Soutiere v. Soutiere

SOUTIERE_V_SOUTIERE.93-451; 163 Vt 265; 657 A.2d 206

[Filed 17-Feb-1995]

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. 93-451


Pauline B. Soutiere                               Supreme Court

                                                  On Appeal from
          v.                                      Chittenden Family Court

Roger A. Soutiere                                 June Term, 1994


Alden T. Bryan, J.

Kurt M. Hughes of Murdoch & Hughes, Burlington, for plaintiff-appellee

Norman R. Blais, Burlington, for defendant-appellant


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


     GIBSON, J.   Defendant husband appeals from a final divorce order of the
Chittenden Family Court, alleging error in the court's admission of expert
testimony on battered-woman syndrome, and also challenging the court's
property and maintenance awards in favor of plaintiff wife.  We affirm. 

     Plaintiff and defendant married in February 1966.  The parties remained
together for twenty-seven years, and raised two daughters.  During the
marriage, defendant was the primary income-provider, working at IBM for
twelve years before taking early retirement in 1992.  In his last full year
of employment in 1991, defendant earned over $41,300.  Defendant supplemented
his IBM income with work as a barber, bringing in an additional $200 to $500
a 

 

week.  Defendant, age fifty-one at the time of divorce, continues to work
as a barber.  Although plaintiff worked as a beautician prior to marriage, at
defendant's behest she stayed home and raised the parties' children.  Only
when the children were older did she seek work outside the home.  At that
time, her employment was limited by defendant's demand that she not work in
any job where there would be men in the workplace.  At the time of divorce,
plaintiff was forty- seven years old, and had been working for six years
part-time in a retail shop.  In 1992, plaintiff's earnings were just over
$4,300.  Plaintiff does not enjoy good health, in part due to defendant's
abusive treatment of her during the marriage, and this limits her ability to
work. 

     The family court found that the parties' marital assets totalled
$177,500, not including the value of defendant's IBM pension.  The court also
found that plaintiff and defendant had roughly equivalent credit card debt of
about $6,000 and $6,550, respectively.  The court awarded plaintiff 59% of
the parties' property, including the marital residence, for a total value of
$105,250, plus 75% of defendant's pension.  Of this amount, $11,681 was
attributed to defendant's arrearages in paying temporary maintenance,
property taxes and unreimbursed medical bills.  The court also awarded
plaintiff $125 a week in permanent maintenance, or $6,500 annually. 

     Before analyzing defendant's claims of error, it is appropriate to
address one point that appears in each claim.  Defendant faults the court
because, with only minor modifications, it adopted the extensive findings of
fact, conclusions and order proposed by plaintiff.  This practice is
specifically authorized by V.R.C.P. 52(a)(2), and made applicable to divorce
proceedings by V.R.F.P. 4(a).  As long as the findings reflect careful review
of the evidence, they are not reversible because they are based on a party's
proposals.  Reporter's Notes to 1987 Amendment 

 

to V.R.C.P. 52(a).  The findings here embody a thorough review of the
evidence as well as consideration of each of the relevant statutory factors
in determining the award of property and maintenance. 

     We reiterate, however, that the better practice is for the court to
prepare its own findings.  Proposals often have an unnecessarily adversary
tone.  Thus, plaintiff proposed, and the court adopted, a conclusion that
read, "There are not enough assets in the entire marital estate to compensate
the Plaintiff adequately for the Defendant's behavior."  Defendant cites this
sentence as proof that the court intended a one-sided property award to
punish defendant.  The reality is different, as set out below, but the
language chosen provides support for defendant's complaint. 

     Defendant first challenges the court's allowance of expert testimony
concerning plaintiff's affliction with a version of post-traumatic stress
disorder (PTSD), commonly known in this context as battered-woman syndrome. 
At trial, plaintiff testified to numerous instances of physical and
psychological abuse she suffered during her marriage to defendant.  Although
defendant denied many of plaintiff's allegations, he admitted at trial to
making plaintiff shave her pubic hair while on their honeymoon, marking her
entire body with lipstick and writing profanity on her stomach while she was
pregnant, and swearing at plaintiff and accusing her of infidelity if she
returned home from work late.  Plaintiff secured a relief-from-abuse order
against defendant in 1992. 

