Nuse v. Nuse

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 90-441

                              APRIL TERM, 1991


 Eric C. Nuse                      }          APPEALED FROM:
                                   }
                                   }
      v.                           }          Lamoille Superior Court
                                   }
                                   }
 Jane F. Nuse                      }
                                   }          DOCKET NO. S0045-89LaF


              In the above entitled cause the Clerk will enter:

      The main issue in this appeal of a divorce order distributing marital
 property is the treatment of a house in which appellant Eric Nuse resided
 with his fiancée at the time of the divorce hearing.  In 1989, appellant's
 sister sold the house to his fiancée for $67,000, approximately $19,000 less
 than its value.  Appellant's mother provided the fiancée a gift of $21,000
 to make the downpayment.  The fiancée took out a mortgage, and appellant has
 provided 50% of the payments each month.  Appellant's mother advanced
 $40,000 to the fiancée to make improvements to the house, taking back an
 unsecured note which the court found was not expected to be paid "until the
 distant future if at all."  Appellant and his fiancée plan to marry
 immediately after the divorce is final.  Based on the above findings, the
 court concluded that appellant "has an equitable interest of at least 50%"
 of the $80,000 equity in the house and considered that interest in dividing
 the marital property.  On appeal, appellant argues that this conclusion is
 erroneous and the court could not consider the house because it was owned
 solely by the fiancée.

      If the court erred in labeling appellant's interest in the house as an
 "equitable interest," the error was harmless.  The court found that the
 placement of the title in the fiancée was part of an overall attempt to be
 "less than candid with the court regarding income and assets," including a
 failure to disclose a $200-per-month gift to appellant from his mother and a
 change in the method of expense accounting in his business to make the pro-
 fit look smaller.  The situation is similar to that in Bassler v. Bassler,
 ___ Vt. ___, ___, 593 A.2d 82, 88 (1991), where the husband commingled his
 assets with those of his mother to hinder efforts of his spouse to obtain a
 fair property distribution and we upheld the trial court's attempt at
 piercing the veil around the assets as the best it could do under the
 circumstances.  It is the trial court's function to evaluate the evidence,
 and we cannot say its findings, as well as its characterization of
 appellant's approach to the court, is clearly erroneous.  Distribution of
 property is not an exact science, and we have often upheld property awards
 despite errors that do not affect the overall fairness of the award.  See,
 e.g., Plante v. Plante, 148 Vt. 234, 237, 531 A.2d 926, 928 (1987); Belanger
 v. Belanger, 148 Vt. 202, 206, 531 A.2d 912, 915 (1987).

      Appellant also complains about the inclusion of the house in the
 marital assets because it was acquired after the parties separated and about
 the failure of the court to subtract the outstanding indebtedness to his
 mother from the value of the house.  The applicable statute requires
 division of marital property "however and whenever acquired" and is broad
 enough to cover property acquired after the parties separated.  15 V.S.A. {
 751(a).  See Bero v. Bero, 134 Vt. 533, 535, 367 A.2d 165, 167 (1976) (tort
 settlement received after divorce was filed is marital property).  The court
 acted within its discretion in refusing to subtract the debt to appellant's
 mother in view of its finding that the money provided was more a gift than a
 loan.

      We have reviewed the other points raised by appellant and find no
 error.

      Affirmed.







                                    BY THE COURT:




                                    Frederic W. Allen, Chief Justice


 [ ]  Publish                       Ernest W. Gibson III, Associate Justice

 [ ]  Do Not Publish
                                    John A. Dooley, Associate Justice


                                    James L. Morse, Associate Justice


                                    Denise R. Johnson, Associate Justice