Cabot v. Cabot

Annotate this Case

Cabot v. Cabot (96-087); 166 Vt. 485; 697 A.2d 644

[Filed 23-May-1997]

[Motion for Reargument Denied 2-Jul-1997]

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. 96-087

Ellen Adams Cabot Supreme Court

On Appeal from
v. Chittenden Family Court

Thomas D. Cabot, III November Term, 1996

Alden T. Bryan, J.

Debra R. Schoenberg, Burlington, Nicholas E. Tischler, Niskayuna, New
York, and Robert P. Davison, Jr. (On the Brief), Stowe, for
plaintiff-appellant

Susan M. Murray and Peter F. Langrock of Langrock Sperry & Wool,
Middlebury, for defendant-appellee/cross-appellant

PRESENT: Gibson, Dooley, Morse and Johnson, JJ., and Skoglund, D.J.,
Specially Assigned

JOHNSON, J. In this decision we address a number of issues arising
out of a lengthy and complicated divorce proceeding. Both parties appeal
the family court's parental rights and responsibilities order; the husband,
Tom, claims that he should have been awarded sole parental rights, while
the wife, Ellen, argues that the court lacked authority to award joint
legal parental rights and responsibilities absent agreement of the parties.
Ellen also appeals a number of financial issues, including the court's
valuation and division of the marital estate and its failure to award
maintenance. We agree that the court lacked authority to award joint legal
parental rights and responsibilities and therefore reverse and remand the
parental rights and responsibilities order; in all other respects, we
affirm the decision below.

The parties were married in 1984 and have lived in Vermont throughout
their marriage. They have one child. Ellen has worked as a registered
nurse and has operated her own nutrition business, but has not worked
outside the home since the child's birth. Tom has his own business as
architect and real estate developer, but has not had much financial
success. Although neither

party earned any substantial income during the marriage, the family lived
very well, supported by income derived from Tom's family inheritance. The
parties began to live apart in late 1991, and the divorce was filed in
April 1992. Over the next three-and-a-half years, the parties litigated
every aspect of this divorce, culminating in the separate
parental-rights-and-responsibilities and property-distribution orders that
are the subject of this appeal. As we address each of the arguments raised
by the parties, we explain the relevant factual and procedural background
in more detail.

I. Parental Rights and Responsibilities

The parties' only child, a daughter, was born in 1988. For the first
three-and-a-half years of the child's life, the family lived together in
the marital home in Shelburne, Vermont. In the fall of 1991, however, the
marriage began to disintegrate. Ellen asked Tom first to spend four nights
a week at a nearby house owned by Tom and his sister; two months later, she
asked him to move out of the house altogether. For several months, the
parties remained in couples therapy and Tom continued to see the child. In
March of 1992, Ellen insisted that Tom reduce his time with the child from
daily contact to three visits per week. Ellen also stopped attending
couples therapy. In April 1992, Ellen filed for divorce. On the same day
that she began the divorce proceedings, she took her daughter to her
parents' house in Maine without telling Tom.

Shortly thereafter, the parties entered into a stipulation giving
Ellen temporary, primary physical rights and responsibilities subject to
Tom's right to certain parent-child contact. The trial court incorporated
that agreement into a temporary order. In June 1992, less than two months
after the court issued its order, Ellen refused to allow Tom to see the
child. Ellen testified that she believed Tom was removing items of
personal property from the marital home during the visits, and claimed that
her then-attorney advised her to stop the visits. The court noted that
Ellen's explanation "seem[ed] questionable" and found it more likely that
Ellen's conduct was a deliberate attempt to reduce or sever Tom's contact
with the child. As a result of Ellen's actions, Tom had no contact with
his child for nearly four months. In October 1992,

the court ordered Ellen to allow contact between Tom and the child, but on
the advice of the child's psychiatrist, that contact was limited at first
to a few hours twice a week in the presence of a third-party observer.

In July of 1993, Ellen told Tom that she had accepted a nursing job in
Charlottesville, Virginia, and had placed a deposit on a house and enrolled
the child in school there. Ellen planned to move in September of that
year. Tom requested that the trial court enjoin Ellen from taking the
child with her to Virginia. The court granted the motion, and Ellen
decided not to move to Virginia. Ellen testified, however, that she
planned to move to Virginia after the divorce was final.

In October of the same year, Ellen filed a motion asking the trial
court to reduce Tom's contact with the child. After a discussion between
the attorneys and the court, the hearing on Ellen's motion was transformed
into a final hearing on parental rights and responsibilities. The court
decided to adjudicate that issue before considering the property and
maintenance issues, in part because of Ellen's plan to move to Virginia
with the child.

