Kohut v. Kohut

KOHUT_V_KOHUT.93-529; 164 Vt 40; 663 A.2d 942

[Filed 21-Jul-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. 93-529


Eileen J. Kohut                                   Supreme Court

                                                  On Appeal from
    v.                                            Chittenden Family Court


William Kohut                                     November Term, 1994



Alden T. Bryan, J.

Sandra L. Baird and Anne S. Locke, Burlington, for plaintiff-appellee

Douglas L. Molde and Leslie Black of Molde & Black, P.C., Johnson, for
defendant-appellant 



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



     MORSE, J.    Defendant-husband appeals a final order of the Chittenden
Family Court challenging, among other things, the maintenance award to
plaintiff-wife.  We affirm. 

     The parties were married for thirteen years and had three children
before they legally separated in 1991. The couple lived in a $400,000 home
and owned two expensive cars and a luxury boat. Both agree, however, that
they lived beyond their means.  The home was sold to pay the marital debts
and the remaining proceeds of $7,087 were put in escrow awaiting the final
disposition of marital property. 

     The court found that defendant had an earning capacity of $65,000 based
on his annual salary at a job which he voluntarily left shortly before the
final hearing.  It further found that plaintiff was a licensed practical
nurse with a part-time job and an earning capacity of $9,000 annually. 
Plaintiff was on welfare at the time of the final hearing because defendant
had failed 

 

to pay temporary maintenance and child support payments as previously
ordered.  The court ordered the payment of $500 per month in permanent
maintenance because it concluded that plaintiff was unable to meet her
expenses without maintenance in addition to child support for the couple's
three children, and because plaintiff's earning capacity would never equal
defendant's. 

     Defendant first argues that because plaintiff did not seek permanent
maintenance he was deprived of the opportunity to be heard on the issue.  He
relies on this Court's decision in Nichols v. Nichols, 133 Vt. 370, 371, 340 A.2d 73, 74 (1975), where we remanded after holding that failure to request
alimony or to indicate that alimony was an issue deprived that defendant of
an opportunity to be heard.  In Nichols, the plaintiff struck out a
maintenance request from a printed form, and there were no temporary
maintenance orders in effect prior to the final hearing.  Id.  In contrast,
here, plaintiff requested maintenance in writing by typing that request onto
a printed form.  In addition, a temporary maintenance order was in effect,
and defendant had already moved to modify that maintenance order three times.
At the commencement of the final hearing, defendant, representing himself
pro se, explicitly agreed with plaintiff's counsel that everything, including
maintenance, was a contested issue.  Defendant was on notice that maintenance
was an issue, and it was not an abuse of discretion for the court to award
maintenance.  See Nevitt v. Nevitt, 155 Vt. 391, 398, 584 A.2d 1134, 1138
(1990) (not abuse of discretion to award maintenance where husband aware wife
seeking "other relief as may be appropriate" and that court would consider
maintenance at later hearing). 

     Defendant next attacks the sufficiency of the family court's findings. 
In order for this Court to overturn a maintenance award, the party seeking
reversal must show there is no reasonable basis for the family court's
decision.  Johnson v. Johnson, 155 Vt. 36, 40, 580 A.2d 503, 506 (1990). 
Maintenance may be awarded under 15 V.S.A.  752(a)(1) where a party has
insufficient income and property to meet reasonable needs.  In determining
the amount and 

 

period of time for which maintenance is to be awarded, the court must
consider a number of factors, including the reasonable needs of the recipient
and the standard of living established during the marriage.  15 V.S.A. 
752(b)(3); Naumann v. Kurz, 152 Vt. 355, 357, 566 A.2d 1342, 1343 (1989). 
Findings are not required for each factor, as long as the court's decision
reflects that the appropriate factors were taken into consideration, and the
court is not required to make findings on factors where no evidence is
presented.  Cf. Poulin v. Upham, 149 Vt. 24, 26 n.*, 538 A.2d 181, 182 n.*
(1987) (applying standard to 15 V.S.A.  665(b) factors governing best
interests of the child). 

