Ward v. Ward

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. 89-312


H. Grace Ward                                Supreme Court

                                             On Appeal From
     v.                                      Lamoille Superior Court

Lewis R. Ward                                June Term, 1990


Alan W. Cook, J.

Williams and Green, Morrisville, for plaintiff-appellant

Edward B. French, Jr., of David B. Stackpole Law Offices, Stowe, for
  defendant-appellee


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


     DOOLEY, J.   Plaintiff wife appeals from a trial court judgment
granting a divorce, alleging that the court failed to grant her an adequate
portion of the marital estate, chose the wrong date for valuation of the
parties' home, failed to distribute certain rental income to which she was
entitled, and dismissed improperly her additional claims for assault and
battery.  We reverse on the issue of the property valuation date and
otherwise affirm.
     The parties were married in 1976, after signing an antenuptial
agreement in which they waived all claims to solely held property or
separate maintenance.  They separated in June 1986, and plaintiff filed for
divorce a month thereafter.  After the case was filed, the court granted
plaintiff's motion to amend her complaint to include claims for assault and
battery.  Defendant thereafter counterclaimed for divorce and for damages
for assault and battery and emotional distress.
     At the time the action was filed the sole asset owned jointly by the
parties was their share of a residence in Hyde Park, which they held
together with two of the defendant's children.  Defendant had paid about
$11,000 of his own money for their interest in the property and, according
to the trial court, had spent about two thousand hours of his time
renovating it.  Plaintiff had contributed no funds and about one hundred
hours of her own time helping defendant with the construction.
     The marriage was a tumultuous and sometimes violent one.  The trial
court's findings detail defendant's assaultive conduct toward plaintiff,
together with a full account of plaintiff's own behavior and her responses
to the rocky relationship with defendant.  The court divided the blame for
the termination of the marriage:
         This Court is persuaded that each party contributed to
         the break up of the marriage, a marriage more in name
         than in practice.  Defendant was uncontrollably jealous
         of Plaintiff's attention and affection, be it to other
         male friends or to her children.  Defendant drank
         alcoholic beverages to excess, often at social
         gatherings.  This behavior heightened his jealousy,
         often resulting in verbal and physical assaults by
         Defendant on Plaintiff. .  .  .
            . . . .
            . . . Plaintiff contributed no money to the Hyde Park
         property and, in comparison to Defendant virtually no
         labor.  Plaintiff was more interested in spending her
         time at the Darling Road residence with her children
         than in establishing a permanent home with Defendant.
         This Court is persuaded that Plaintiff was unable or
         unwilling to totally cut the emotional tie she felt for
         her ex-husband.  She often showed more affection and
         concern for him than she did for Defendant.  Plaintiff
         made little or no attempt to hide her feelings in this
         regard from Defendant.  While in no way does Plaintiff's
         behavior excuse or justify Defendant's assaults,
         Plaintiff's disregard for Defendant significantly
         contributed to the end of the marriage.