After making extensive findings,(FN1) and evaluating each of the factors
listed in 15 V.S.A. § 665(b), the court awarded sole physical parental
rights and responsibilities to Ellen, but ordered joint legal parental
rights and responsibilities. The court also granted Tom substantial
parent-child contact, including every other weekend, shared or alternated
school vacations, and forty-five days during the summer. The court drew up
an alternate visitation schedule, should Ellen move to Virginia or another
distant state; under that plan, the child would be with Tom for every
school vacation and almost all of the summer.(FN2) Each parent challenges
some part of

the court's parental-rights-and-responsibilities order. Tom argues that he
should have been awarded sole parental rights and responsibilities, while
Ellen maintains that the court erred by ordering joint legal parental
rights and responsibilities.

A. Tom's Claim

We first address Tom's claim that the trial court abused its
discretion by failing to award him sole legal and physical parental rights
and responsibilities. Tom does not challenge any of the court's findings,
but instead argues that those findings do not support its decision to award
physical rights and responsibilities to Ellen. Specifically, Tom points to
several findings regarding Ellen's attempts to limit or eliminate Tom's
contact with the child and to interfere with the father-child relationship.
Based on these findings, the court concluded that, if awarded primary legal
rights and responsibilities, Tom would be much more likely to support and
foster the child's relationship with Ellen than Ellen would be to encourage
the child's relationship with Tom. See 15 V.S.A. § 665(b)(5) (one factor
court must examine is "ability and disposition of each parent to foster a
positive relationship and frequent and continuing contact with the other
parent"). The court also concluded that Tom is able and willing to provide
the child with love, affection, and guidance; to ensure that her basic
physical needs are met; and to meet her present and future developmental
needs. See 15 V.S.A. § 665(b)(1)-(3) (court must consider these factors in
making custody determination). In Tom's view, these findings and
conclusions by the court mandated an award of sole parental rights and
responsibilities to him.

The court based its decision to award physical parental rights and
responsibilities to Ellen on its conclusion that Ellen has been the child's
primary care provider, "clearly fulfill[ing] this role more than Tom," both
before and after the separation. See 15 V.S.A. § 665(b)(6) (court shall
consider quality of child's relationship with primary care provider, if
appropriate, given child's age and development); Johnson v. Johnson, 163
Vt. 491, 494, 659 A.2d 1149, 1151 (1995) (absent evidence on likely effect
of change of custodian, court should ordinarily find that child should
remain with primary custodian if that parent is fit). The court found that
Ellen

"was the central figure in [the child's] life," and that "the depth of the
emotional relationship between Tom and [the child] does not equal that
between [the child] and Ellen." Despite Ellen's unfortunate efforts to
disrupt the child's relationship with her father, the court was reluctant
to break the close mother-daughter bond.

We do not agree with Tom that, based on the court's findings, the
court abused its discretion by failing to award sole parental rights and
responsibilities to him. See deBeaumont v. Goodrich, 162 Vt. 91, 103, 644 A.2d 843, 850 (1994) (trial court has broad discretion in custody matter;
Supreme Court cannot set aside its decision because it would have reached
different conclusion from facts); Myott v. Myott, 149 Vt. 573, 578, 547 A.2d 1336, 1339 (1988) (Supreme Court must affirm trial court's decision in
custody matter unless that court's discretion was erroneously exercised, or
was exercised upon unfounded considerations or to an extent clearly
unreasonable in light of evidence). The court recognized and considered
Ellen's attempts to exclude Tom from the child's life, but on balance
concluded that Ellen's role as primary care provider and the need to
preserve the resulting "close, warm, nurturing, and consistent
relationship" between Ellen and her daughter outweighed the other concerns.
Overall, the evidence supports the court's decision to grant sole physical
parental rights and responsibilities to Ellen rather than Tom. See
Bissonette v. Gambrel, 152 Vt. 67, 70, 564 A.2d 600, 601-02 (1989) (court
did not err by awarding custody to mother, who was primary care provider,
despite evidence that mother's animosity and rebuff of father made it
difficult for father to participate in child's care).

Tom also argues that, by awarding Ellen sole physical parental rights
and responsibilities, the court sanctioned what he calls Ellen's
"deliberate scheme" to exclude him from the child's life and establish
herself as the primary care provider. The findings do not support Tom's
claim that Ellen "acquired" her status as primary care provider by
limiting, and for a period cutting off completely, contact between Tom and
the child. The court specifically found that Ellen has been the primary
care provider from the birth of the child; although she sought to become
the

sole care provider after the parties filed for divorce, she was the primary
care provider even before the separation. Moreover, the court neither
sanctioned nor ignored Ellen's misconduct, but stated that Ellen needed to
change her attitude toward Tom and his relationship with the child. In
making its decision, however, the court appropriately focused on "the best
interest of the child, not equity between the parties." Id., 564 A.2d at
602; see also Orr v. Orr, 122 Vt. 470, 473, 177 A.2d 233, 235 (1962)
(welfare of child is paramount concern; opposing desires of hostile
parents, insofar as they conflict with well-being of child, must yield).
The court was not free to punish Ellen for her behavior or reward Tom for
his, but instead had to be guided by the needs of the child. See Nickerson
v. Nickerson, 158 Vt. 85, 90, 605 A.2d 1331, 1334 (1992) (attention should
be focused on needs of child rather than actions of parents).