     In this case, we conclude that there was a reasonable basis for the
court's decision to award maintenance and that the findings regarding the
reasonable needs of plaintiff were sufficient to support a mere $500 a month
maintenance award.  The family court was clearly influenced by plaintiff's
need to resort to public assistance.  We too believe that financial
dependence upon the State demonstrated an obvious lack of personal income,
property, or both, thereby justifying a maintenance award under 15 V.S.A. 
752(a). 

     We cannot fault the court for not fashioning a maintenance award based
on the exact standard of living established during the marriage.  The parties
agree that they lived beyond their means and were constantly borrowing money
and receiving substantial assistance from defendant's parents.  Because it
was unlikely that such a lifestyle was sustainable after the divorce, it was
not error to fail to make a finding on this factor.  See Bell v. Bell, ___
Vt. ___, ___ 643 A.2d 846, 850-51 (1994) (parties standard of living would
have declined, with or without dissolution of marriage; therefore it was
proper not to base maintenance on standard of living established during
marriage).  Additionally, we have never required mathematical exactitude in
quantifying the amount of an award.  Klein v. Klein, 150 Vt. 466, 468-69, 555 A.2d 382, 384 (1988). 

     Plaintiff submitted her child support guideline information she had
supplied in support of the temporary award of $600 per month. Consequently,
the findings that the couple enjoyed an income of $65,000 per year during the
marriage, that plaintiff required welfare assistance 

 

after the marriage, and that plaintiff's income would never equal defendant's
were adequate to support the $500 per month maintenance award against an
attack by defendant, who benefits from such a nominal award.(FN1)

     Defendant next contends that the trial court erroneously determined that
he had the ability to pay maintenance because it wrongfully imputed his
income using his former $65,000 salary. The trial court found that defendant
voluntarily quit his job and was underemployed as a real estate salesman at
the time of trial. Defendant also testified that while he had not received
any real estate commissions to date, he had listed several homes and sold
one.  More telling, though, was defendant's own testimony that he would take
over his father's real estate business for a "quicker income" and a "better
income."  In fact, defendant claimed that "the sky can be the limit."  Under
these circumstances, it was not an abuse of discretion for the court to
consider defendant's past earnings to predict his future income.  See Scott
v. Scott, 155 Vt. 465, 470, 586 A.2d 1140, 1143 (1990) (permissible to
consider previous wage statements and previous summer's earnings to predict
earning capability in future). 

     Defendant argues that the family court's findings supporting the
valuation and distribution of proceeds from the parties' only substantial
asset, a luxury boat, were clearly erroneous because the court did not
determine the fair market value of the boat and found that the parties owned
the boat free of any liens.  The court's valuation of $68,500 was based on
evidence of the boat's list price. Further, defendant contends that his
mother, with whom he had secreted the boat to avoid its equitable
distribution, had a valid, perfected security interest in it by virtue of a
stipulation and court order requiring the execution of a security agreement.
Defendant failed, however, to introduce any evidence that the security
agreement was ever executed.  Cf. 9A V.S.A.  9-203(1)(a) (formal requisites
of attachment and enforceability of security interest requires signed
security agreement).  Defendant argues that a stipulation between the parties

 < sufficed as a signed writing for purposes of  9-203.  That stipulation and
the court order adopting it state only that "[a] perfected security agreement
. . . shall be executed in favor of Elizabeth Ardale."  (Emphasis added.) 
The stipulation and order contemplate that the agreement to grant a security
interest would be entered into at some later date, if at all.  Consequently,
we cannot say that the court was clearly erroneous in finding that the boat
was unencumbered and ordering its sale and an equitable division of the
proceeds. 

     Further, we disagree with defendant's contention that the trial court
abused its discretion in awarding plaintiff attorney's fees and support
arrearages from defendant's share of the boat proceeds. The award of
attorneys fees and costs is a matter of judicial discretion.  15 V.S.A. 
637.  Given defendant's refusal to pay the court-ordered support in the past,
we see no problem with the court anticipating difficulty in the future. 

