Turner v. Turner
Annotate this Case
Turner v. Turner (2003-068)
2004 VT 5
[Filed 15-Jan-2004]
ENTRY ORDER
2004 VT 5
SUPREME COURT DOCKET NO. 2003-068
OCTOBER TERM, 2003
Brenda Turner } APPEALED FROM:
}
}
v. } Franklin Family Court
}
David Turner }
} DOCKET NO. 168-6-01 Frdm
Trial Judge: Howard E.
VanBenthuysen
In the above-entitled cause, the Clerk will enter:
¶ 1. Wife appeals from the trial court's final divorce order. She
argues that the trial court erred in: (1) determining the value of the
parties' second home; (2) unfairly dividing the marital assets; and (3)
refusing to award the full amount of attorney's fees that she requested.
We affirm in part and reverse and remand the trial court's partial award of
attorney's fees.
¶ 2. Husband and wife were married for approximately sixteen years
and have one child together. They were separated in July 2001, and wife
initiated divorce proceedings. Both parties are in their late forties and
in good health. Both are employed. Wife proposed a property distribution
that would afford her approximately 39% of the value of the marital
property, while husband would receive 61%. After a hearing, the court made
extensive findings and distributed the parties' assets. Although the court
disagreed with several of wife's proposed valuations of the marital assets,
such as the value of the marital home and husband's business, it did not
disagree with the general plan of distribution that she proposed. The
court awarded wife the marital assets she requested, which resulted in
husband receiving a 57% share of the marital assets and wife a 43% share.
¶ 3. The court also awarded wife $1000 of the $8000 in attorney's
fees that she incurred. The court explained that under the "American rule"
of attorney's fees, parties are generally expected to bear their own fees
in litigation unless a statutory or rule-created exception exists. The
court found that while certain statutory exceptions existed, none applied
in this case, and there was no general right to attorney's fees in divorce
proceedings under Vermont law. Thus, the court declined to consider the
parties' respective incomes and financial circumstances in making its
award. The court concluded that, in the absence of any generalized
statutory authority to award attorney's fees, it could depart from the
American rule only in an "exceptional case," and then only where the party
against whom fees were sought acted in an obstructionist or unconscionable
manner. See DJ Painting, Inc. v. Baraw Enter., Inc., 172 Vt. 239, 246,
776 A.2d 413, 419 (2001). After reviewing the pleadings in the context of
the overall case, the court concluded that wife had been forced to pay for
five hours of extra legal work due to husband's unnecessary intransigence.
It thus awarded her $1000 and denied her request for additional attorney's
fees. Wife filed a post-judgment motion for new findings, conclusions of
law, and order, which the court denied in all aspects relevant here. Wife
then appealed to this Court.
¶ 4. Wife first argues that the court erred in determining the
fair market value of the parties' second home ("little house").
Specifically, she argues that the court erred by subtracting the costs
needed to improve the property from the appraised value, rather than
accepting the appraisal "as is" and adding those numbers to the appraisal
if, in fact, those expenditures were incurred.
¶ 5. We find no clear error in the court's determination of the
property's fair market value. See Kanaan v. Kanaan, 163 Vt. 402, 405, 659 A.2d 128, 131 (1995) (Court will not disturb trial court's findings of fact
unless they are clearly erroneous). The trial court is entitled to wide
deference on review because it is in a unique position to assess the
credibility of the witnesses and weigh the evidence presented. Id. In
this case, the appraiser assessed the "as is" value of the property at
$115,000. The appraiser noted that the house needed extensive repairs,
including repairs to the roof, porch, septic system, bathroom, and interior
surfaces, which reduced its value by $7000. The court agreed with
appraiser on the cost of the repairs; contrary to appellant's argument,
however, the court did not subtract those costs from the property value.
Rather, in its final order, the court explicitly rejected the appraiser's
estimate with regard to the "as is" value of the property, stating that
"upon review of the appraisal and based on the testimony of the parties and
[the appraiser], the court agrees with the defendant that the Little house
is worth less than [the appraiser] suggests. Accordingly, the court
concludes and finds that the Little house has a present value of 108,000."
The court's finding is supported by the evidence, and it is not clearly
erroneous.
¶ 6. Wife next argues that the court erred in distributing the
marital property. Specifically, she maintains that she did not seek 39% of
the marital assets, as the court found, but instead requested an equal
distribution. She asserts that the court improperly ignored her request
that husband pay her $26,932 to equalize her proposed distribution. She
also maintains that the court made a finding of fault, but failed to follow
through on its finding in distributing the assets. Thus, she argues that
the court's findings are clearly erroneous "because it failed to consider
many factors, including fault and appreciation of assets as well as major
situations that would have made the distribution of assets more equitable."