     To help explain the impact of the abuse on plaintiff, she offered expert
testimony on PTSD and battered-woman syndrome.  Plaintiff argued that the
testimony was relevant and helpful on the property and maintenance issues
before the court.  Defendant objected to the 

 

expert testimony, arguing that expert testimony on post-traumatic stress
disorder resulting from abuse was admissible only to explain the victim's
bizarre behavior and that the expert was prohibited from giving her opinion
that plaintiff suffered from PTSD or battered-woman syndrome.  The court
accepted plaintiff's offer and admitted the testimony. 

     Trial courts have wide discretion in making evidentiary rulings, and we
will not overturn the court's decision in the absence of an abuse of
discretion.  State v. Hunt, 150 Vt. 483, 501, 555 A.2d 369, 380 (1988). 

     V.R.E. 702 makes admissible expert testimony that will help the trier of
fact understand the evidence or determine a fact in issue.  Expert testimony
in the form of an opinion is not objectionable merely because it embraces an
ultimate issue the fact-finder must decide.  V.R.E. 704; see also State v.
Norton, 134 Vt. 100, 104, 353 A.2d 324, 326 (1976) (officer's opinion
testimony that defendant was under influence of intoxicating liquor was
properly admitted as opinion evidence in driving-under-the-influence
prosecution).  Indeed, "[o]pinion evidence has no probative value greater
than the reasons which support it.  It does not establish a material fact as
a matter of law and is not of controlling effect."  Norton, 134 Vt. at 103,
353 A.2d  at 326. 

     In determining property and maintenance issues, the family court is
authorized by statute to consider certain relevant factors.  See 15 V.S.A.
 751(b) (property) & 752(b) (maintenance).  In this case, expert
testimony was offered and admitted to assist the court in this respect.  See
15 V.S.A.  751(b)(2) (health of parties); id.  751(b)(4) (employability);
id.  751(b)(12) (respective merits of parties); id.  752(b)(5) (physical
and emotional condition of parties); cf. Knock v. Knock, 621 A.2d 267, 274
(Conn. 1993) (expert opinion that wife manifested battered-woman's syndrome
admissible to help court determine child custody); In re 

 

Marriage of Mitchell, 809 P.2d 582, 585 (Mont. 1991) (in proceeding to modify
custody, social worker could testify as expert on proper custodian and, as
basis for her opinion, state that she believed one parent had abused the
child).  In addition, plaintiff offered the expert's testimony to explain why
she had remained in the marriage for so long despite defendant's abusive
treatment. Cf. Blair v. Blair, 154 Vt. 201, 203-05, 575 A.2d 191, 192-93
(1990) (trial court erroneously relied on popular misconception that abused
wife could have left abusive husband at any time). 

     Defendant argues that the expert's opinion should not have been admitted
because it was based on the expert's belief that plaintiff was the victim of
abuse, both physical and verbal, at the hands of her husband.  He argues that
controlling here is a line of decisions arising from child sexual-abuse
prosecutions where we prohibited expert opinion testimony that the victim had
been sexually abused.  See, e.g., State v. Weeks, 160 Vt. 393, 400, 402-03,
628 A.2d 1262, 1266-67 (1993); State v. Sims, 158 Vt. 173, 178-81, 608 A.2d 1149, 1152-54 (1991). 

     Defendant reads the criminal cases as an outright ban on the use of
expert testimony on PTSD unless it is offered solely to explain bizarre
behavior of the victim.  In the context of this case, the testimony was
relevant and helpful on issues distinct from those tried in child sexual-
abuse prosecutions.  Unlike child sexual-abuse prosecutions, the severity and
long-lasting effects of defendant's abuse on plaintiff's emotional health,
her future counselling needs, and her potential employability were at issue
during the trial.  The severity of the victim's injury is not pertinent in
child sexual-abuse prosecutions where the trier of fact must determine only
whether the charged conduct occurred and the perpetrator's identity. 

     We note that defendant's cross-examination of plaintiff's expert
adequately protected 

 

against the trial court giving undue weight to the expert's opinion that
plaintiff suffered from PTSD as a result of defendant's abuse.  See Cappiallo
v. Northrup, 150 Vt. 317, 319-20, 552 A.2d 415, 417 (1988) (with assistance
of cross-examination, it is for fact-finder to measure worth of expert's
opinion); cf.  MMOE v. MJE, 841 P.2d 820, 826-27 (Wyo. 1992) (evidence of
psychologist concluding that mother had sexually assaulted child was
admissible; "the existence of sexual abuse and the method of determining
whether the son had been sexually abused became a battle between experts,"
which trier of fact could resolve by deciding which expert was more
convincing).  We conclude that the family court judge properly exercised his
discretion in admitting the evidence after finding the expert's opinions
helpful "to understand the evidence" bearing on property distribution and
maintenance. 

