Mills v. Mills

Mills v. Mills  (96-160); 167 Vt. 567; 702 A.2d 79

[Filed 30-Jul-1997]


                          ENTRY ORDER

                 SUPREME COURT DOCKET NO. 96-160

                        JANUARY TERM, 1997


Jane K. Mills                   }     APPEALED FROM:
                                }
                                }
     v.                         }     Windham Family Court
                                }
Wayne G. Mills                  }
                                }     DOCKET NO. 355-12-93Wmdm


       In the above-entitled cause, the Clerk will enter:

       Plaintiff Jane Mills sued for a divorce in December 1993 and obtained
  a final order of divorce in March 1996.  Defendant Wayne Mills contests (1)
  the valuation of the marital residence, (2) the authenticity of his tone of
  voice on re-recorded tapes, (3) the exclusion of plaintiff's future legal
  services from the property distribution, and (4) twenty-six of the court's
  100 findings of fact.  We affirm.

       Defendant first claims that the appraisal of the marital residence
  offered by plaintiff's expert was flawed and the court erred in relying on
  it.  We will affirm the court's findings of fact in a property distribution
  unless they are clearly erroneous.  Gazo v. Gazo, 8 Vt. L.W. 129, 132 (May
  23, 1997).  The trial court has wide discretion to assess the credibility
  of witnesses and to weigh the evidence before it, including the testimony
  of experts.  Kanaan v. Kanaan, 163 Vt. 402, 407, 659 A.2d 128, 132 (1995). 
  Here, the court chose a value within the outer limits offered by
  plaintiff's and defendant's experts.  We find no abuse of discretion.

       Defendant also claims that the court failed to value the marital
  residence precisely, and this failure requires that we reverse the property
  award.  Although the trial court has broad discretion in distributing
  marital property, the property must be awarded "equitably."  15 V.S.A. §
  751(a).  We cannot review the fairness of a property division if the trial
  court fails to make findings concerning the value of the property.  See,
  e.g., Harris v. Harris, 149 Vt. 410, 420-21, 546 A.2d 208, ___ (1988)
  (reversing because court failed to make findings concerning value of
  personal property owned by parties).

       In this case, plaintiff's expert valued the house at $163,000 and
  defendant's expert valued it at $240,000.  The court found "the
  [residence's] value is considerably closer to Plaintiff's suggested value
  than Defendant's" and concluded that the equity in the property was above
  $35,000.  Based on an undisputed debt of $133,500, for which the property
  was security, these findings placed the value of the residence somewhere
  between $168,500 ($133,500 plus $35,000) and $202,500 (halfway between
  $165,000 and $240,000).  The court's ability to specify a value is limited
  by the evidence before it, and it sometimes must use approximations.  See
  Kanaan, 163 Vt. at 407-08, 659 A.2d at ___; see also Klein v. Klein, 150
  Vt. 466, 469, 555 A.2d 382, ___ (1988) (no error in property distribution
  where court found that office building was worth "at least" $150,000). 
  Further, the failure to value an asset may be considered harmless error if
  it does not affect the final distribution.  See Daitchman v. Daitchman, 145
  Vt. 145, 150, 483 A.2d 270, ___ (1984).

 

       Here, the court awarded the residence to plaintiff for five reasons,
  the primary ones being to provide a homeplace for the children and to give
  plaintiff something in lieu of maintenance in light of defendant's greater
  earning capacity.  In view of the reasons for the distribution, the absence
  of precision in the valuation, if error at all, was harmless.

       Second, defendant claims the court improperly relied on defendant's
  tone of voice as recorded on plaintiff's telephone answering machine.  The
  court considered defendant's tone of voice in deciding that defendant had
  attempted to achieve a property settlement by coercion. Defendant argues
  that plaintiff produced only a copy of the answering machine tape and that
  the best-evidence rule requires the introduction of the original.  See
  V.R.E. 1002.  He further argues that the copy cannot be considered a
  duplicate, which may be admissible in lieu of an original, see V.R.E. 1003,
  because there was no showing that the copying method accurately reproduced
  the original as required by V.R.E. 1001(4).