Citing defendant's "abusive behavior" and plaintiff's "behavior and lack of
contribution," the court awarded each party a one-fourth interest in the
Hyde Park property.  The court expressly chose a valuation date near the
date of the separation in June of 1986, yielding a total net equity for the
four owners of $57,000, rather than a date closer to the date of the order.
In doing so, it rejected use of an October 1988 appraisal proffered by
plaintiff and showing a value of $87,000.  Since defendant was to retain his
interest in the property, the court ordered him to pay plaintiff the value
of her share, which it calculated at $14,250.  The court did not grant
plaintiff's request for a larger share of the value of the Hyde Park
residence, nor did it award her a share of the rental income derived from
the property during the pendency of the case.  The court's findings,
conclusions and order do not address the tort claim of the plaintiff or the
counterclaims of the defendant.
     Plaintiff argues first that the trial court erred in failing to make
findings and conclusions disposing of her amended complaint for assault and
battery.  Defendant responds that the trial court "basically found for the
Plaintiff on the issue of assault, and provided her compensation for her
damages by adjusting her interest in the homestead."
     We start by considering whether the count of plaintiff's complaint
which stated a cause of action for assault and battery was properly joined
with the divorce action and, thus, was properly before the trial court. (FN1)
The procedure in divorces is governed by V.R.C.P. 80.  Subdivision (a) of
that Rule states that the Vermont Rules of Civil Procedure apply to divorce
actions unless otherwise provided in Rule 80.  The general rule on joinder
of claims is found in V.R.C.P. 18(a), which provides:  "[a] party asserting
a claim to relief as an original claim . . . may join, either as independent
or as alternate claims, as many claims either legal or equitable or both as
the party has against an opposing party."  If Rule 18(a) applies in this
context, it was proper to join the tort claim with the divorce claim in one
action.  For a number of reasons, we do not believe that Rule 18 applies in
this instance. (FN2)
     First, although Rule 80 does not specifically preclude the joinder of
other claims in a divorce action, such a result can be inferred from the
structure of the rule.  The rule provides for a specific type of complaint
and service.  See V.R.C.P. 80(b).  It specifically requires the plaintiff to
prove a case even though the defendant fails to answer, thereby ensuring
that defendant's rights are protected even in the absence of an answer.  See
V.R.C.P. 80(d).  It limits the scope of counterclaims and provides for
discovery, absent a showing of good cause, only on the issues of
maintenance, maintenance supplement, support and counsel fees.  See V.R.C.P.
80(f), (g).  It requires a cooling-off period before the hearing can be
scheduled where children are involved.  See V.R.C.P. 80(h).
     Two parts of the rule present difficulties in cases like this one.  The
counterclaim provision appears to preclude the counterclaims filed in this
case, an unfair result if plaintiff is not similarly prohibited from joining
her tort claim.  See V.R.C.P. 80(f) (counterclaims limited to "cause for
divorce or annulment of marriage"); Reporter's Notes, V.R.C.P. 80 ("other
claims that would be compulsory under Rule 13(a) . . . may thus be asserted
in a subsequent action").  The discovery provision does not authorize
discovery as of right on the tort claim although discovery would be
routinely allowed on such a claim if filed independently.  See V.R.C.P.
80(g).  If discovery is allowed on the tort claim as of right, court
control over discovery on non-monetary issues in the divorce would be lost.
     Further, our precedents are more consistent with the view that joining
other claims with a divorce action is improper.  The most important
precedent is Slansky v. Slansky, 150 Vt. 438, 553 A.2d 152 (1988), where we
ruled that a tort action between divorced spouses was not barred by res
judicata because of the failure to raise the claim in the divorce.  We
relied on the New Hampshire Supreme Court's decision in Aubert v. Aubert,
129 N.H. 422, 426, 529 A.2d 909, 911 (1987), for the proposition that "a
civil action in tort is fundamentally different from a divorce proceeding,
and that the respective issues involved are entirely distinct."  While we
did not rule that the plaintiff could not adjudicate the tort claim in
connection with the divorce proceeding, (FN3) the decision is consistent with
such a rule.
     We adopted a similar policy with respect to foreclosure actions, which
are also governed by a separate rule.  See V.R.C.P. 80.1.  In LaFarr v.
Scribner, 150 Vt. 159, 549 A.2d 651 (1988), we held that judgment of strict
foreclosure is not res judicata with respect to liability in a later action
for a deficiency judgment.  As in the divorce context, the decision is
grounded on the view that "a foreclosure action is separate and distinct
from an action for a deficiency judgment."  Id. at 161, 549 A.2d  at 653.
Although we held that Rule 80.1 did not require the joinder of the
foreclosure claim with the request for a deficiency judgment, we did not
rule on whether such a procedure is authorized.  Id. at 160 n.*, 549 A.2d  at
652 n.*.
     We have been particularly concerned about the joinder of unrelated
claims with juvenile CHINS cases, although such cases are governed by the
Vermont Rules of Civil Procedure.  See In re J.R., 147 Vt. 7, 10, 508 A.2d 719, 721 (1986).  We recently ruled in In re M.C.P., ___ Vt. ___, ___, 571 A.2d 627, 641-42 (1989), that it was improper to join a collateral dispute
between a sibling of the juvenile before the court and the state agency,
SRS, into the CHINS proceeding.  We emphasized in that case:  "We believe
that rigid adherence to the limits on the powers of the juvenile court
expressed in the statute is necessary to ensure a single-minded focus on the
juvenile before the court."  Id., at ___, 571 A.2d  at 642.
     Finally, the relevant policy considerations weigh heavily against
combining the tort action with the divorce.  If we combine these claims, it
will be difficult to protect the right to trial by jury while providing
expeditious relief in the divorce action.  We have adopted the rule of
Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959), that requires that
related legal and equitable claims be tried first to jury on the legal
claims to protect the jury trial right.  See Reporter's Notes, 1985
Amendment, V.R.C.P. 39; The Merchants Bank v. Thibodeau, 143 Vt. 132, 134-
35, 465 A.2d 258, 260 (1983).  If a jury trial had been requested in this
case on the tort claim or counterclaims, we would have had to delay
resolution of the divorce proceeding, with its claims that the domestic
violence between the parties should be considered in determining the
property disposition, until after the tort actions were tried to a jury.
The delay could be intolerable, especially if the custody and visitation of
children were involved.  The better policy is to keep the actions wholly
separate and resolve the divorce proceeding as expeditiously as possible.
     We note that the better reasoned cases from other states have reached
the conclusion that marital tort actions may not be joined into a divorce
action.  The Supreme Court of Utah, in Lord v. Shaw, 665 P.2d 1288, 1291
(Utah 1983), analyzed the issue  as follows:
         We believe that divorce actions will become unduly
         complicated in their trial and disposition if torts can
         be or must be litigated in the same action.  A divorce
         action is highly  equitable in nature, whereas the trial
         of a tort claim is at law and may well involve, as in
         this case, a request for trial by jury.  The
         administration of justice will be better served by
         keeping the two proceedings separate.

