Dreves v. Dreves

DREVES_V_DREVES.91-093; 160 Vt. 330; 628 A.2d 558


 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 91-093


 Janice M. Dreves                             Supreme Court

                                              On Appeal from
      v.                                      Grand Isle Family Court

 Richard F. Dreves                            April Term, 1993


 John P. Meaker, J.

 Catherine E. Clark and Gregory Jeffers, Law Clerk (On the Brief),
   Burlington, for plaintiff-appellant

 Paul D. Jarvis of Jarvis & Kaplan, Burlington, for defendant-appellee


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


      ALLEN, C.J.   Plaintiff appeals from an order of the Grand Isle Family
 Court distributing the marital assets and declining to award maintenance.
 We reverse.
      The parties married in 1984 and separated in January 1990.  Plaintiff
 is now forty-four years old and defendant is age fifty.  Before the
 marriage, plaintiff lived in Pennsylvania, where she earned $19,000 annually
 as an office manager.  After she married defendant, she moved to Vermont
 and was not employed for the first two years.  The trial court characterized
 plaintiff's unemployment as resulting from a mutual agreement, but plaintiff
 argues it was at defendant's insistence.  Plaintiff is currently a personnel
 administration supervisor earning $28,000 annually.  Defendant earns $50,000
 annually at IBM.
      The parties initially lived in defendant's Westford home, and then
 purchased a home in Grand Isle in 1984 for $107,000, $70,000 of which came
 from defendant's funds and the balance from a mortgage of about $37,000.
 The court found that the value of the house doubled during the years it was
 owned by the parties, adding $107,000 in value, for a total of $214,000.
 At the conclusion of the marriage, the parties obtained a home equity loan,
 thereby increasing the total mortgage indebtedness to about $47,000.  Much
 of the home equity loan was used to finance plaintiff's purchase of a new
 $16,000 car.  The resulting net value of the home was about $167,000.
 Based on the court's finding as to the current net equity in the house, the
 total increase in the net value of the house during the marriage was
 approximately $97,000 ($167,000, less the initial $70,000 net value upon
 purchase of the house).
      The court awarded plaintiff $37,000, the car she had purchased (free of
 the home equity indebtedness related to it, which defendant assumes under
 the order), personalty in her possession, and the balance of her future
 college tuition and cost of books not met by her employer (which was paying
 ninety percent).  No specific value was assigned to the tuition and books.
      Defendant received, in addition to the house, an Investors Diversified
 Services investment account valued at $35,502, a tax-deferred savings plan
 at IBM valued at $30,947, an IBM pension plan valued at $40,007, and an IRA
 account valued at $22,106, totalling $128,562, $105,000 of which had been
 acquired during the marriage, according to plaintiff.  The court did not
 make findings on the increase in value in the investment and retirement
 plans, did not rule on plaintiff's contention that reasonable value be
 assigned to her contribution as homemaker during the marriage, and did not
 award her maintenance, which she had sought as an alternative to her request
 for a share of the marital property.  The present appeal followed.
      Plaintiff argues first that the court erred in finding that the current
 value of the homeplace was only $214,000.  We disagree.  Plaintiff's main
 argument is that the court misunderstood the testimony of her expert
 witness, who testified that "[w]ithout any kind of improvement, I would
 suspect that . . . that property would have doubled in value."  Plaintiff
 testified that there were extensive improvements to the property, and the
 court agreed in its findings.  But the court noted that two houses in the
 neighborhood had remained on the market for many months without being sold
 and found that "the real estate market is currently depressed."  It was not
 bound by the testimony of plaintiff's expert.
      Plaintiff also argues that the court should have admitted and
 considered a letter from defendant's counsel conceding that the property's
 value was $250,000.  Whether or not the letter (which did not appear to
 have been written in the context of a settlement offer) should have been
 admitted, it would not have estopped defendant from arguing a lower value
 at trial.  Thus, even if the letter had been admitted, the court's finding
 that the homeplace had a current value of $214,000 would not have been
 clearly erroneous.
      Plaintiff argues that even accepting the court's $214,000 valuation for
 the home, the distribution of marital assets was so inequitable as to
 constitute an abuse of discretion, particularly in light of the absence of
 any explanation for the disparity.  Section 751 of Title 15 requires that
 the court "equitably divide and assign the property" and sets out twelve
 factors that the court "may consider."  15 V.S.A. { 751.  The trial court
 has discretion in considering these factors, and is not required to explain
 the exercise of its discretion with mathematical precision or specify the
