Downs v. Downs

 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. 92-025


 Kevin A. Downs                               Supreme Court

                                              On Appeal from
      v.                                      Chittenden Family Court

 Susan A. Downs                                November Term, 1992


 Matthew I. Katz, J.

 Norman R. Blais of Blais, Cain, Keller & Fowler, Inc., Burlington, for
   plaintiff-appellant

 Robert B. Hemley and Normal Williams of Gravel and Shea, Burlington, for
   defendant-appellee


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


      ALLEN, C.J.   Kevin and Susan Downs both appeal from a final judgment
 for maintenance in which the family court, after considering the future
 value of Kevin's medical degree, awarded Susan $203,269.  Kevin also appeals
 the family court's award of attorney's fees.  We affirm.
      Kevin and Susan were married in August of 1976.  At that time, Kevin,
 who had just graduated from college, and Susan, who had completed three
 years of university study, agreed that she would leave school and work while
 he attended medical school.  Susan worked as a clerk at a department store
 from the fall of 1976 until March of 1980, a month before the birth of the
 parties' first child.  Susan did not work outside the home after the birth
 of the parties' first child.  A second child was born in 1982.  In August
 of 1983, Kevin moved out of the family home, and later that year, filed for
 divorce.  Kevin finished his residency in 1984 and began work as an
 obstetrician and gynecologist.  Kevin's income has increased from $78,500
 in 1985 (the year of the divorce) to $195,500 in 1991.
      This is the third appeal to this Court arising from this divorce.  In
 Downs I, we reversed a revised trial court order because it was issued after
 the expiration of the nisi period.  150 Vt. 647, 549 A.2d 1382 (1988).  In
 Downs II, we vacated the original property and maintenance order because the
 trial court incorrectly treated Kevin's increased earning potential as an
 asset to be divided under 15 V.S.A. { 751, the property settlement statute.
 154 Vt. 161, 165-66, 574 A.2d 156, 158-59 (1990).  Now, each party appeals
 the amount of the maintenance awarded; Kevin argues the award is too high
 and Susan argues it is too low. In addition, Kevin appeals the award of
 attorney's fees to Susan.
                            I.  Maintenance Award
      Each party contends that the family court failed to follow Downs II
 when it fashioned the award on appeal.  Kevin argues that the court devoted
 too much attention to the future value of the diploma and not enough
 attention to Susan's actual contributions to the obtaining of the degree.
 In addition, Kevin claims that the award is simply too high compared to
 maintenance awards ordered in other jurisdictions.  Susan argues that the
 award is too low because it does not mathematically equalize the parties'
 incomes and because the award does not extend until the children attain the
 age of majority.
      The family court was faced with the task of applying the holding in
 Downs II, which states, "[W]hen one spouse obtains a professional degree
 during the marriage, but the marriage ends before the benefits of the degree
 can be realized, the future value of the professional degree is a relevant
 factor to be considered in reaching a just and equitable maintenance award."
 154 Vt. at 167, 574 A.2d  at 159.  We also held that, in diploma-divorce
 situations, maintenance is "'a flexible tool by which the parties' standard
 of living may be equalized for an appropriate period of time.'"  Id. at 166-
 67, 574 A.2d  at 159 (quoting Washburn v. Washburn, 677 P.2d 152, 158 (Wash.
 1984)).
      A court retains broad discretion in fashioning both the amount and
 duration of a maintenance award.  Id. at 167, 574 A.2d   at 159, but see
 Justis v. Rist, 3 Vt. L.W. 326, 327 (Sept. 18, 1992)(court's discretion does
 not extend to an award of post-mortem maintenance where legislature has not
 adopted statutory language to override the common law rule proscribing such
 maintenance).  There are two areas of court discretion arising from the
 Downs II holding:  First, the standard of living "may be equalized"; second,
 this equalization may apply for "an appropriate period of time."  154 Vt.
 at 167, 574 A.2d  at 159.  The court correctly concluded that the use of
 maintenance to equalize the parties' standards of living does not require
 mathematical parity of income.  Instead of focusing solely on income
 amounts, the court considered the expectations of the parties, including
 both the value of the future benefits to be derived from the degree, e.g.,
 Kevin's earning capacity as a medical doctor, and the anticipated expenses
 to be incurred in obtaining the value of these benefits, e.g., repayment of