      We briefly address defendant's two other arguments concerning property
division and the award of permanent maintenance.  Defendant attacks the
property distribution as overwhelmingly one-sided in plaintiff's favor.  That
characterization might be accurate if we ignore the value of a condominium in
Craftsbury Common, which the court included as a marital asset and
distributed to defendant.  Defendant challenges the decision to include the
condominium in the marital assets. 

     The court included the condominium because there was evidence that
defendant purchased it with money given to him by his father and sister. 
Defendant placed this money in his girlfriend's checking account and then
used this money to purchase the condominium, titling it in the girlfriend's
name alone.  When questioned by plaintiff's counsel, defendant stated that he
put the money from his family in the girlfriend's account "[s]o my wife
wouldn't come after the money," and thus could not get a "piece of the
action."  Following the girlfriend's death, 

 

defendant used a power of attorney granted him by her to quitclaim the
condominium to himself. At the time of trial, defendant continued to reside
in this condominium. 

     This case falls squarely within a line of recent decisions giving family
court judges the power to include within marital assets property which has
been placed in other names to avoid distribution to a spouse.  See Nuse v.
Nuse, 158 Vt. 637, 637, 601 A.2d 985, 985-86 (1991); Bassler v. Bassler, 156
Vt. 353, 363, 593 A.2d 82, 88 (1991); Nevitt v. Nevitt, 155 Vt. 391, 400, 584 A.2d 1134, 1139-40 (1990); Clayton v. Clayton, 153 Vt. 138, 142, 569 A.2d 1077, 1079 (1989).  As we stated in Nevitt, we will not condone and give
effect to such action "when taken with intent to deprive one's spouse of a
fair portion of the marital assets."  Nevitt, 155 Vt. at 400, 584 A.2d  at
1139. 

     The court's findings with respect to the condominium are not clearly
erroneous and must stand.  V.R.C.P. 52(a)(2).  In turn, the conclusions are
supported by the findings and, therefore, are not erroneous. 

     When we include the value of the condominium, the distribution gave
defendant roughly 40% of the assets.  The family court based this award on a
careful consideration of each of the factors specified in 15 V.S.A. 
751(b).  In addition, it used the property award to reimburse plaintiff for
$11,680 defendant owed under the temporary order for maintenance, property
taxes on the house, and reimbursement of plaintiff's medical bills.  If we
subtract out this reimbursement, the distribution is close to 50% each.  The
court has considerable discretion in making a property award, reversible only
on a showing there is no reasonable basis to support it.  Bell v. Bell, ___
Vt. ___, ___, 643 A.2d 846, 850 (1994).  There is no abuse of discretion

 

here. 

     Defendant also challenges the court's maintenance award, arguing that
the court failed to consider his ability to pay.  Based on its findings, the
family court concluded that plaintiff was unable to provide for her
reasonable needs following the dissolution of the marriage and could not
support herself through employment at the standard of living established
during the marriage.  It fully evaluated the factors set forth in 15 V.S.A.
 752(b), including the extent to which the property award would meet
plaintiff's needs, and awarded permanent maintenance of $125 per week,
adjusted annually for inflation. 

     To render a successful challenge to a maintenance award, a party "must
show that there is no reasonable basis to support it."  Bancroft v. Bancroft,
154 Vt. 442, 445, 578 A.2d 114, 116 (1990).  Defendant fails to make such a
showing.  As a threshold matter, this case presents a fairly classic fact
pattern supporting the award of permanent spousal maintenance.  The parties
were married for a number of years, during which plaintiff remained at home
to tend the marital home and raise the parties' daughters.  As a result, the
skills she once held as a beautician became outdated.  Plaintiff did seek
employment later in the parties' marriage, but was limited in her pursuits by
defendant's demand that she not take a position where any of her co-workers
were men.  Moreover, she is unable to maintain full-time employment due to
her poor health. On similar facts, we have held that maintenance was
awardable as a matter of law.  See Strauss v. Strauss, 160 Vt. 335, 342, 628 A.2d 552, 556 (1993); see also Klein v. Klein, 150 Vt. 466, 475-77, 555 A.2d 382, 388-89 (1988) (wife with no college education and limited recent work
experience entitled to maintenance after devoting most of lengthy married
life to raising parties' children and supporting development of husband's
career).  We see no reason to conclude differently on the facts of this case.

