Blair v. Blair

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. 89-071
 
 
Stanley Blair, Jr.                           Supreme Court
 
       v.                                    On Appeal from
                                             Rutland Superior Court
Karen Blair
                                             November Term, 1989
 
 
Arthur J. O'Dea, J.
 
DeBonis, Wright & Winpenny, P.C., Poultney, for plaintiff-appellee
 
Peter F. Langrock and Deborah L. Markowitz of Langrock Sperry Parker & Wool,
  Burlington, for defendant-appellant
 
 
PRESENT:  Allen, C.J., Peck, Dooley, and Morse, JJ., and Springer, D.J.,
          (Ret.)., Specially Assigned
 
 
     MORSE, J.  This appeal involves a dispute over whether an award to
defendant of $25,000 as a property distribution, plus $5,000 for attorney's
fees, is an abuse of discretion.  Defendant-wife claims that the total
amount of money awarded to her represents only 20% of the marital assets, a
decidedly unjust result given the evidence of battering she endured over the
course of this four year marriage.
     We need not reach the issue of abuse of discretion, because the oral
findings of fact issued extemporaneously at the conclusion of the trial are
sufficiently ambiguous and incomplete to warrant another hearing on property
distribution.  In particular, two evidentiary areas cause us to reverse and
remand.
                                    I.
     Plaintiff-husband acquired the marital residence before the marriage.
At trial, he evaluated its worth at about $65,000.  The court did not
believe this testimony, stating in findings issued orally from the bench,
"[Plaintiff] tried to tell us that the house was worth sixty or sixty-five
thousand dollars which is . . . ridiculous.  His own expert witness reported
to us a value of $125,000, and that is what he thinks it's worth."  The
mortgage balance of about $15,000 on the house was undisputed.  Therefore,
the equity in the house was somewhere between $50,000 and $110,000.
     Putting aside the value of the considerable personal property awarded
to the husband, an award of $30,000 (including $5,000 in attorney's fees) to
the wife was about one quarter of the equity in the house if it is valued at
the high end.  We assume the court -- as evidenced by the above remarks --
was persuaded more by the $125,000 opinion, but it made no finding
concerning the value of the house.  Sullivan v. Sullivan, 147 Vt. 407 408,
518 A.2d 33, 34 (1986).  It also made no finding about the probable increase
in the fair market value of the house over the course of the marriage.  On
remand, the court should clarify any increase in the value of the house
during the marriage.
                                    II.
     At another point in the findings, the court said in reference to the
$25,000 property distribution award, "That's a number that at times during
the trial was as big at one point as $50,000, and at another point it turned
out to be $25,000."  The findings do not explain what caused the award to
plunge from $50,000 to $25,000.
     The court observed:
            During the four years of the marriage, Karen worked
          consistently or persistently at her job at Castleton
          State College, 12 months a year with her vacations and
          home days off.  Stan, on the other hand, was casual
          about his work.  He more or less worked when he had to
          and didn't work when he could get away with not working.
 
            . . . .
 
          . . . Parental responsibility was awarded to Stan's
          previous wife and after two years of that situation,
          Stan was successful in getting custody or parental
          responsibility of the children.  Karen helped
          substantially in making that a reality in helping to
          provide a normal and comfortable home with both the
          mother and father when the children returned in June of
          '81 even though Karen and Stan were not married yet.
 
This reflects favorably on the wife and fails to support the court's
rumination in reducing an award as "big as $50,000" to $25,000.
     The following findings make us wonder just how the court viewed
defendant's claims of abuse by plaintiff.
          We mentioned earlier the alcohol and we'd say more on it
          later.  I don't think it is important for the record to
          show you how we view it.  Karen's version of it is much
          more accurate. . . .  The marital misdeeds that have
          been attributed to Stanley, most of them, we don't
          believe.  We do recognize that there was a certain
          amount of misbehavior; that there may be these temper
          tantrums and items of misbehavior, but the strangling
          with the hands and violence and threats that were
          described by Karen have been blown way out of proportion
          as evidenced by the fact that she stayed throughout the
          four years of marriage.  The children were in the house
          and don't relate any corroboration at all regarding
          these things that she told us happened.  I think that
          they're blown up by her own hurt with what happened to
          the marriage.
 
     The court's remark about staying in the relationship marked by
violence manifests the "popular misconception[] . . . that women who remain
in battering relationships are free to leave their abusers at any time."
State v. Kelley, 97 N.J. 178, 192, 478 A.2d 364, 370 (1984); see State v.
Anaya, 438 A.2d 892, 894 (Me. 1981) ("abused women often continue to live
with their abusers even though beatings continue"); State v. Hennum, 441 N.W.2d 793, 798 (Minn. 1989) ("common misconception that a normal or
reasonable person would not remain in such an abusive relationship"); People
v. Torres, 128 Misc.2d 129, ___, 488 N.Y.S.2d 358, 361 (1985) (battered
women "[n]umbed by a dread of imminent aggression . . . are unable to think
clearly about the means of escape"); State v. Ciskie, 110 Wash. 2d 263, 276,
751 P.2d 1165, 1172 (1988) (en banc) (characteristic of battered women's
syndrome is the "unlimited patience that these battered women have with
regard to hoping . . . 'that everything will be all right'").
     We are mindful that the court is the ultimate judge of credibility,
which can be based on the demeanor of a witness and how the witness articu-
lates an account.  Belanger v. Belanger, 148 Vt. 202, 204, 531 A.2d 912,
913 (1987).  Here, however, the court's reasons for discrediting the
defendant's testimony about domestic violence are ones rendered suspect in
the literature on the subject.  See State v. Kelly, 97 N.J. at 190-97, 478 A.2d  at 369-73 (discussing battered women's syndrome with citations to the
literature); see also L. Walker, Terrifying Love:  Why Battered Women Kill
and How Society Responds (1989); Mather, The Skeleton in the Closet: The
Battered Woman Syndrome, Self-Defense, and Expert Testimony, 39 Mercer L.
Rev. 545, 550-55 (1988).  We think the findings were inadequate to afford
meaningful review, Klein v. Klein, No. 89-131, slip op. at 9 (Vt. Feb. 2,
1990), given defendant's extensive testimony which dovetailed the profile of
a battered woman, compare L. Walker, supra, at 27, with transcript at 115
and 143; compare L. Walker, supra, at 48-49 with transcript at 111; compare
L. Walker, supra, at 50-51 with transcript at 118-19; and compare L. Walker,
supra, at 137 with transcript at 105-06.
     This case illustrates the dangers of dictating extemporaneous findings
on the record.  When this is done, there is no opportunity to review and
edit the decision.  Read in hindsight, oral findings may appear misspoken,
ill advised, or contrary to the true intent of their message.
     We doubt that the record of the court's findings and conclusions would
appear so confusing, enigmatic, and incomplete if it had been drafted,
reviewed, and edited.  Time constraints and work pressures in our trial
courts are great and make certain short cuts both tempting and useful.
However, a court should exercise caution before making extemporaneous
findings.  See Bucholt v. Bucholt, ___ Vt. ___, ___ n.4, 566 A.2d 409, 411
n.4 (1989).
     We reverse the property distribution and remand for a new trial on that
issue.
 
 
                                        FOR THE COURT:
 
 
 
                                        ___________________________________
                                        Associate Justice