 school loans and the cost of buying into a partnership.  The court also
 considered both parties' incomes and employability and the duration of the
 marriage.  Most importantly, the court focused on the standards of living
 enjoyed by the parties.  It found that the maintenance award would allow
 Susan to purchase a house and make a pension contribution, and allow her a
 measure of financial security in addition to increased ability to meet her
 own reasonable needs.
      These findings demonstrate that the court considered the future value
 of the benefits to be derived from the professional degree in the context of
 the 15 V.S.A. { 752(b) factors and balanced the equities according to Downs
 II.  We find no abuse of discretion.  We also find that the court's choice
 of a period equal to the duration of the marriage as an appropriate period
 of time during which to sustain this equalization was within its discretion.
                            II.  Attorney's fees
      Kevin also argues that the court erred in awarding attorney's fees for
 legal services rendered prior to the conclusion of the Downs II appeal.
 Because Susan did not appeal the court's denial of all other requested
 relief in her Downs II appeal, Kevin contends that she is precluded from
 raising the appeal now.  Under ordinary circumstances, a judgment that
 denies requested relief and dismisses it with prejudice disposes of the
 requested relief.  Where, however, the cause of action specifically allows
 for the recovery of attorney's fees, post-judgment claims are allowed
 provided there is no unfair surprise or prejudice to the affected party.
 See  White v. New Hampshire Dep't. of Employment Security, 455 U.S. 445,
 451-54 (1982) (claim for attorney's fees, specifically allowed to the
 prevailing party and defined as "costs" under 42 U.S.C. { 1988, is "uniquely
 separable from the cause of action to be proved at trial"); Fleury v.
 Kessel/Duff Construction Co., 156 Vt. 406, 410-12, 592 A.2d 904, 905-06
 (1991) (attorney's fees allowed where workers' compensation statute provided
 for recovery of attorney's fees and Commissioner's practice allowed such
 recovery if requested within a reasonable time); cf. State v. Champlain
 Cable Corp., 147 Vt. 436, 438, 520 A.2d 596, 598 (1986) (denying post-
 judgment motion for attorney's fees in VFEPA action where defendant would be
 prejudiced by State's untimely motion for attorney's fees because defendant
 might have appealed from award of costs had defendant realized that costs
 would include attorney's fees).
      Attorney's fees are recoverable in a divorce action in the form of
 "suit money."  See 15 V.S.A. {{ 606 and 607 (creating actions to recover
 suit money by those parties and attorneys entitled to receive it by judgment
 or order).  The considerations governing the award of "suit money" are
 different from those factors governing the award of attorney's fees in
 nondivorce cases.  Ely v. Ely, 139 Vt. 238, 241, 427 A.2d 361, 363 (1981).
 In a divorce case, the "financial circumstances of the parties . . .  have
 an important bearing on the award."  Id.  As this Court has stated, "The
 needs of the wife and the ability of the husband to meet them are the
 primary consideration."  Id.  The factors that the court must consider will
 vary depending upon the maintenance and child support ordered.  This Court
 has remanded attorney's fees awards where the maintenance and child support
 orders were also remanded:
         Without knowing the financial obligations and resources
         of the parties, after finalization of the property
         settlement and support and maintenance awards, it would
         be an abuse of discretion for the trial court to fashion
         an award of attorney's fees.  Accordingly, the trial
         court's award of attorney's fees is reversed and
         remanded for redetermination in light of any changes in
         the property division and awards of child support and
         maintenance that may occur upon remand.

 Cleverly v. Cleverly, 151 Vt. 351, 358, 561 A.2d 99, 103 (1989).  Because,
 in the case at hand, the family court ordered a new amount of maintenance,
 the determination of attorney's fees arose within a new factual setting and
 required re-examination.  Moreover, Kevin was not prejudiced by the court's
 delayed award of attorney's fees because the award was granted as part of
 the court's latest maintenance order and Kevin is able to challenge the
 award in the instant appeal.  A court may award attorney's fees where the
 interests of justice and equity indicate they are appropriate.  Nevitt v.
 Nevitt, 155 Vt. 391, 399, 584 A.2d 1134, 1139 (1990).  The court considered
 the Ely factors, and we find no abuse of discretion.
      Affirmed.




                                         Chief Justice