Guiel v. Guiel

Guiel v. Guiel  (95-371); 165 Vt 584; 682 A.2d 957

[Opinion Filed 2-Jul-1996]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 95-371

                              APRIL TERM, 1996


Jo-Anne M. Guiel                     }     APPEALED FROM:
                                     }
                                     }
     v.                              }     Chittenden Family Court
                                     }
James J. Guiel                       }
                                     }     DOCKET NO. 984-12-93CnDmd


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

       Both parties appeal from the final judgment of the family court in
  this divorce case. Wife appeals the court's decision awarding parental
  rights and responsibilities for the couple's teenaged son, Scott, to
  husband.  Husband appeals from the court's property division and
  maintenance awards.  We affirm.(FN1)

       The parties married in 1972, and adopted a son, Scott, shortly
  thereafter.  During the marriage, wife worked as a homemaker and also
  worked part-time in the fields of special education and geriatric care. 
  She has worked sporadically at part-time jobs since the parties separated
  in 1993, but has medical problems that prevent full-time employment. 
  Husband works for an insurance company as a claims adjuster, earning
  approximately $65,000 a year. Following the separation, Scott lived for a
  time with his mother in the family home.  In September 1994, however, the
  family court issued a temporary placement order awarding legal and physical
  parental rights and responsibilities to husband.  This order was a response
  to an unpleasant incident between the parties at the hospital to which
  Scott was taken following an automobile accident.

       Wife argues that the family court's
  parental-rights-and-responsibilities order should be reversed because the
  court failed to consider her role as Scott's primary caretaker.  Although
  recognizing that the family court has "broad discretion in custody
  matters," Nickerson v. Nickerson, 158 Vt. 85, 88, 605 A.2d 1331, 1333
  (1992), wife maintains that the court abused its discretion by focusing on
  "isolated incidences" and disregarding wife's role as primary caretaker and
  her overall parenting skills.

       We note first that 15 V.S.A. § 665(b)(6) requires the court to
  consider as one factor in parental-rights-and-responsibilities
  determination "the quality of the child's relationship with the primary
  care provider, if appropriate given the child's age and development."  As
  Scott was sixteen at the time of the final hearing, and had been living
  with his father for several months, the court may have reasonably concluded
  that his relationship with the primary care provider was not a particularly
  important factor in the custody decision.  Indeed, the court apparently
  gave great weight to Scott's own wishes, noting that Scott was
  "particularly mature given his age" and "should have significant influence
  over his own life."

 

       Moreover, the court found that returning to live with his mother would
  be "too unsettling" for Scott and that wife's significant medical problems,
  which have "affected her ability to cope with the pressures of daily life,"
  would make it difficult for her to deal with a teenager.  The court
  therefore did consider "the likely effect the change of custodian would
  have on the child and the family,"  Johnson v. Johnson, ___ Vt. ___, ___,
  659 A.2d 1149, 1151 (1995), and found that Scott would be "negatively
  affected" by living with his mother.  These findings are supported by the
  evidence, and suggest that Scott's best interests are served by remaining
  with his father.  There was no abuse of discretion.

       Husband appeals the family court's property division and maintenance
  orders.  The court ordered that the parties' assets be divided roughly
  equally, and that husband pay wife permanent maintenance in an amount
  sufficient to equalize the parties' incomes.  Again, this is an area in
  which the family court has broad discretion.  Klein v. Klein, 150 Vt. 466,
  468, 473, 555 A.2d 382, 384 (1988).  The court's decision will be upheld
  unless it "fails to exercise its discretion or exercises it for clearly
  untenable reasons or to an untenable extent."  Id. at 468-69, 555 A.2d  at
  384.

       With respect to the maintenance award, husband argues that the court
  erroneously based the award "only upon the single criterion of the payor's
  income."  Delozier v. Delozier, 161 Vt. 377, 385, 640 A.2d 55, 59 (1994). 
  We do not agree with this characterization of the family court's decision. 
  The court stated that the basis for the maintenance award was the length of
  the marriage (twenty-three years) and the fact that wife is middle-aged, in
  poor health, and unable to work full-time.  These are the kinds of factors
  that we identified in Delozier as supporting permanent equalization of
  incomes.  Id. at 386, 640 A.2d  at 59.  The court determined that the award
  would permit wife to find suitable housing, take classes to prepare her for
  employment, and meet her reasonable personal needs.  It also noted that the
  award would not reduce her incentive to work, because she would need to
  increase her income to attain the standard of living she enjoyed before the
  marriage.  See id. at 385 n.*, 640 A.2d  at 59 n.*. Given the parties'
  circumstances, the court did not abuse its discretion in making the
  permanent maintenance award.(FN2)