 

     Defendant argues that the family court failed to find that he had the
ability to pay the maintenance award.  While conceding that he expected to
earn $24,000 a year as a barber, at a time when he was working only three
days a week, defendant now complains that the court did not make findings
regarding his present living expenses or his anticipated future living
expenses.  The short response is that the court made no findings on
defendant's living expenses because he proposed none; his evidence on this
issue was only that he had a monthly mortgage payment of about $442, and his
credit card debt stood at about $6,550.  Moreover, as the family court found,
defendant repeatedly refused to respond to plaintiff's discovery requests for
financial information.  Given the evidence available to it, we conclude the
court acted reasonably and within its discretion.  See Milligan v. Milligan,
158 Vt. 436, 441, 613 A.2d 1281, 1284 (1992) (where defendant failed to
respond to discovery and offered conflicting evidence on ability to cash out
his pension, court could act on limited information it had and assume such
cash-out was possible). 

     Affirmed.

                                        FOR THE COURT:



                                        _____________________________
                                        Associate Justice


-----------------------------------------------------------------------------
                            Concurring
 

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. 93-451


Pauline B. Soutiere                               Supreme Court

                                                  On Appeal from
          v.                                      Chittenden Family Court

Roger A. Soutiere                                 June Term, 1994


Alden T. Bryan, J.

Kurt M. Hughes of Murdoch & Hughes, Burlington, for plaintiff-appellee

Norman R. Blais, Burlington, for defendant-appellant


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

     Morse, J., concurring.  I concur in the result, but do not agree that
all the expert's opinions were admissible.  I do not question the
admissibility of the opinion that plaintiff suffered what is commonly known
as post traumatic stress disorder (PTSD).  The expert made this determination
based on plaintiff's symptoms of anxiety attacks, exaggerated startle
response, low self-esteem, fatigue, depression, suicidal ideation,
nightmares, and flashbacks.  The fact that plaintiff suffered from PTSD was
all that was relevant or necessary to decide the issues this Court finds
important -- plaintiff's emotional health, counseling needs, and
employability. 

     I do question, however, the admissibility of the opinion that plaintiff
suffered from a subcategory of PTSD known as battered woman's syndrome (BWS).
 That opinion was based 

 

solely on the history plaintiff gave the expert that she had been battered by
her husband.  A diagnosis of BWS was relevant only to the issue of
defendant's fault -- who and what caused plaintiff's mental disorder.  The
expert's opinion was nothing more than a disguise for placing plaintiff's
prior consistent statements about being abused by her husband before the
court, this time with the expert's imprimatur upon them. 

     This type of credibility bolstering is inadmissible.  Diagnosis by an
expert witness that a person suffers a particular syndrome disorder that must
have been caused by a particular person or in a particular way encroaches on
the fact-finder's province of determining credibility. The science of truth
detection is not sufficiently reliable to warrant admissibility of an
expert's acceptance of a victim's story under V.R.E. 702.  See State v.
Wetherbee, 156 Vt. 425, 431, 594 A.2d 390, 393 (1991) (expert may not assume
role of "truth detector" because no expertise in determining truth).  Simply
put, an expert has no more reliable method of determining credibility than an
average person and, therefore, does not "assist" the fact finder under V.R.E.
702. 

     The rationale used to exclude expert diagnosis of child abuse syndrome
in criminal cases applies equally, in my opinion, to limit expert diagnosis
of battered women's syndrome in divorce proceedings.  See V.R.E. 1101 (V.R.E.
702 applicable to all proceedings); see also In re Gina D., 645 A.2d 61,
63-65 (N.H. 1994) (court's reliance on expert's testimony that father
sexually abused daughter reversible error in civil abuse proceeding because
expert's testimony not sufficiently reliable). 

     In the context of this case, however, the error was harmless.  The
record demonstrates that the trial court recognized that the expert could not
simply be a conduit for plaintiff's 

 

complaints.  Moreover, the overwhelming evidence given defendant's admissions
demonstrates the family court would have reached the same result.  Similarly,
although evidence is not made admissible simply because the fact-finder is a
judge and not a jury, the prejudice caused by the admission, if any, is
easier to detect and weigh on appeal because the court makes findings of fact
and conclusions of law.  The court made five pages of findings detailing the
abuse as told by the parties before even considering the expert's testimony. 



          Associate Justice