     Finally, defendant attacks the impartiality of the family court.  Three
bases underlying defendant's charge, those involving issues of income and
maintenance, debt, and security interests, are meritless given our holding. 
Defendant further claims bias is proved by the court's refusal to grant
defendant an eleventh hour continuance to obtain an attorney.  Defendant
requested this continuance during the first day of trial.  He had already
retained and fired at least three attorneys, and had conducted a fair amount
of his own representation.  Granting a continuance is a matter of discretion.
 Kokoletsos v. Frank Babcock & Son, Inc., 149 Vt. 33, 35, 538 A.2d 178, 179
(1987).  We find no bias, prejudice, or abuse of discretion in the court's
balancing of the interests of everyone involved or in the court's refusal to
grant a continuance on the last day of this protracted divorce proceeding. 

     Affirmed.

                              FOR THE COURT:


                              _______________________________________
                              Associate Justice


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                              Footnotes

FN1.  The dissent would have more force if plaintiff-wife had appealed the
inadequacy of the maintenance award. 



-----------------------------------------------------------------------------
                              Dissenting

 

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. 93-529


Eileen J. Kohut                                   Supreme Court

                                                  On Appeal from
    v.                                            Chittenden Family Court


William Kohut                                     November Term, 1994


Alden T. Bryan, J.

Sandra L. Baird and Anne S. Locke, Burlington, for plaintiff-appellee

Douglas L. Molde and Leslie Black of Molde & Black, P.C., Johnson, for
defendant-appellant 


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


     ALLEN, C.J., dissenting.   Because the trial court's findings are
insufficient for this Court to determine whether $500 in permanent
maintenance is supported by the record, I dissent. 

     The purpose of findings is to provide a clear statement as to what was
decided and why. Klein v. Klein, 150 Vt. 466, 472, 555 A.2d 382, 386 (1988). 
Where there is a shortage or absence of sufficient findings, this Court has
refused to affirm an order.  Strauss v. Strauss, 160 Vt. 335, 340-41, 628 A.2d 552, 555 (1993); see Scott v. Scott, 155 Vt. 465, 471, 586 A.2d 1140,
1143 (1990) (maintenance award reversed for failure to consider defendant's
expenses); Naumann v. Kurz, 152 Vt. 355, 362, 566 A.2d 1342, 1346 (1989)
(inadequate findings cause for reversal); DeGrace v. DeGrace, 147 Vt. 466,
470, 520 A.2d 987, 990 (1986) (findings inadequate to allow Court to
determine basis for award); Cleary v. Cleary, 134 Vt. 181, 182, 353 A.2d 334,
335-36 (1976) (shortage of findings requires reversal where award is
insupportable on record). 

     The majority excuses the lack of findings because there were adequate
grounds for 

 

awarding maintenance and because plaintiff did not appeal the amount.  The
majority further justifies the order by explaining that neither detailed
findings nor mathematical accuracy are required. It also reasons that the
court is not required to make findings on factors where no evidence is
presented. 

     First, adequate grounds for supplemental maintenance, 15 V.S.A. 
752(a), do not support a specific amount of maintenance.  Id.  752(b).  The
majority relies completely on generalities which go to  752(a) rather than
on specifics pertinent to  752(b) to affirm the amount.  We should not
presume either the award's validity or the amount's reasonableness by relying
on the parties' income disparity or plaintiff's resort to public assistance. 
See Cleary, 134 Vt. at 183, 353 A.2d  at 336 (support award might be accurate
reflection of need but "[w]ithout findings to that effect, the issue is in
doubt.").  The statute requires more than a generalized justification of
need; it requires an individualized assessment of the parties' needs.  See 15
V.S.A.  752(b); see, e.g., Naumann, 152 Vt. at 360, 566 A.2d  at 1345
(maintenance award reversed where trial court did not make findings
establishing parties' reasonable needs). 