       Finally, husband argues that the family court's findings do not
  support its property division order.  In Dreves v. Dreves, 160 Vt. 330, 628 A.2d 558 (1993), we stated that, to withstand appellate review, findings
  made in support of property division determinations must "`provide a clear
  statement as to what was decided and why.'"  Id. at 333, 628 A.2d  at 560
  (quoting Richard v. Richard, 146 Vt. 286, 287, 501 A.2d 1190, 1190 (1985)). 
  Here, the family court explained its decision in great detail, meeting its
  obligation to explain the property division.  Husband points to two
  specific issues: first, that although wife was reimbursed for her credit
  card debt accrued during the separation, he was not reimbursed for monies
  spent to

 

  maintain the family home during that time, and second, that the court did
  not fairly apportion wife's interests in two personal injury actions.  In
  both instances, the court acted well within its discretion.  The court
  found that the personal injury actions were too speculative to assign a
  monetary value, but nonetheless assigned husband a twenty-five percent
  interest in the actions. (The court also assigned wife a twenty-five
  percent interest in husband's personal injury action.)

       With respect to wife's credit card debt, the court found that much of
  the debt was for medical expenses, a significant portion of which was
  reimbursable by insurance.  The court also found that husband had cashed
  two insurance checks totaling $3180 that should have been applied to wife's
  medical expenses.  Finally, although the court did not reimburse husband
  for certain expenses relating to the family home, neither did the court
  reimburse wife for her expenses preparing the home for sale.  That wife was
  reimbursed for some living expenses when her credit card debt was paid may
  mean that the property division was not precisely equal, but property
  division is not an exact science.  "The distribution must be equitable, not
  necessarily equal."  Myott v. Myott, 149 Vt. 573, 579, 547 A.2d 1336, 1340
  (1988).  As we concluded in Myott, the "split here is not so unequal that
  it shows an abuse of discretion."

       Affirmed.


--------------------------------------------------------------------------------
                                 Dissenting


       DOOLEY, J., dissenting.  I agree with the Court's decision on parental
  rights and responsibilities and the division of property.  I do not agree
  that a maintenance award providing a permanent equalization of income is
  appropriate in this case and, accordingly, dissent from the affirmance of
  the maintenance award.

       The main relevant precedent is Delozier v. Delozier, 161 Vt. 377, 640 A.2d 55 (1994), where we reversed a maintenance order virtually identical
  to that imposed here.  We started by noting that "courts have not favored
  the use of formulas for determining maintenance awards" because "in effect,
  they modify support payments without regard for modification standards" and
  "are not responsive to the needs of the parties, and therefore have the
  effect of either punishing the payor spouse or shortchanging the recipient
  spouse."  Id. at 384, 640 A.2d  at 58, 59.  In spite of these criticisms, we
  held that income equalization awards "may be acceptable when they equalize
  the parties' financial status for an appropriate period of time."  Id. at
  385, 640 A.2d  at 59.  On this point, we have recently upheld a one-year
  equalization award, distinguishing Delozier because there was no risk that,
  as in Delozier, the income equalization would become punitive rather than
  compensatory.  See Clapp v. Clapp, 163 Vt. 15, 21, 653 A.2d 72, 75 (1994).

       On the facts of the specific case, we found in Delozier that numerous
  factors warranted a permanent maintenance award: the length of the marriage
  bordered on long term; the parties established a fairly high standing of
  living during the marriage; the wife gave up career advancement to enhance
  the husband's medical career during the marriage; and the wife had custody
  of a young child with special needs and as a result continued to face
  limited employment opportunities.  Nevertheless, we concluded that the
  court abused its discretion in awarding maintenance based on permanent
  equalization of after-tax incomes.  We found the award "far too speculative
  with respect to satisfying the relevant statutory criteria and addressing
  the purposes of maintenance."  Delozier, 161 Vt. at 386, 640 A.2d  at 60
  (emphasis supplied).  In the language relied upon by the trial court and
  the majority, we distinguished when permanent income equalization might be
  appropriate:

     Although the permanent equalization of incomes may be
     appropriate in long-term marriages when the recipient spouse is

 

     past middle age or in poor health, that was not the case here.  This
     is a borderline long-term marriage, but plaintiff is relatively
     young, in good health, and will be able to work as an RN within
     the next few years.  The parties may be employed for a period of
     time well beyond the length of the marriage.  Thus, the permanent
     equalization of the parties' income may wind up being punitive
     rather than compensatory.

  Id.

       The majority holds that permanent equalization is appropriate here
  because the marriage is long-term and plaintiff is middle-aged and in poor
  health.  In fact, the differences between this case and Delozier are
  differences of degree not kind, and plaintiff's claim for permanent income
  equalization is weaker than that of the plaintiff in Clapp, where we
  characterized the facts as "somewhat similar" to those in Delozier.  Unless
  Delozier represents a case factually on the borderline, a characterization
  difficult to reconcile with our statement that the facts were "far too
  speculative to satisfy the statutory criteria and purposes of maintenance,"
  the rationale of Delozier requires us to reverse this order also.