¶ 7. The division of marital property is governed by 15 V.S.A. §
751, which grants the court authority to "equitably divide and assign the
property," and sets out a number of factors that the court may consider in
making its decision. Cabot v. Cabot, 166 Vt. 485, 500, 697 A.2d 644, 654
(1997). The trial court has broad discretion to consider the statutory
factors and fashion an appropriate order, but it must provide a clear
statement as to what was decided and why. Id. We have noted that the
distribution of property is not an exact science and, therefore, all that
is required is that the distribution be equitable. Lalumiere v. Lalumiere,
149 Vt. 469, 471, 544 A.2d 1170, 1172 (1998).
¶ 8. In this case, the court generally followed wife's plan in
distributing the parties' assets. Wife's distribution plan contained the
following statement: "$26,932 to equalize from second mortgage on little
house plus $1,593.13 reimbursement." The evidence indicates that there is
no mortgage on the little house. However, wife testified at trial that it
would take about $27,000 to equalize the property distribution and make up
the difference between the profit from the sale of the big house and the
value of the little house. She stated that husband could take out a
mortgage on the little house to pay whatever property settlement was
necessary. While the court did not directly address this request, it
considered the statutory factors and made extensive findings to support its
award. The court noted that the little house had been in husband's family
for many years, and that he brought it into the marriage. The court did
not find fault, as plaintiff urged. The court awarded wife all of the
marital assets she requested. As a result, wife received approximately 43%
of the marital assets while husband received approximately 57%. In support
of its award, the court explained that, because both parties were gainfully
employed and healthy, and in the absence of fault, and because both are
capable of working for many more years, the amount of property awarded to
each did not need to be precisely equal to be fair. The court explained
that the parties appeared to live a modest middle-class lifestyle and
dividing the property in a roughly unequal fashion was not unfair to
either. We conclude that the court's award was equitable, and we find no
abuse of discretion.
¶ 9. Finally, wife asserts that the trial court erred in refusing
to award her the full amount of attorney's fees that she requested. She
argues that the court misstated the law governing the award of attorney's
fees in divorce cases. We agree. Attorney's fees are recoverable in
divorce actions generally as "suit money." See 15 V.S.A. §§ 606, 607;
Downs v. Downs, 159 Vt. 467, 471, 621 A.2d 229, 231 (1993); Milligan v.
Milligan, 158 Vt. 436, 444, 613 A.2d 1281, 1286 (1992) (trial court may
award attorney's fees in a divorce action in its discretion). The
assessment of such fees is proper "where justice and equity so indicate."
Nevitt v. Nevitt, 155 Vt. 391, 399, 584 A.2d 1134, 1139 (1990) (quoting
Peatman v. Peatman, 140 Vt. 532, 534, 442 A.2d 1290, 1291(1982)). The
primary consideration in awarding attorney's fees is the ability of the
supporting party to pay and the financial needs of the party receiving the
award. Id. (citing Ely v. Ely, 139 Vt. 238, 241, 427 A.2d 361, 363
(1981)). As we explained in Ely, 139 Vt. at 242, 427 A.2d at 364
the peculiar nature of divorce and similar actions, involving
almost always the financial circumstances and abilities of the
parties as matters in controversy, and being matters of common
occurrence in the trial courts, obviates the necessity for a
separate hearing, or the taking of particular evidence, on the
question of awarding of attorney fees or suit money. In the
usual, and vast majority of, cases such allowance borders on
judicial routine, and is supported by evidence bearing on the
circumstances of the parties generally.
¶ 10. Here, the trial court concluded that there was no general
right to attorney's fees in divorce cases, and it therefore declined to
evaluate the parties' financial needs and ability to pay. This holding was
erroneous. While the trial court has discretion in awarding attorney's
fees, its misapprehension of the proper standard for evaluating such a
request requires that its partial award of attorney's fees be reversed and
remanded for reconsideration. See Begins v. Begins,168 Vt. 298, 305-06,
721 A.2d 469, 474 (1998) (court's failure to address parties' respective
financial needs and ability to pay warranted reversal of attorney's fee
award and reconsideration of issue on remand).
Affirmed in part, and award of attorney's fees reversed and remanded.
------------------------------------------------------------------------------
Dissenting
¶ 11. JOHNSON, J., dissenting. I do not agree that the property
distribution was equitable in this case. Although the trial court thought
it was giving wife exactly what property she requested, it overlooked that
her request for property with a lesser value included a cash payment to
make up the difference in the value of property awarded to husband. As a
result, the award was unequal in a case in which the findings indicate
that, absent the efforts of wife and despite the negative actions of
husband, there would have been no marital estate to distribute. Wife
brought the error to the trial court's attention through a scatter-shot
post-trial motion. That may be why the trial court ruling on the motion
addressed some issues specifically, and indicated that all other issues
were denied. Because the ruling on the post-trial motion did not directly
address the equalization issue, all we know is that it was denied. Trial
courts enjoy broad discretion to distribute marital property, see Cabot v.