B. Ellen's Claim

Ellen challenges the court's award of joint legal parental rights and
responsibilities. She argues that this provision of the court's order
violates 15 V.S.A. § 665(a), which states in part: "When the parties cannot
agree to divide or share parental rights and responsibilities, the court
shall award parental rights and responsibilities primarily or solely to one
parent." As Tom and Ellen did not form an agreement to divide or share
their parental rights and responsibilities, see 15 V.S.A. § 666, Ellen
maintains that the court lacked authority under the statute to make a joint
award.

The court justified its order by noting that the parties, despite
their many arguments, for the most part agree on the major issues affecting
the child's welfare. The court emphasized that the parties have similar
backgrounds and values, as well as similar aspirations for the child's
future. Despite the parties' lack of agreement, and their frequent
disputes over the child, the court concluded that it was "worth a try" to
entrust the couple with joint legal parental rights and responsibilities,
and ordered that "[e]ach shall involve the other in decisions regarding
[the child's] health, education, religion, and welfare."

We agree with Ellen that the court exceeded its authority by ordering
joint legal parental rights and responsibility. A joint parental rights
and responsibilities order such as this one violates both the language of §
665(a) and the policy underlying the provision. The meaning of § 665(a) is
plain: where the parents cannot agree, the court must award primary (or
sole) parental rights and responsibilities to one parent. Here, the
court's order cannot be characterized as awarding primary parental rights
and responsibilities to Ellen. Although Ellen, as the parent with sole (FN3)
physical rights and responsibilities, is primarily responsible for the
"routine daily care and control of the child," see 15 V.S.A. § 664(1)(B),
she can make no important decisions on behalf of the child without
consulting and reaching agreement with Tom. Neither she, nor Tom, has
primary responsibility for this child; rather, they have been forced to
share that responsibility.(FN4) Under the statute, the court does not have
authority to order this arrangement absent the consent of the parents.

Our reading of § 665(a) as prohibiting an award of joint legal
parental rights and responsibilities absent agreement of the parties is
reinforced by the provisions of § 666, which governs agreements between
parents. This statute requires parents who do agree to share or divide
parental rights and responsibilities to complete an agreement that
addresses, among other things, procedures for communicating about the
child's welfare and for resolving disputes, see 15 V.S.A. § 666(b)(6)&(7)
-- issues that, ironically, the court did not discuss in its order in this
case. By requiring parents who are willing to work together to nonetheless
consider and resolve these issues in advance, the Legislature recognized
the difficulties inherent in shared-parenting arrangements. In light of
these provisions, it seems unlikely that the Legislature intended to allow
courts to force such an arrangement on parents.

We recognize that the court in this case was frustrated by Ellen's
violation of its earlier order and by her unwillingness to foster Tom's
relationship with the child. The court tried to ensure Tom's meaningful
involvement in the child's life by requiring Ellen to share decision-
making authority with him. But a court-imposed joint-parenting arrangement
cannot solve the problem of fighting parents. Instead, by forcing
unwilling parents to share parental rights and make joint decisions, a
court risks placing a child in the middle of constant and harmful disputes
over everything from how much television the child watches to what school
or church the child attends. Divorced or separated parents who agree to
share responsibility for their children take on, to their credit, a
challenging task requiring communication, cooperation, and flexibility.
Where parents have not evinced a willingness to work together, they are
very unlikely to successfully negotiate this process.(FN5)

As we recognized in Gazo v. Gazo, No. 95-339 (Vt. May 23, 1997),
awarding primary parental rights and responsibilities to one parent does
not mean that the other parent must be completely shut out of
decision-making about the child. If it serves the best interests of the
child, the court may, for example, require the primary parent to consult
with the other parent on some issues. See id., slip op. at 8. The court
may also award substantial parent-child contact to the noncustodial parent.
Thus, we do not view our decision as requiring the court to take an "all or
nothing" approach, post, at 4, as suggested by the dissent. As always,
family courts have broad discretion to craft parental rights and
responsibilities orders that serve the best interests of children.

Although we strike the provision awarding joint legal parental rights
and responsibilities, we recognize that the family court may wish to alter
other provisions in the order. We therefore remand the parental rights and
responsibilities order for reconsideration in light of this opinion.

II. Value of Marital Property

The court assigned the parties' marital estate, including several
pieces of real estate, business property, and investments, a gross value of
$7.1 million and a net value of $4.3 million. Ellen challenges a number of
the court's findings regarding the values of different assets and also
argues that the court improperly considered potential future tax liability
when it calculated the net value of the marital estate. We address each of
Ellen's arguments in turn.