See also Noble v. Noble, 761 P.2d 1369, 1371 (Utah 1988) (reaffirming Lord
and noting that "if spouses have tort claims pending against each other
which are likely to have a bearing on the outcome of the divorce action,
those claims should be resolved prior to the divorce proceedings"); Walther
v. Walther, 709 P.2d 387, 388 (Utah 1985) (tort claim award obtained in
divorce action vacated under the rule in Lord).  The Colorado Court of
Appeals recently adopted the rule of Lord, reasoning as follows:
            Accordingly, we adopt the reasoning of the Utah and
         Arizona courts, and hold that the efficient
         administration of dissolution cases requires their
         insulation from the peculiarities of matters at law.
         The joinder of marriage dissolution actions with claims
         sounding in tort or, for instance, contract would
         require our trial courts to address many extraneous
         issues, including trial by jury, and the difference
         between the "amicable settlement of disputes that have
         arisen between parties to a marriage," and the
         adversarial nature of other types of civil cases.

Simmons v. Simmons, 773 P.2d 602, 604-05 (Colo. App. 1988) (citations
omitted); see also Windauer v. O'Connor, 107 Ariz. 267, 268, 485 P.2d 1157, 1158 (1971) ("the peculiar and special nature of a divorce action speaks
against the bringing of the two actions in one litigation").  Even where
courts have found that joinder is technically possible, they have usually
discouraged such joinder.  See Stuart v. Stuart, 143 Wis. 2d 347, 352-53,
421 N.W.2d 505, 508 (1988).
     For the above reasons, we conclude that plaintiff's tort claim and
defendant's tort counterclaims were improperly joined into the divorce
action.  Thus, we affirm the trial court's decision to render judgment
without adjudicating these claims, although on different grounds from those
urged by defendant and apparently used by the trial court.
     Defendant next argues that the court erred in valuing the residence as
of the date of the parties' separation, rather than the date of the hearing.
In her January 23, 1989 request for findings, plaintiff specifically
requested that the court use an appraisal figure of $87,000, which plaintiff
asserted was the fair market value as of that date.  Defendant's requests
for findings corroborated the $87,000 valuation figure as of September of
1988, but argued that a $60,000 value figure as of September 1986, shortly
after the separation date of June 14, 1986, was the appropriate one.
     We addressed the question of the appropriate date for property
valuations in Albarelli v. Albarelli, 152 Vt. 46, 48, 564 A.2d 598, 599
(1989), where appellant questioned the trial court's use of appraisals more
than a year old on the date of trial.  Though the case was decided on other
grounds, our dictum on the issue is on point for this case:
            As a general proposition, marital assets should be
         valued as close to the date of trial as possible. While
         our case law has not previously spelled out such a
         principle with specificity, we recently held that
         relying on a valuation of marital property conducted
         three years before trial constituted an abuse of
         discretion by the trial court.  Cleverly v. Cleverly,
         151 Vt. 351, 354-55, 561 A.2d 99, 101 (1989).  We think
         that this principle is the one most consistent with the
         mandate of 15 V.S.A. { 751(a) that the trial court
         "equitably divide and assign the property," and the one
         that best promotes fairness in the imprecise task of
         setting valuations.

