Johnson v. Johnson

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. 89-050


Carol Johnson                                Supreme Court

                                             On Appeal From
     v.                                      Washington Superior Court

Robert Johnson                               May Term, 1990


Alan W. Cheever, J.

         Cheney, Brock & Saudek, P.C., Montpelier, for plaintiff-appellee

Valsangiacomo, Detora, McQuesten, Rose & Grearson, Barre, for defendant-
           appellant


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


              DOOLEY, J.   Carol (plaintiff) and Robert (defendant) Johnson were
divorced in December, 1988 by the Washington Superior Court following a
sixteen-year marriage.  At the time of the divorce, plaintiff was thirty-
nine years of age and defendant was thirty-eight years of age.  Defendant
appeals from the trial court's property distribution and maintenance award
orders.  We affirm.
     The parties met while they were college students and were married
several years later in August of 1972.  At the time the parties married,
plaintiff was a school teacher and defendant was a medical student.
Plaintiff paid for part of defendant's second-year tuition and all of his
         third- and fourth-year tuition.  The parties moved to Vermont in 1976 so
that defendant could complete his residency at the University of Vermont.
From the time the parties moved to Vermont, plaintiff has been a full-time
homemaker, although she is certified to teach and has occasionally been
employed as a substitute teacher.  Defendant has enjoyed a very successful
career as a physician.  The parties have three children, ages eight, eleven
and thirteen.
     Plaintiff became emotionally and physically involved with another man
in April 1987.  Defendant first realized there was a problem with the
marriage in July 1987 when plaintiff told him that she was not sure whether
she loved him.  Plaintiff's affair was inadvertently made known to defendant
in August 1987 by a minister to whom plaintiff had made the admission.  At
that time, defendant suffered from emotional difficulties, but has since
undergone therapy and is now able to maintain a full work schedule.  The
trial court found that plaintiff was at fault for the breakup of the
marriage.
     At the time of the divorce proceedings, the trial court found that
defendant's estimated earnings were $165,000 ($120,000 base salary and the
remainder in bonuses) plus an additional amount contributed to his pension
and profit-sharing plan for a gross income of approximately $210,000.  In
addition to his salary, defendant also receives health and dental
insurance, disability insurance, a car purchased by the corporation, ten
weeks of vacation, and various other benefits.  As a result of this income,
the court found that during the marriage, the parties enjoyed an above-
average standard of living:
         They skied, purchased high quality clothing, enjoyed
         superior diet, dined out frequently, acquired many
         material possessions, lived in an above-average
         neighborhood, had excellent housing, and enjoyed a
         sufficient income so that plaintiff did not need to work
         outside the home.  The plaintiff was available for full-
         time homemaker services, including meeting the
         children's needs for their growth and development by
         actively participating in their lives and schedules.