A. Net v. Gross Marital Estate

Ellen's most substantial claim is that the court erred by reducing the
value of certain assets to reflect potential tax consequences of a sale of
those a sets. She relies on Johnson v. Johnson, where we stated that "the
tax status of assets in the hands of one of the parties should not affect
their fair market valuation, unless the decree necessitates their sale."
158 Vt. 160,

165, 605 A.2d 857, 860 (1992). In that case, we held that the trial court
erred by relying on the wife's nonexpert testimony on the possible impact
of tax law on the sale of her interest in two limited partnerships, and
remanded the matter for reconsideration of the fair market value of those
assets. Id. at 164-65, 605 A.2d at 860.

For several reasons, we are not persuaded that our holding in Johnson
compels reversal in this case. First, we noted in Johnson that, although
potential income taxes do not affect the value of a marital asset, "they
`may be another factor to consider in establishing the amount and method of
payment of any monetary award.'" Id. at 165, 605 A.2d at 860 (quoting
Rosenberg v. Rosenberg, 64 Md. App. 487, 523, 497 A.2d 485, 503 (1985). In
this marriage, the primary marital asset was Tom's substantial investment
account with Paine Webber, which the court found had a market value of
close to $4 million dollars. Throughout the marriage, the parties funded
their lifestyle by borrowing against this account; that way, the parties
enjoyed the benefit of the growth in the investments without paying taxes
on the gain. The parties have been able to live on "paper wealth" for many
years, because their investments have performed well. A downturn in the
market, however, could force Tom to sell investments to repay the debt; in
so doing, he would incur substantial tax liability because of his low
basis. In light of the parties' unusual financial situation, potential tax
liability was relevant to the court's overall evaluation of their finances.

Moreover, Ellen requested and received a cash award as her share of
the marital property. Had she received real estate or stocks of comparable
value, and wished to liquidate those assets, she would have faced large tax
payments. Instead, she received the full benefit of her award, with no
need to worry about future tax problems. As the court noted, however, Tom
presumably had to liquidate assets to pay Ellen, and consequently incurred
tax liability on the sales. And, as Tom retains the investment account, he
also bears the risk that a market downturn will force him to sell some
investments and pay taxes on the gain. Under these circumstances, it was
not unreasonable for the court to consider potential tax consequences

associated with assets in the marital estate. See id. at 165, 605 A.2d at
860 (in interests of fairness and consistency, court may consider specific,
relevant, and material evidence about transaction taxation of assets in
determining value, division, and method of allocation of parties' assets).

Finally, even if the court underestimated the net value of the marital
estate by deducting potential tax liability, the error was not relevant to
its decision and was therefore harmless. As the spreadsheet attached to
the court's decision reveals, the court was well aware of both the gross
and net values of the parties' assets. The court did not award Ellen a
fractional share of the estate, but instead calculated an award that would
generate an appropriate income, given the duration of the marriage and the
standard of living during the marriage. We are convinced, based on the
court's thorough discussion of the issue, that redefining the net value of
the estate would not change the court's decision. As discussed above, the
court would still properly consider the potential tax liability in making
its decision. The change would be merely cosmetic.

B. Value of Real Estate

Next, Ellen contests the court's findings regarding several pieces of
real estate. We reject her attempt to relitigate the parties' factual
disputes. On appeal, this Court does not disturb the findings of the trial
court "unless, viewing the evidence in the light most favorable to the
prevailing party and excluding the effect of modifying evidence, a finding
is clearly erroneous." Semprebon v. Semprebon, 157 Vt. 209, 214, 596 A.2d 361, 363 (1991). Disregarding this standard, Ellen essentially argues that
this Court should accept evidence that was rejected by the trial court.
That court found that a number of values suggested by Ellen were
"inflated," some "grossly," and that others were "simply without
foundation." Moreover, the court was not impressed by the testimony of the
real estate broker who served as an expert witness for Ellen, finding that
many of the broker's property valuations were "wide of the mark." As the
trier of fact, it was the province of the trial court to determine the
credibility of

the witnesses and weigh the persuasiveness of the evidence. Bruntaeger v.
Zeller, 147 Vt. 247, 252, 515 A.2d 123, 126 (1986); see also Kanaan v.
Kanaan, 163 Vt. 402, 405, 659 A.2d 128, 131 (1995) (trial court's findings
accorded wide deference on review because court is in unique position to
assess credibility of witnesses and weight of evidence); Mullin v. Phelps,
162 Vt. 250, 261, 647 A.2d 714, 720 (1994) (role of Supreme Court in
reviewing findings of fact is not to reweigh evidence or to make findings
of credibility de novo).