 weight given to each of the statutory factors.  Semprebon v. Semprebon, 157
 Vt. 209, 215, 596 A.2d 361, 364 (1991).  Thus, we will not disturb the
 court's findings of fact unless, viewing the evidence in the light most
 favorable to the prevailing party and excluding the effect of modifying
 evidence, a finding is clearly erroneous.  Id. at 214, 596 A.2d  at 363.
      The court's discretion, however, is not unlimited.  We have always
 required that the findings "provide a clear statement as to what was
 decided and why."  Richard v. Richard, 146 Vt. 286, 287, 501 A.2d 1190, 1190
 (1985).  The principal findings in the present case fall far short of that
 mark.  The net value of the homeplace was $167,000 and the total value of
 the financial plans was about $128,500.  Thus, the total value of the
 marital assets at issue, excluding other personalty and the future payments
 for tuition and books, was about $295,500.  Plaintiff received $37,000 or
 about 12.5% of this total amount.  Even if plaintiff's award is considered
 as a share of the net increase in the value of the financial assets during
 the marriage, she received only 18.3% of the total net increase.(FN1)
      The court's only explanation for its decision was its reference to
 findings that this was "a fairly short marriage" and that nearly all of the
 assets were originally attributable to the defendant.  Although { 751(b)(10)
 allows the court to give weight to "the party through whom the property was
 acquired," there are limits to the court's discretion.  The court awarded
 defendant a considerably larger share of the assets than plaintiff despite
 factual findings that plaintiff left her home state and her employment
 there; that she withdrew from the workforce and served as homemaker for two
 years of the marriage with at least the approval, if not the desire, of
 defendant; that defendant's present earning capacity is considerably greater
 than hers; and that since defendant was awarded the homeplace, plaintiff
 will have the expense of finding a suitable place to live.  Far from
 providing a clear statement as to what the court decided and why, it
 offered no explanation for the large disparity in its awards of marital
 property to each of the parties.
      Defendant argues that the court credited him with $70,000 of the
 appreciated value of the house, which was the amount he had originally
 contributed to the purchase price, and awarded plaintiff the remainder of
 the appreciated value of $37,000, and that since plaintiff was awarded all
 of the increase in the equity of the house, there was no error in assigning
 the increase in the other assets to the defendant.
      If this was the rationale employed by the court, it is faulty because
 defendant had already received the amount he contributed toward the pur-
 chase of the house.  The house, valued at $214,000, was decreed to him.
 After deducting the $70,000 he contributed and the $47,000 encumbrance,
 $97,000, not $37,000, in equity remained to be distributed.  Acceptance of
 defendant's explanation would credit him twice for the original
 contribution.
      Compounding the problem for this Court is the absence of specific
 findings as to the percentage of the increase in the value of investment and
 retirement plans during the marriage.  Under 15 V.S.A. { 751(a), "[a]ll
 property owned by either or both of the parties, however and whenever
 acquired, shall be subject to the jurisdiction of the court."  Consequently,
 the court's division of the marital assets was not limited to the increase
 in value during the marriage.  But plaintiff argued for an award that was
 based on what she considered to be a fair portion of the amount of that
 increase.  Without any explanation of the court's methodology, we cannot
 determine whether the $37,000 cash award should be measured against all of
 the marital assets or only the amount of the increase during the years of
 the marriage.
      In sum, the disparity in the property award in the present case is
 significant, and our need for some understanding of the trial court's
 rationale is paramount.  In the absence of a "clear statement as to what was
 decided and why," and "where no indication appears of the method employed
 and weight accorded various factors, remand is necessary."  Richard, 146 Vt.
 at 287, 501 A.2d  at 1190-91.
      We need not reach the question of the court's failure to award
 maintenance, since plaintiff sought maintenance as an alternative to a
 suitable property award, and the court on remand is free to reexamine the
 interrelationship of its property disposition and maintenance determination.
 Klein v. Klein, 150 Vt. 466, 475, 555 A.2d 382, 388 (1988).
      Reversed and remanded.

                                         FOR THE COURT:



                                         Chief Justice



FN1.     Although the court made no findings about the net increases in the
 financial assets over the life of the marriage, the undisputed evidence
 shows that the net increase in the financial assets was $105,000.  Adding to
 that sum the net increase in the value of the homeplace of $97,000, the net
 increase in marital assets at issue totals about $202,000.  Plaintiff's
 share of the total amounts to only 18.3%.