Aside from defendant's income, the court also found that the parties had
significant assets, including personal property, defendant's profit-
sharing and pension funds, individual retirement accounts, and their home.
     The court granted the divorce on the ground that the parties had lived
separate and apart for a period in excess of six months and a resumption of
marital relations was not reasonably probable, in accordance with 15 V.S.A.
{ 551(7).  The court accepted the parties' stipulation with respect to the
children and ordered that legal and physical responsibility be shared,
although plaintiff was to exercise physical responsibility for the majority
of the year.  Furthermore, defendant was ordered to pay to plaintiff child
support in the amount of $625 per child per month until the children become
of age or terminated their secondary education.  The court then divided the
marital estate in half, with plaintiff and defendant receiving assets with a
value of $257,500 and $261,000 respectively.  Finally, plaintiff was
awarded rehabilitative maintenance in the amount of $1,500 per month for
ten years.
     Defendant raises four issues on appeal:  (1) the trial court erred in
awarding plaintiff rehabilitative maintenance because the uncontroverted
evidence shows that she voluntarily chooses not to support herself through
appropriate employment; (2) the unalterable ten-year period fixed for the
rehabilitative maintenance was an abuse of discretion; (3) the failure to
terminate the maintenance upon remarriage was an abuse of discretion; and
(4) the court's even distribution of the marital estate, in light of its
maintenance award, was an abuse of discretion.
     Defendant's first three arguments relate to the maintenance award.  The
trial court may award maintenance, either permanent or rehabilitative in
nature, if the spouse seeking the award: "(1) lacks sufficient income,
property, or both . . . to provide for his or her reasonable needs, and (2)
is unable to support himself or herself through appropriate employment at
the standard of living established during the marriage or is the custodian
of a child of the parties."  15 V.S.A. { 752(a).  If the court determines
that either spouse is entitled to maintenance pursuant to { 752(a), it must
then arrive at the amount and the duration of the award considering, among
others, the seven factors enumerated in { 752(b).  The trial court has
considerable discretion in ruling on maintenance and the party seeking to
overturn a maintenance award must show that there is no reasonable basis to
support it.  Klein v. Klein, 150 Vt. 466, 472, 555 A.2d 382, __ (1988).
Because of this broad discretion, our function on appeal is limited to
determining "whether its exercise of discretion was proper."  Richard v.
Richard, 146 Vt. 286, 287, 501 A.2d 1190, 1190 (1985).
     Much of defendant's argument represents a misunderstanding of the term
"reasonable needs" in { 752(a)(1).  In McCrea v. McCrea, 150 Vt. 204, 207,
552 A.2d 392, 394 (1988), we emphasized that the reasonable needs must be
determined "in light of the standard of living established during the
marriage."  See also Klein, 150 Vt. at 474, 555 A.2d  at 387 (need for
spousal support judged not by subsistence but instead in relation to the
standard of living established during the marriage).  In Klein, we also
found that maintenance can serve the purpose of recompensing a homemaker for
her contribution to the family's well-being where that contribution is not
otherwise made in the property distribution.  Id.  More recently, in Downs
v. Downs, 1 Vt. L. W. 142, 144 (April 6, 1990), we found that maintenance in
appropriate cases "can be a tool to balance equities whenever the financial
contributions of one spouse enable the other spouse to enhance his or her
future earning capacity."
     In this case, the court found that plaintiff had an earning potential
of $17,700 as a school teacher in Montpelier.  Nevertheless, the court
concluded that while "the plaintiff is able to support herself well above
the poverty level, . . . she lacks sufficient income to provide for her
reasonable needs where reasonable needs are considered in light of the
standard of living established during the marriage."  Contrary to
defendant's assertions, it is clear that the court considered plaintiff's
earning capacity and concluded that her income alone would be insufficient
to meet her reasonable needs.
     The court also considered each of the seven factors enumerated in {
752(b) to establish the amount and duration of the maintenance.  It noted
that, as the property distribution was not above and beyond an equitable
distribution of the assets, the property awarded will provide the parties
with a nest egg for retirement or a reserve for emergencies rather than be
used in lieu of maintenance.  It also focused on the fact that the parties
had enjoyed an above-average standard of living during the marriage and that
plaintiff was not likely to be able to support herself at that standard.
Even after the maintenance award, there is a substantial disparity in
income.  We find no abuse of discretion and conclude that defendant has
failed to show that there is no reasonable basis to support the maintenance
award.  See Quesnel v. Quesnel, 150 Vt. 149, 151-52, 549 A.2d 644, 646
(1988).
     Defendant also argues that the ten-year duration of the rehabilitative
maintenance payments is arbitrary and unsupportable and therefore is an
abuse of discretion.  The court is required to impose a time limit on
rehabilitative maintenance.  See Cleverly v. Cleverly, 147 Vt. 154, 159, 513 A.2d 612, 615 (1986).  In imposing this requirement, we recognize that it
may be difficult to predict the exact length of time for plaintiff to become
self-supporting.  Thus, if the period proves too short or too long, the
disadvantaged party can seek modification under 15 V.S.A. { 758.  See id. at
159-60, 513 A.2d  at 615.  In this maintenance decision, as in others, we
must accord the trial court wide discretion as long as the result leaves the
recipient in a position to support herself at the standard set during the
marriage.  See Klein, 150 Vt. at 476, 555 A.2d  at 388.  Plaintiff was
removed from the job market for over ten years in order to be a homemaker.
Even if plaintiff had continued to teach during the marriage and had earned
a masters degree during that time, the court found that her annual salary
would be $29,308.  Unless she obtains employment with an increasing salary,
her overall income will be eroded by inflation.  In light of these
considerations, we find no error in the duration of the rehabilitative
period.
     Defendant also contends that the court's failure to terminate the
maintenance award upon plaintiff's remarriage was an abuse of discretion.
While it is within the court's discretion to terminate maintenance payments
upon remarriage, see, e.g., Jacobs v. Jacobs, 507 A.2d 596, 601 (Me. 1986),
remarriage is not a factor that must be considered under { 752.  Remarriage
does not necessarily improve the spouse's financial security, and therefore
courts have held that remarriage does not automatically justify a
termination of maintenance payments.  See, e.g., In re Marriage of Bettiol,
92 Or. App. 587, 588, 759 P.2d 322, 322 (1988).  Further, the paying spouse
may seek a modification of the order if remarriage causes an increase in
income so that a real and substantial change of circumstances is present.
See 15 V.S.A. { 758.  We find no abuse of discretion.
     Defendant's final argument on appeal is that the trial court's equal
distribution of the marital estate, in light of its maintenance award, is an
abuse of discretion.  Essentially, defendant asserts that while plaintiff
may be entitled to either maintenance or property, she should not receive a
substantial amount of both where, as here, she was at fault for the break-
up of the marriage.  The property division and maintenance award are
closely related under Vermont's statutory scheme, and the court must give
due consideration to both.  See DeGrace v. DeGrace, 147 Vt. 466, 470, 520 A.2d 987, 990 (1986).  In appropriate circumstances, it is not an abuse of
discretion for the trial court to conclude that significant amounts of both
property and maintenance should be awarded.
     15 V.S.A. { 751 provides that "the court shall settle the rights of the
parties to their property . . . [and] equitably divide and assign the
property," and sets out twelve factors that the court may consider in making
a property settlement.  As with the award of maintenance, a trial court has
wide discretion in the disposition of marital property upon divorce, and we
will affirm its decision where we find reasonable evidence to support the
court's findings and conclusions.  See McCrea, 150 Vt. at 206, 552 A.2d  at
394 (1988).  Further, we have noted that the distribution of property is
not an exact science, and therefore all that is required is that the
distribution be equitable.  Lalumiere v. Lalumiere, 149 Vt. 469, 471, 544 A.2d 1170, 1172 (1988).  Here, the court made extensive findings with
respect to the relevant factors enumerated in 15 V.S.A. { 751(b) and in its
conclusions of law stated that it had considered each of these factors in
arriving at an equitable distribution.  We realize that the court had to
balance numerous factors, including the fault of the plaintiff and the
contributions she had made as homemaker to the property and the earnings
that were spent on the property.  In the end, the court struck a balance
that provided each party with approximately 50% of the marital estate.
Again, we find no abuse of discretion.
     Affirmed.

                                        FOR THE COURT:




                                        Associate Justice