Addressing Ellen's specific claims, we first note that the values
assigned by the court to Pheasant Hill Lot 4, Bayview Lot 3, and Bayview
Lot 4 fell somewhere between the values claimed by the broker and those
claimed by Tom. The court was within its discretion to choose a value
within the range of the evidence presented. Semprebon, 157 Vt. at 214, 596 A.2d at 364. The court accepted Tom's testimony that a so-called Bayview
Orchestra Lot did not exist. And finally, the court was understandably
skeptical of the broker's values for the Pheasant Hill Reserve Building Lot
and the Black Walnut lots, as she based her calculations on the assumption
that the lots were approved and available for sale. The broker admitted on
cross-examination that the Reserve Building Lot was not permitted and that
her purported "valuation" was not in fact the market value of the lot as it
existed at the time of the trial. Tom, in turn, testified that the Reserve
Building Lot was held in common by all the Pheasant Hill lot owners, and
could not be developed without their unanimous consent; that most of the
Black Walnut lots are the subject of a pending agreement with nearby
landowners that would restrict development on those lots; and that one of
the Black Walnut lots has no available place for a septic system, and may
actually become a liability for Tom. Based on this evidence, the court's
findings that the Reserve Building Lot had no value as a separate lot and
that the "possibility of a positive financial return on the Black Walnut
lots [wa]s too remote for inclusion in th[e] marital estate" are not
clearly erroneous. See Kanaan, 163 Vt. at 407, 659 A.2d at 132 (court not
bound to follow opinions of expert witnesses); Bruntaeger, 147 Vt at 252,
515 A.2d at 126 (trial court's

factual determinations will stand if supported by credible evidence, even
if inconsistencies or contrary evidence exist).

C. Other Marital Property

Ellen's other challenges to the trial court's findings are similarly
without merit. She argues that the court erred by omitting Chestnut Street
Exchange securities worth over $400,000 from its valuation of the Paine
Webber account. During the trial, the court discussed with counsel for
both parties the difficulty of valuing the account, given the daily changes
in stock prices. The court asked the parties to stipulate to Paine
Webber's stated value of the account as of February 28, 1995, the first day
of trial on the financial issues. See Kanaan, 163 Vt. at 410, 659 A.2d at
134 (as general matter, marital assets should be valued as close to date of
trial as possible). Tom's attorney agreed to obtain a statement from Paine
Webber showing the value of the entire portfolio and the debt owed on it as
of that date, and stated that "if there's any objection to that copy in any
way, [Ellen's attorney will have] an opportunity to tell me." Two days
later, during Tom's direct testimony, Tom identified a document as a
statement from Paine Webber showing the market value of the account as of
February 28, 1995 to be approximately $4 million, and the debt on that date
to be approximately $2 million. Ellen's attorney did not object to the
admission of the document as evidence, nor did he raise the question of the
Chestnut Street securities during his cross-examination of Tom or at any
other time during the trial. On appeal, Ellen points to another Paine
Webber statement which shows a market value of $4.4 million. This document
was submitted to the court by Ellen's attorney after the end of the trial,
and was not admitted as evidence. Although Ellen may be correct that the
statement introduced at trial understated the value of the account, the
proper time to challenge those figures was during the trial. The court's
findings, which adopt the lower figures, are based on the evidence and are
not clearly erroneous.

The court's valuation of Tom's interest in The Waterfront Company, a
limited partnership that owns commercial real estate in downtown
Burlington, is also supported by the

evidence. The court rejected Ellen's proposed valuation of the company as
"not . . . at all credible." The court found that the company had not
performed well and had substantial debt. On paper, the company owes Tom,
the general partner, several hundred thousand dollars. The court found,
however, that if Tom attempted to collect that debt before repaying the
limited partners' investments, the limited partners would sue him. As we
have recognized in an analogous situation, the court faced a difficult task
in valuing this asset; the market value of a share in a partnership, like
the value of a closely held business, may be difficult to fix precisely.
See Kanaan, 163 Vt. at 407, 659 A.2d at 132. Given the evidence before the
court, its decision to value Tom's interest in the company at $100,000 was
not clearly erroneous.

Finally, Ellen complains that the court erred in relying on
"post-hearing" evidence in valuing certain personal property, specifically
three automobiles, some inoperable, and a motorcycle. Although the court
acknowledged that, after the hearing, the items were sold for far less than
either Ellen's or Tom's values for them, the court did not value the items
at the sale price. Instead, the court adopted Tom's values. Again, the
court in its discretion may choose a value for an asset that is within the
range of the evidence presented. Semprebon, 157 Vt. at 214, 596 A.2d at
364.

III. Property Division and Maintenance

Next, Ellen challenges the court's division of the marital property
and its failure to award her maintenance. The court concluded that the
marital estate contained sufficient value to provide financial independence
for each of the parties, and awarded Ellen slightly more than $1.5 million,
mostly in cash. The court found that maintenance was unnecessary, because
"Ellen's income and [the] property award [would] be sufficient for her
reasonable needs [and enable her] to support herself at the standard of
living established during the marriage." As the court's property and
maintenance decisions are linked, Ellen's claims with respect to these
issues must be considered together. See DeGrace v. DeGrace, 147 Vt. 466,
470, 520 A.2d 987, 990

(1986) (property division and maintenance award are closely related under
Vermont's statutory scheme).