Id.  (citations omitted).  The trial court in the present case chose to rely
on an appraisal performed more than two years before the date of the court's
order -- considerably older than the appraisal we rejected as stale in
Albarelli.
     Although the court chose the date of separation as the proper date for
valuing the property, it gave no reason for its choice.  Defendant argues
that the valuation can be upheld because plaintiff's contribution to the
Hyde Park residence was minimal and that the trial court's discretion should
be respected.  We do not believe that the respective contributions of the
parties toward the Hyde Park house have any bearing on the question of the
proper date for valuation.  Under Albarelli, a property disposition that is
based on an improper valuation must be reversed and remanded.  While the
$87,000 figure used by plaintiff is not contested by defendant, it was eight
months old at the time of the trial court order and is now two years old.
On remand, the trial court should obtain as current a valuation as possible
and amend its order accordingly.  See Cleverly v. Cleverly, 151 Vt. 351,
354-55, 561 A.2d 99, 101 (1989).  We see no reason to upset the general
apportionment of property shares because of this error.
     Since we are reversing and remanding for the limited purpose of
updating the property valuation and amending the amount defendant must pay
to plaintiff to buy out her interest in the property, we must consider
plaintiff's next argument that the trial court abused its discretion in
failing to award her a larger share of the Hyde Park property.  Her argument
consists of an itemization of defendant's abusive behavior to her, together
with incredulity that the court equally divided the parties' interest in the
property in light of the evidence that an analysis of "the respective merits
of the parties" favored her.  See 15 V.S.A. { 751(b)(12).  In making this
argument she ignores other statutory factors, particularly { 751(b)(10),
which allows the court to consider the party through whom the property was
acquired, and (b)(11), which sanctions consideration of "the contribution of
each spouse in the acquisition, preservation, and depreciation or apprecia-
tion in value of the respective estates . . . ."  It appears that the trial
court weighed defendant's egregious conduct in the balance, on the one
hand, against defendant's sole initial capital contribution and his largely
single-handed renovation effort, plus the less culpable, but not insignifi-
cant, faults on plaintiff's side.  Although the court does not recite the
provision, its findings suggest that it also considered { 751(b)(2), the age
and health of the parties, finding that defendant had sustained three heart
attacks, was disabled, and would require a second open-heart operation.  In
this balancing, there is no hint in the trial court's opinion that physical
violence was given less than its appropriate weight.  If anything, there is
an inference that, but for the violence, defendant might have received a
larger share of the property that he purchased and renovated.  The trial
court has broad discretion in distributing marital property, and its
judgment will not be disturbed unless its discretion was abused, withheld,
or exercised on untenable grounds.  See Bendekgey v. Bendekgey, ___ Vt. ___,
___, 576 A.2d 433, 435 (1990).  We see no reason to disturb the exercise of
discretion in the present case.
     For the same reasons, we decline to disturb the trial court's refusal
to require defendant to account for the amount of rental income received
during the pendency of the matter in the trial court.  The court found that
"[a] family in need is presently renting the property for $150 per month
plus utilities on a temporary basis."  Plaintiff does not contest the
defendant's assertion that he bore the cost of taxes, insurance,
maintenance, and other expenses associated with the property during this
period.  There was no evidence as to any net profit or loss during this
period, but it was within the trial court's discretion to exclude the effect
of this marginal income in its consideration of the overall property award,
having noted the amount involved and the nature of the rental.
     The property distribution is reversed and remanded for further
proceedings consistent with this opinion.  The decision below is otherwise
affirmed.

                                        FOR THE COURT:




                                        Associate Justice



FN1.    For purpose of this analysis, we assume, but do not decide, that the
tort actions represented by the claims and counter-claims are appropriate
between spouses.  See Richard v. Richard, 131 Vt. 98, 106, 300 A.2d 637, 641
(1973) (interspousal immunity abolished only for claims arising out of a
motor vehicle accident; "[w]hat other claims should be entertained by our
courts arising between husband and wife must be left to future decisions").

FN2.    Since the amended complaint raised claims independent of the action
for divorce, and the trial court did not address these claims in issuing
its order, that order was not an entry of judgment from which an appeal
could be taken.  See V.R.C.P. 54(b), V.R.A.P. 3, 4.  If nothing more were
involved, we would dismiss the appeal forthwith for want of jurisdiction
since it was not taken from a final order.  However, under the particular
circumstances of this case, such a step is unnecessary.  We conclude that
the trial court should have dismissed the assault and battery claims without
prejudice as claims misjoined with the divorce action and in the interest of
economy treat the appeal as having been taken from a final order.

FN3.    Slansky is complicated by the fact that the tort involved the
change of beneficiary on a health insurance policy that could have been
considered marital property, and by the presence of a property settlement
agreement which was incorporated into the divorce decree.  Defendant's claim
was that plaintiff should have dealt with any claim concerning the change of
beneficiary in the settlement agreement.  Even with this close relationship
between the tort claim and the divorce issues, and the presence of the
agreement, this Court held that res judicata did not apply because the tort
claim was not covered in the settlement agreement.  150 Vt. at 442, 553 A.2d 
at 154.