       The best-evidence rule did not require plaintiff to introduce the
  original tape, nor did it require plaintiff to show that the proffered tape
  was a duplicate.  Plaintiff testified that the original was lost, and there
  was no suggestion that she lost it in bad faith.  In such a circumstance
  the original is not required, and the court may admit other evidence of the
  contents of the original tape.  See V.R.E. 1004(1).  Here, the other
  evidence of the contents of the original was the copy, and the court acted
  within its discretion in admitting it.  Defendant's concern that the
  duplication method was not sufficiently accurate to show the tone of
  defendant's voice goes to weight, not admissibility.

       Defendant's next claim of error is that the trial court abused its
  discretion when it excluded the value of plaintiff's future work as a
  lawyer from the property distribution.  In Klein v. Klein, 150 Vt. at 470,
  555 A.2d at ___, we observed that a "law practice has considerable value
  depending on the extent to which this Court will recognize the components
  of its value." Given the procedural posture of that case, we declined to
  decide whether either goodwill or work in progress of a law practice is
  property subject to distribution.  Id. at 471, 555 A.2d at ___.

       We need not decide the question left open in Klein because the
  undisputed evidence showed that plaintiff had no law practice to value. 
  Plaintiff graduated from law school in 1981 and subsequently worked for two
  years as a full-time associate attorney.  In 1987, after the birth of the
  parties' second child, plaintiff began working on a contract basis for
  other attorneys. Since then, she has been paid on an hourly basis, she
  works out of the office that hires her, and she has no personal equipment
  or supplies.  Using a capitalization-of-earnings method, defendant's expert
  valued plaintiff's future legal services at $240,143, but acknowledged that
  plaintiff's services had no independent value beyond plaintiff's ability to
  perform them.  In light of this testimony, there was no abuse of discretion
  in finding that plaintiff's future legal services had no market value
  subject to distribution.  See Wilson v. Wilson, 741 S.W.2d 640, 647 (Ark.
  1987) (goodwill is subject to distribution only if business has value
  independent of particular individual); Antolik v. Harvey, 761 P.2d 305, 310
  (Haw. Ct. App. 1988) (no goodwill where chiropractic practice was wholly
  dependent on skills of a particular individual); Beasley v. Beasley, 518 A.2d 545, 552 (Pa. Super. Ct. 1986) (sole proprietorship law practice has
  no goodwill because it cannot be sold).  Instead, the trial court properly
  considered plaintiff's future income as a factor in assigning maintenance,
  which it declined to order.  See 15 V.S.A. § 752; Klein, 150 Vt. at 471,
  555 A.2d at ___.

       Finally, defendant claims that twenty-six of the court's 100 findings
  of fact were unsupported by the evidence and that the court committed error
  in adopting verbatim some of plaintiff's requests for findings.  The latter
  claim is clearly rejected by the applicable rules.  See

 

  V.R.C.P. 52(a)(2) (court may adopt verbatim party's proposed findings);
  V.R.F.P. 4(a)(1) (civil rules apply to divorce).  We have examined each of
  defendant's challenged findings and conclude that only one finding -- that
  defendant attempted to seduce plaintiff's best friend in 1978 -- is wholly
  unsupported.  We conclude that this finding is not essential to the court's
  decision and that the error is harmless.  See Plante v. Plante, 148 Vt.
  234, 237, 531 A.2d 926, ___ (1987).

       Two of the challenged findings draw on the record of a separate
  abuse-prevention proceeding filed during the pendency of the divorce
  action.  Defendant argues that the evidence was not before the court in
  this action.  On motion of a party or on its own motion, the court may join
  an abuse-prevention proceeding with a divorce proceeding.  See V.R.F.P.
  4(n)(2).  In effect, the court did that here because it extended the
  abuse-prevention order in its final divorce order.  Even if there was a
  technical failure to join the proceedings, we consider any error in using
  the abuse-prevention record as harmless.  Defendant was a party to the
  abuse-prevention proceeding, was fully aware of that record, and had an
  opportunity to contest the court's findings.

       Affirmed.





                              BY THE COURT:



                              _______________________________________
                              Ernest W. Gibson III, Associate Justice

                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Frederic W. Allen, Chief Justice (Ret.)
                              Specially Assigned