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. See Jakab v. Jakab, 163 Vt. 575, 585, 664 A.2d 261, 267 (1995).
As we have often noted, property division is not an exact science, and the
trial court has broad discretion in considering the statutory factors and
fashioning an appropriate order. See, e.g., Klein v. Klein, 150 Vt. 466,
469, 555 A.2d 382, 384 (1988). The court must, however, provide a clear
statement as to what was decided and why. Jakab, 163 Vt. at 585, 664 A.2d
at 267.

In her brief, Ellen challenges the court's conclusions with respect to
a number of the statutory factors. She has not, however, succeeded in
demonstrating an abuse of discretion by the court. See id. at 585, 664 A.2d at 267 (court's decision will be upheld unless its discretion was
abused, withheld, or exercised on clearly untenable grounds). For the most
part, the arguments are nothing more than a recital of evidence, such as
that of Ellen's claimed contributions to Tom's business activities, that
the court rejected as not credible.

In any event, Ellen does not link these arguments to a request for a
larger share of the marital estate. Instead, she argues that this Court
should "add back" the assets that she claims were erroneously excluded or
undervalued by the trial court, and then divide this revalued marital
estate using the same ratio that the trial court employed. As we have
already discussed, however, the court's factual findings regarding the
value of the marital estate were not clearly erroneous, and we will not
disturb them. Moreover, the court did not award Ellen a "share" of the
marital estate; it calculated a cash award that it considered appropriate
given the relevant statutory factors. The court's decision, which is
well-explained and supported by the findings, is not an abuse of
discretion.

Ellen further claims that the court should have awarded her
maintenance pursuant to 15 V.S.A. § 752. Although a court may award
significant amounts of both property and maintenance, see Johnson v.
Johnson, 155 Vt. 36, 43, 580 A.2d 503, 507 (1990), a court also has
discretion to make an award of property in lieu of maintenance. Naumann v.
Kurz, 152 Vt. 355, 358, 566 A.2d 1342, 1344 (1989); see 15 V.S.A. §
752(a)(1) (court may order maintenance if it finds that spouse seeking
maintenance lacks sufficient income, property, or both, including property
apportioned by court, to provide for reasonable needs). In this case,
given the substantial size of the marital estate, the court chose to divide
the marital property to allow each party financial independence. Ellen
does not necessarily challenge this approach, but considers her property
settlement too small to be an adequate substitute for maintenance payments
in this case.

The focus of Ellen's claim is that the court did not give adequate
consideration to the standard of living established during the marriage.
See 15 V.S.A. § 752(a)(1) & (2) (court may order maintenance if it finds
that spouse seeking maintenance cannot provide for reasonable needs and
cannot support herself at standard of living established during marriage).
She takes issue with the court's characterization of the parties' lifestyle
during the marriage as "inappropriate" and argues that the court had no
authority to consider whether she and Tom were living beyond their means.
According to Ellen, the court should have awarded her sufficient
maintenance and/or income-producing property to allow her to spend as she
did during the marriage, even if that spending level was unreasonable given
the parties' income and assets.

Although the court must consider the standard of living established
during the marriage, we cannot conclude that the Legislature intended
courts to ignore economic reality in these situations. A couple may, if
they are able to obtain credit and choose to do so, live an extravagant
lifestyle that they cannot afford. But such a financial arrangement cannot
last forever, and it can rarely last beyond a divorce, when property and
income must be split to support two households. See Kohut v. Kohut, 164
Vt. 40, 43, 663 A.2d 942, 944 (1995) (where

parties were constantly borrowing money and receiving assistance from
husband's parents during marriage, it was unlikely that their lifestyle was
sustainable after divorce). Indeed, Ellen's financial demands prove this
point well: her request for over $2.3 million in cash would have more than
wiped out the investment account, forcing Tom to liquidate other assets to
pay her and pay the taxes, and leaving very little, if any,
income-producing property to fund her request for $48,000 per year combined
maintenance and child support. The court correctly concluded that these
demands were "unreasonable."

In light of the property settlement, the court did not abuse its
discretion in failing to award maintenance to Ellen. Ellen received
sufficient cash to pay her attorney's fees, purchase a home worth
approximately $200,000, and still invest $1,000,000. The income stream
from that investment, combined with $18,000 per year in child support to
provide for the child's needs, should allow Ellen a very comfortable
standard of living. We see no grounds that justify disturbing the court's
decision. See Johnson, 155 Vt. at 40, 580 A.2d at 506 (party appealing
maintenance decision must show that there is no reasonable basis to support
it).

IV. Other Issues

A. Child Support Order

The court, noting that the parties had not presented sufficient
evidence to calculate the support amount based on the guidelines, did not
attempt such a calculation or make findings on the issue. Instead, the
court estimated a monthly support amount of $1500, and invited the parties,
if they wished to litigate the issue, to request a hearing before the
magistrate. See 4 V.S.A. § 461(a)(1) (magistrate has jurisdiction to hear
proceedings for establishment, modification and enforcement of child
support). Although unusual, the court's order was reasonable under the
circumstances. The $1500 estimate was not significantly higher than the
$1350 per month set in a temporary order in 1992; moreover, the court may
have believed that the parties would prefer to accept the estimate rather
than engage in another expensive legal

dispute. In any event, if one of the parties was dissatisfied, she or he
could take the issue to the magistrate for resolution.