Cabot, 166 Vt. 485, 500, 697 A.2d 644, 654 (1997); however, the denial of
plaintiff's post-trial motion, in light of the error and the equities as
weighed by the court itself, is inexplicable. It is either a mistake or an
abuse of discretion. Therefore, I respectfully dissent from the
majority's opinion that the trial court carefully weighed the 15 V.S.A. §
751 factors and made an equitable distribution. I would reverse and remand
both because wife should have been awarded her attorney's fees, as the
majority holds, and for reconsideration of the property distribution.
¶ 12. Given the trial court's findings, it is hard to affirm an
unequal division of property in this case, especially because the record
does not indicate that the trial court carefully exercised its discretion
when it denied wife's post-trial motion. It is a more likely conclusion
that, in the numerous issues that were presented for reconsideration,
wife's claim that the court had misunderstood her request was overlooked.
The court may also have thought that its refusal to change the value of one
of the assets, the little house, resolved the equalization issue. In
fact, the court's resolution of the valuation issue did not affect the
disparity wife sought to equalize. Accepting the court's valuation, wife
still requested a cash equalization of $16,000. The original opinion
acknowledges the inequality in distribution and justifies it by stating
that the division does not have to be equal and that the court agrees in
principle with wife's proposal. It is one thing to approve an unequal
distribution that wife requested; it is another to approve it on the same
ground when wife points out that the court misunderstood her claim and she
has the trial exhibit to prove it. The majority opinion glosses over this
by pointing to the original decision, which begs the question.
¶ 13. Moreover, it was not necessary for the trial court to have
found fault in the break up of the marriage to conclude that the equities
substantially favored wife and should have been recognized in the property
distribution. See 15 V.S.A. § 751(b)(12) (court may consider the
"respective merits of the parties"). As the trial court found, wife acted
to preserve what few assets the parties owned. Indeed, almost the entire
the decision centers on husband's destructive conduct with respect to the
assets - his intransigence in selling the marital home, his failure to pay
the taxes, and failure to maintain the house, leaving it in a "filthy,
uncleaned condition, . . . [with] junk cars and trailers and other debris
on the site." Husband's actions required that wife advance funds at the
closing for repairs and cleanup. The funds came from another asset that
husband had virtually abandoned, an insurance policy on which he failed to
pay the premiums. Husband failed to make support payments, ran up credit
card debt, failed to give wife money for groceries and child care, and in
the trial court's opinion, lied about his income. Husband also
precipitated the disintegration of the marriage by physically abusing wife
- a fact that the trial court includes in its findings, but does not
discuss when reviewing the statutory factors that guide the property
distribution decision. After making these findings, it is not surprising
that the trial court agreed with wife's request. As I stated previously,
the trial court's original opinion and its ruling on wife's post-trial
motion never addressed the equalization aspect of wife's plan. As a
result, wife received only 43% of the marital estate, according to the
trial court's belief that this was her complete proposal.
¶ 14. Under these circumstances, it is hard to affirm the decision.
It is true that property distribution does not have to be exactly equal,
but we should not affirm an unequal distribution that is not supported by
the evidence and is unaccompanied by an explanation. Cf. Hayden v. Hayden,
2003 VT 97, 9 (2003) (remanding property distribution based on faulty
valuation when trial court opinion "contain[ed] no discussion that could
assist this Court in meaningful review"). Accepting the trial court's
valuation of the total marital estate, with which I agree, wife should have
received an additional $16,000 from husband to equalize the distribution.
This was not a wealthy marriage, but that is all the more reason that wife,
who works as a bookkeeper, should receive her due. Wife has custody of the
parties' only child, and at the time of the hearing, wife was forty-nine
years-old and she and her son were living with wife's mother. The
additional $16,000 in equalization that her plan called for might have
allowed her a down payment on a home, or a contribution to a retirement
fund. See 15 V.S.A. § 751(b)(6) (court may consider the "needs of each
party").
BY THE COURT:
Dissenting:
____________________________________ ______________________________________
Denise R. Johnson, Associate Justice Jeffrey L. Amestoy, Chief Justice
______________________________________
John A. Dooley, Associate Justice
______________________________________
Marilyn S. Skoglund, Associate Justice
______________________________________
Paul L. Reiber, Associate Justice
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