     Second, the order is insufficient not because of a lack of detail or
mathematical accuracy but because the few findings that were made do not
suggest that the trial court considered the relevant factors required by 15
V.S.A.  752(b).  See Klein, 150 Vt. at 472, 555 A.2d  at 386 (remand
necessary where no indication of method employed or weight accorded factors
in arriving at maintenance decision).  For example, it did not make findings
on either parties' reasonable needs, Naumann, 152 Vt. at 360, 566 A.2d  at
1345, or their expenses, Scott, 155 Vt. at 471, 582 A.2d  at 1143.(FN1)

     Third, the majority cannot shrug off the inadequate findings by blaming
the parties for 

 

the scant evidentiary submissions.  While the parties are responsible for
introducing evidence on relevant factors, when a factor is clearly relevant
to the proper implementation of the statutory scheme and the party fails to
submit evidence on that issue, the resulting order cannot stand.  In this
instance, the most glaring omissions are the lack of evidence on plaintiff's
current expenses and her reasonable needs.  Such information is the
foundation for any maintenance award. 15 V.S.A.  752(a).  Without it, there
is no basis to assess the reasonableness of the award or to determine whether
the award comports with the statute's goals. Instead of determining the
parties' needs or defendant's ability to pay, the court relied on defendant's
imputed income as the sole factual basis to assess the monthly amount.  While
defendant's income was fairly imputed, gross income by itself is factually
inadequate to sustain a maintenance award.  See DeGrace, 147 Vt. at 470, 520 A.2d  at 990 (remanded for clarification where only single finding on
plaintiff's earning capacity supported maintenance award). 

     Also, I cannot condone the trial court's reliance on the family court's
child support guidelines to "guesstimate" a monthly maintenance amount.  This
shortcut is an inadequate substitute for  752(b)'s individualized
assessment of spousal maintenance needs. The guidelines determine child
support based solely on mathematical formulas.  Ainsworth v. Ainsworth, 154
Vt. 103, 113, 574 A.2d 772, 778 (1990).  The calculations recognize only the
parties' gross incomes and do not focus on actual expenses.  Id. at 107, 574 A.2d  at 775.  Unlike  752(b)'s analysis, which considers the parties'
complete financial resources, including the property settlement or the
parties' reasonable needs based on the standard of living established during
the marriage, the guidelines focus on the noncustodial parent's ability to
pay.  Maintenance awards should not be driven by a party's ability to pay,
but by the thoughtful consideration of  752(b)'s seven statutory factors. 
Such consideration ensures a fair resolution. 

     The lack of findings is also disturbing considering that the court
awarded permanent maintenance.  In Strauss, we distinguished the purposes of
rehabilitative and permanent maintenance, and identified several critical
factors that the trial court should consider when 

 

fashioning a permanent maintenance award. 160 Vt. at 338-42, 628 A.2d  at
553-555.  There is barely a hint that the trial court incorporated these
important factors.  The only explanation of the award suggests that it was
punitive rather than compensatory in nature.  Specifically, the court ordered
defendant to pay maintenance "because the plaintiff has had to go on welfare
on account of his voluntary underemployment and his refusal to make his
[support] payments when he did have the income."  While this reasoning
highlights plaintiff's need for supplemental support, it does not assist this
Court in determining whether a permanent or rehabilitative award is
appropriate. 

     This has been a protracted and contentious divorce and is in dire need
of finality, but I cannot affirm an order so lacking in support.  It is this
Court's responsibility to ensure that the trial court exercises its
discretion within the bounds of  752(b).  As is often the case when
shortcuts are taken, compromises are made. While a trial court has wide
discretion on maintenance issues, it must be exercised within the confines of
the statute.  There is nothing in this record to indicate that this was done.
As a result, this Court cannot decipher whether the permanent award was
proper, inadequate or excessive.(FN2)

     Ordinarily, I would recommend a reversal and remand for the purpose of
supplying or correcting findings, but the sparse record convinces me that a
new hearing is necessary to cure the deficiencies. 


                              _______________________________________
                              Frederic W. Allen, Chief Justice



-----------------------------------------------------------------------------
                              Footnotes


FN1.  Defendant had submitted an affidavit of his income, assets, and
expenses at the time of trial. Plaintiff submitted the child support
worksheet from an earlier, related proceeding, which revealed her gross
monthly income, but not her actual expenses or needs.  The court chose not to
make any findings based on these limited submissions. 

FN2.  The child support guidelines worksheet submitted by plaintiff most
likely underestimated her reasonable needs because it determines need based
on minimal support requirements rather than plaintiff's needs in relation to
the standard of living established during the marriage.