Disregarding this instruction, Ellen instead seeks to contest the
child support order on appeal. She argues that Tom should be required to
pay $2000 a month in child support, rather than $1500 as ordered by the
court. This Court, however, is in no better position than the trial court
to determine the appropriate amount of child support. If the parties wish
to continue this dispute, they should present their evidence and arguments
to the magistrate.

B. Legal Fees

Both parties are dissatisfied with the court's handling of Ellen's
legal fees. To facilitate the parties' financial independence, the court
issued an interim final order that required Tom to pay Ellen $1.25 million
in cash and stated that "[e]ach party shall be responsible for his or her
own counsel and expert witness fees." In the final property distribution
order, the court concluded that "an additional and final award of $200,000
is sufficient to cover [Ellen's] litigation costs and will leave her with
ample money to buy a home."

Tom claims that the court erred by awarding Ellen $200,000 for
attorney's fees when she only requested $104,600. We do not, however, read
this portion of the court's order as an award of attorney's fees. The
court had previously stated that Tom and Ellen would be individually
responsible for those costs. In the final order, the court calculated an
additional cash award that would cover Ellen's obligations and the purchase
price of a new home, and still leave her with $1,000,000 to invest. The
court decided that $200,000 would be an appropriate amount. There was no
error.

Ellen, for her part, argues that the court erred by failing to require
Tom to pay attorney's fees due under a temporary order that predated the
interim order. We see no merit in this claim. The temporary order was
superseded by the interim order, which gave Ellen responsibility for her
own attorney's fees, and by the final property distribution order, which
considered Ellen's

unpaid litigation costs in calculating the final award. Tom has no further
obligation to pay for Ellen's attorney's fees.

C. Role of Presiding Judge

Although she does not explain what relief she seeks, Ellen claims that
the trial judge erred by continuing to preside over this matter after his
term in family court ended. According to Ellen, she was prejudiced by the
judge's continuing role in this case because of his "hostility" toward her.
This claim borders on the frivolous. Our rules plainly state, and we have
previously recognized, that "the expiration of a term does not affect a
judge's power over a case that has been pending before the judge."
DeGrace, 147 Vt. at 469, 520 A.2d at 989; see V.R.C.P. 6(c) (expiration of
term of court in no way affects power of court to do any act or take any
proceeding in any civil proceeding that has been pending before it).
Moreover, our review of the record does not reveal any bias or prejudice on
the part of the judge. Indeed, the judge exhibited remarkable patience
with the attorneys and the parties during these protracted and vehemently
disputed divorce proceedings.

The parental rights and responsibilities order is reversed and
remanded for further proceedings not inconsistent with this opinion. In
all other respects, the decision below is affirmed.

FOR THE COURT:

_______________________________________
Associate Justice

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

FN1. Ellen argues that this Court should strike as clearly erroneous
a number of the findings made by the trial court in its
parental-rights-and-responsibilities order, but she does not explain how
her argument on this point relates to the relief she seeks on appeal. At
any rate, after examining the record, we conclude that the court's findings
are supported by the evidence.

FN2. In her brief, Ellen argues that the court's alternate plan for
parent-child contact unfairly punishes her for moving out-of-state. At
oral argument, her counsel withdrew this claim, and we do not address it
here.

FN3. Although the court's order grants Ellen "sole" physical rights
and responsibilities, it also grants Tom substantial parent-child contact.
The child may spend one-fourth to one-third of her time with Tom. Under
these circumstances, the order may be better described as granting Ellen
"primary" physical rights and responsibilities.

FN4. The dissent argues that the court awarded parental rights and
responsibilities "primarily" to Ellen because it awarded her the greater
share of those rights and responsibilities -- that is, while the parties
share legal parental rights and responsibilities equally, Ellen received
most of the physical rights and responsibilities. On this view, § 665(a)
means nothing more than that one parent must receive more than fifty
percent of the parental rights and responsibilities. We do not believe
that the Legislature intended this result. This provision is the
Legislature's response to those parents who "cannot agree to divide or
share parental rights and responsibilities." 15 V.S.A. § 665(a) (emphasis
added). The Legislature recognized that where parents cannot work
together, one parent must be given primary responsibility to make decisions
on behalf of the child. In terms of the statute, this means that a court
cannot award joint legal parental rights and responsibilities to parents
who do not agree to such an award.

We see no basis to the dissent's claim that we have "distort[ed] the
language," post, at 3, of this provision. Our decision is based on the
statute's explicit requirement that court must "award parental rights and
responsibilities primarily or solely to one parent." Id. In our view, the
word "primarily" does not permit the court to force parents to share
responsibility for all major decisions affecting a child.

