital assets in contemplation of divorce in return for
little or no consideration is contrary to public policy and unenforceable as
a fraudulent transfer.  Id.; see also Patch v. Squires, 105 Vt. 405, 410,
165 A. 919, 921 (1933) (it would be an illegal act for spouse to make gifts
of money with fraudulent intent of preventing other spouse from obtaining
distributive share of estate).
     The court found that Bertha provided no consideration for the
conveyance, as indicated by the property transfer tax return, which
characterized the conveyance of the homestead as a "transfer without
consideration between daughter-in-law and mother-in-law."  See Becker v.
Becker, 138 Vt. 372, 377, 416 A.2d 156, 160 (1980) (statements on transfer
tax return are presumptively true since they are made under oath).  Inasmuch
as the evidence supports the court's findings, they must stand.  The court
did not abuse its discretion in refusing to honor the agreement and deed in
the divorce decree.
                                    VI.
     Stephen contends that the record does not support the court's finding
that the jewelry business was worth $70,000.  The trial court acknowledged
that it could not put a precise value on the business because of Stephen's
history of deliberately concealing his assets from his creditors and even
his wife.  The court found, however, based on income tax returns indicating
that the business grossed $60,000 per year and Lisa's testimony that when
she left in April of 1985 there was $120,000 worth of inventory on hand,
that the business was worth at least $70,000.  In the absence of more
precise evidence of value, the court was within its discretion in accepting
Lisa's estimate.  See Wood v. Wood, 143 Vt. 113, 119, 465 A.2d 250, 253
(1983) (court has discretion to choose one party's estimate of value of
property over the other party's estimate).


                                     VII.
     Lastly, Bertha argues that we should remand this case in order to
prevent a failure of justice to a pro se litigant.  Bertha points out that
the court had to be reminded of her right to cross-examine a witness, and
at one point, disregarded her claim that she was unable to hear the
testimony.  Bertha argues that if the court had properly assisted her, she
might have presented additional evidence concerning the issues of duress
and consideration and her status as a nominee.  Although we will not permit
unfair advantage to be taken of one who acts as her own attorney, it is not
the trial court's responsibility to offer affirmative help to a pro se
litigant.  Olde & Co. v. Boudreau, 150 Vt. 321, 322, 552 A.2d 793, 794
(1988).  The court may have been unduly abrupt with Bertha; nevertheless, a
remand is not required because Bertha has not indicated what evidence she
might have produced in addition to the evidence presented at trial.  See
Paradis v. Kirby, 138 Vt. 524, 528, 418 A.2d 863, 865 (1980) (party claiming
error has burden of showing prejudice).
     The superior court is directed to order Lisa Nevitt to reimburse
Stephen Nevitt to the extent he made child support payments for the period
from February 1, 1988 to March 11, 1988.  The judgment is affirmed in all
other respects.


                                        FOR THE COURT:


                                        _____________________________
                                        Associate Justice