Fiske v. Boudreau

FISKE_V_BOUDREAU.94-070; 164 Vt 263; 668 A.2d 1285

[Filed 20-Oct-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. 94-070


 Sheryl Fiske                                      Supreme Court

                                                   On Appeal from
     v.                                            Franklin Family Court

 Pierre Boudreau                                   June Term, 1995



Linda Levitt, J.

Nicholas L. Hadden and Michael Rose, St. Albans, for plaintiff-appellee

Richard A. Gadbois, Enosburg Falls, for defendant-appellant


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


       GIBSON, J.   Defendant father appeals a Franklin Family Court order
  affirming a magistrate's decision awarding child support and a maintenance
  supplement to plaintiff mother in this parentage proceeding.  We affirm.

       The undisputed facts are as follows.  Prior to meeting defendant,
  plaintiff purchased a home in Richford.  The parties became intimate in
  1983, but never married.  In 1984, a son was born to plaintiff, and in
  1986, she deeded her home to defendant as nominee in order to qualify for
  federal housing benefits.  The parties did not live together until 1989,
  when they began construction of a new home in Enosburg on property owned
  solely by defendant.  They separated in 1990, and plaintiff and son moved
  back into the Richford property, which was in disrepair.  Plaintiff filed
  this parentage petition against defendant, who has acknowledged paternity. 
  Finding a disparity between the standards of living of the parties, the
  magistrate concluded that plaintiff was entitled to $600 per month for
  child support plus a maintenance supplement of $250 if she remained in the
  Richford home and $550 if she chose to move out of

 

  that property.  The family court affirmed the magistrate's decision,
  and this appeal followed.

       Defendant contends first that the magistrate lacked authority to award
  a maintenance supplement in a parentage proceeding, because 15 V.S.A. §
  661(a) limits a maintenance supplement to a "support obligation arising out
  of an action for divorce."  The issue was not raised before the magistrate,
  however, or in the family court proceeding and may not be raised for the
  first time on appeal.  See Bell v. Bell, ___ Vt. ___, ___, 643 A.2d 846,
  852 (1994).

       Defendant next argues that the magistrate and the family court erred
  in awarding a maintenance supplement in the absence of evidence that the
  child was experiencing a reduction in his standard of living.  Defendant
  contests the magistrate's view of the evidence about the child's current
  standard of living, but his main argument is that the child lived only
  briefly in his household and there is no evidence of a decline in the
  child's living standard from the standard enjoyed during that brief period. 
  Defendant distinguishes the divorce situation, where there is usually a
  history of the standard of living experienced by the child in the intact
  family, from the out-of-wedlock situation, where there is no such history. 
  He urges us to set forth a separate calculus in parentage cases, based
  either on the child's living standard during the parents' active
  relationship or on the standard experienced by the child when the parentage
  action is brought.

       Defendant's theory conflicts with 15 V.S.A. § 301, which mandates the
  same benefits for children "regardless of whether the child is born during
  marriage or out of wedlock." Moreover, 15 V.S.A. § 661(a) itself is
  inconsistent with defendant's theory.  It directs the court to order
  payment of a maintenance supplement to the custodial parent "to correct any
  disparity in the financial circumstances of the parties" (emphasis added),
  and does not imply a less generous standard of support where the parents'
  relationship was brief.

       Defendant next contends that the court erred in failing to consider
  the fair rental value of the Richford property, the title of which is in
  his name, when calculating plaintiff's gross

 

  income.(FN1)  The record of proceedings before the magistrate does not
  support the argument. First, the magistrate found that equitable title to
  the property was disputed.  Plaintiff purchased the property originally,
  and deeded her interest to defendant in order to qualify for federal
  housing benefits.  The magistrate found that the house had a fair market
  value of $53,000 and a rental value of $550 per month.  Defendant's only
  contribution was a $12,000 temporary mortgage, which was later reimbursed. 
  The balance of the purchase price was paid either by plaintiff or by the
  federal government under its housing program.  Defendant nevertheless
  argues that because he is the record owner of the property, the monthly
  rental value should be deemed a gift to plaintiff and counted as gross
  income under 15 V.S.A. § 653(5)(A)(i).  Despite findings indicating that
  defendant's claim to equitable ownership was uncertain, the court in effect
  credited defendant with a $300-per-month share of the fair rental value of
  the property, computing the maintenance supplement at $250 if plaintiff
  remained in the house and $550 if she did not.(FN2)

       In affirming the magistrate's decision, the family court did not
  attempt to determine who equitably owned the Richford property, nor does it
  appear that such a determination is required by 15 V.S.A. § 306, which
  deals only with child support, visitation and custody.  Defendant has not
  argued that a determination of ownership of the Richford property was
  essential to the magistrate's maintenance supplement computation.  For
  present purposes, defendant enjoys a $300 monthly credit on account of the
  fair rental value of the Richford property, and that determination is more
  than generous to him, based on the magistrate's findings as to who
  contributed to the purchase of the house and payment of the mortgage on it.

 

       Finally, defendant contends that the magistrate erred in assessing a
  maintenance supplement in the absence of any evidence as to the cost of
  repairs or improvements to the Richford property.  Although the poor
  condition of the Richford house was a salient fact, the magistrate properly
  determined the amount of maintenance supplement under the support
  guidelines, based on "the financial circumstances of the parties," as
  specified by 15 V.S.A. § 661(a).  Defendant has not demonstrated that the
  court abused its discretion in that regard. Should circumstances change,
  either party may seek a modification under § 661(c).

       Plaintiff's request for attorney's fees is granted, and the matter
  will be remanded to family court for a determination of those fees.

       Affirmed; cause remanded for determination of plaintiff's attorney's
  fees on appeal.


                                   FOR THE COURT:



                                   ______________________________________
                                   Associate Justice


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                                  Footnotes


FN1.  Defendant actually raised a different issue before the family
  court, arguing that the magistrate in effect awarded the Richford house to
  plaintiff, an issue not raised on appeal.  The economic substance of the
  questions is close, however, and we deem the issue as presented here to
  have been effectively raised in the trial court.

FN2.  $300 figure was based on what the court estimated would be
  defendant's net earnings on the house, given a gross rental of $550.