       The trial court particularly stressed plaintiff's health problems,
  which result from three automobile accidents.  It found, however, that she
  was making a recovery and would make a substantial recovery in one to two
  years.  She is college-educated and is taking classes that qualify her in
  human services so she should be able to gain the education to start in that
  field within two years.  In many ways, plaintiff's situation is similar to
  that of the plaintiff in Delozier, whose employment opportunities were
  limited by her need to take care of a young child with special needs.  In
  both cases, it is likely that the parties will be employed for a period
  well beyond the length of the marriage and permanent equalization may wind
  up being "punitive rather than compensatory."

       This marriage was longer than in Delozier (23 years rather than 14)
  and plaintiff is older (45 years rather than 39), but there are virtually
  no findings to support a compensatory component of maintenance based on the
  "role of the recipient spouse during the marriage."  Id. at 382, 640 A.2d 
  at 58.  As in Delozier, it is likely that the parties' situation will
  change markedly over the many years this award will be in effect and the
  resulting income distributions will have little relation to the statutory
  criteria and purposes of maintenance.  As in Delozier, despite the
  majority's conclusion to the contrary, the award will reduce plaintiff's
  "incentive to make or increase [her] income at a time when it is desirable
  that she reach her full employment potential."  Id. at 385, n.*, 640 A.2d 
  at 59 n.*.  It will also reduce defendant's incentive to increase his
  earnings because half of the increase will go to plaintiff.

       It is unnecessarily difficult for us to determine where to draw the
  Delozier lines because we have failed to define the "purposes of
  maintenance" referenced in the opinion.  Although many formulations are
  possible, the best is contained in an article authored by our judicial
  colleagues from Maine.  See Sheldon & Mills, In Search of a Theory of
  Alimony, 45 Me. L. Rev. 283, 285 (1993).  They conclude: "As it is
  presently understood, the purpose of [maintenance] . . . is the prevention
  of unfairness by forcing ex-spouses to share all of the economic gains and
  losses that have been produced by the marriage but that are realized after
  the divorce."  Id.  Maintenance is not a post-divorce income-maintenance
  program to meet all spousal need, however and whenever it arises.


 

       The purpose of maintenance requires a substantial, permanent
  maintenance award in this case because the post-divorce economic situation
  of the parties is greatly influenced by economic investments and gains made
  during the marriage.  See, e.g., Klein v. Klein, 150 Vt. 466, 473-75, 555 A.2d 382, 386-88 (1988).  This order, however, goes well beyond the
  purpose.  It makes these parties permanent and involuntary economic
  partners despite their desire to divorce and get on with their separate
  lives and despite the fact that much of their economic future will be
  determined by their own future actions.  As Delozier holds, there are cases
  where a permanent income partnership is justified because the income will
  be determined by gains and losses produced within the marriage.  If
  plaintiff were so ill or so old that she had no meaningful economic
  opportunity, the order would be justified.  This case does not fit within
  those limited circumstances.

       I recognize that we need a method to allocate future income between
  pre-divorce and post-divorce causes.  As an example, two feminist
  commentators have suggested a starting point that income should be
  equalized for a period equal to half the length of the marriage.  See J.
  Williams, Is Coverture Dead? Beyond a New Theory of Alimony, 82 Geo. L.J.
  2227, 2261 (1995); P. Singer, Alimony and Efficiency: The Gendered Costs
  and Benefits of the Economic Justification for Alimony, 82 Geo. L.J. 2423,
  2455 n.136 (1995).  However we make the allocation, it is important we do
  so rather than continuing to endorse the permanent economic partnership
  this order reflects.

       I dissent.


       BY THE COURT:



Dissenting:                         _______________________________________
                                    Ernest W. Gibson III, Associate Justice

________________________________   _______________________________________
John A. Dooley, Associate Justice  Denise R. Johnson, Associate Justice

                                   _______________________________________
                                   Richard W. Norton, Superior Judge
                                   Specially Assigned


                              


  ----------------------------------------------------------------------------
                                  Footnotes

FN1.  The Chief Justice sat for oral argument in this case but did not
  participate in the decision. Husband's concern that the maintenance award
  does not take into account that he is the custodian of the parties' son
  appears unfounded.  The court made clear in its order clarifying and
  amending the final judgment that the magistrate's child support
  determination would reflect the parties' equalization of income.


FN2.  At oral argument, new counsel for husband raised issues
  relating to calculation and taxation of the maintenance award that were not
  briefed.  Arguments raised for the first time at oral argument will not be
  considered by the Court.  See Smith v. Smith, 139 Vt. 234, 236, 427 A.2d 378, 380 (1981) (issues not raised in appellate brief are waived),
  overruled on other grounds by Cliche v. Cliche, 143 Vt. 301, 466 A.2d 314
  (1983).