FN5. The dissent argues that our decision undermines the
Legislature's declaration that providing opportunities for the children of
divorced parents to "have . . . maximum continuing physical and emotional
contact with both parents" serves the children's best interests. 15 V.S.A.
§ 650. We fully agree with this policy, and our decision in no way
suggests that family courts should not award shared parental rights and
responsibilities in appropriate cases. The dissent is absolutely correct
that children benefit when their parents continue to cooperate and share
parenting responsibilities following a divorce. Where we part company is
on courts' authority when parents do not agree to share parental rights.
Consistent with the statute, parents may not be forced to this result,
creating a situation in which each decision will be a source of further
conflict and trauma for the child.

--------------------------------------------------------------------------
Concurring

No. 96-087

Ellen Adams Cabot Supreme Court

On Appeal from
v. Chittenden Family Court

Thomas D. Cabot, III November Term, 1996

Alden T. Bryan, J.

Debra R. Schoenberg, Burlington, Nicholas E. Tischler, Niskayuna, New
York, and Robert P. Davison, Jr. (On the Brief), Stowe, for
plaintiff-appellant

Susan M. Murray and Peter F. Langrock of Langrock Sperry & Wool,
Middlebury, for defendant-appellee/cross-appellant

PRESENT: Gibson, Dooley, Morse and Johnson, JJ., and Skoglund, D.J.,
Specially Assigned

MORSE, J., concurring. While I concur in the holding, I write
separately to discuss one aspect of the joint custody issue.

I readily agree with the Court's conclusion that divorced parents must
manifest an ability to cooperate and compromise over basic child-care
decisions to warrant an award of joint rights and responsibilities. Any
other conclusion would be contrary to the best interests of the children,
who should not be subjected to ongoing parental strife and continual
judicial intervention. Amid such disharmony, the family court's only
reasonable option is to award parental rights and responsibilities
"primarily or solely" to one parent. 15 V.S.A. § 665(a).

Even in such cases, however, there may exist circumstances that would
warrant the court reserving a specific, discrete area of parental
responsibility for the non-custodial parent. The statutory scheme
specifically contemplates such an award. See id. § 665(d) (court may order
parent who is awarded responsibility for "a certain matter involving a
child's welfare" to inform other parent when major change occurs) (emphasis
added). A case where the non-custodial

parent feels very strongly about religious upbringing while the custodial
parent is neutral or perhaps even assents to the wishes of the other is a
good example. Although the situation might otherwise not be suitable for
an award of joint custody, it might be appropriate to award rights and
responsibilities generally or "primarily . . . to one parent," id. § 665(a)
(emphasis added), while awarding a specific area of responsibility to the
other. As we recognize in Gazo v. Gazo, No. 95-339 (Vt. May 23, 1997), the
absence of complete parental agreement "does not mean that the only
alternative is an award of all rights and responsibilities solely to one
parent. The use of the word `primarily' shows that the Legislature
expected that some sharing of responsibilities, short of joint custody,
could be ordered." Id., slip op. at 7.

In the appropriate case there may be advantages to such an award.
Chief among them is fostering the non-custodial parent's sense of
responsibility. The parent remains involved with the child not only in the
physical sense of visitation, but also in the broader emotional sense of
retaining responsibility for an aspect of the child's upbringing.
Enhancement of the parent-child relationship, and ultimately better
cooperation between the parents themselves, are also potential long-term
benefits. Thus, such an order, where appropriate, serves the express
legislative goal of ensuring that the children of divorce continue "to have
the opportunity for maximum continuing physical and emotional contact with
both parents." 15 V.S.A. § 650.

Accordingly, while I concur in today's decision, I believe it is
important that it not be interpreted to preclude custodial awards of the
kind outlined above.

_______________________________________
Associate Justice
--------------------------------------------------------------------------
Concurring and Dissenting

No. 96-087

Ellen Adams Cabot Supreme Court

On Appeal from
v. Chittenden Family Court

Thomas D. Cabot, III November Term, 1996

Alden T. Bryan, J.

Debra R. Schoenberg, Burlington, Nicholas E. Tischler, Niskayuna, New
York, and Robert P. Davison, Jr. (On the Brief), Stowe, for
plaintiff-appellant

Susan M. Murray and Peter F. Langrock of Langrock Sperry & Wool,
Middlebury, for defendant-appellee/cross-appellant

PRESENT: Gibson, Dooley, Morse and Johnson, JJ., and Skoglund, D.J.,
Specially Assigned

SKOGLUND, D.J., Specially Assigned, concurring and dissenting. I
disagree only with the majority's holding that the family court exceeded
its authority by awarding joint legal parental rights and responsibilities.
The holding ignores the plain meaning of 15 V.S.A. § 665(a), which requires
the court to award parental rights primarily or solely to one parent when
the parents cannot agree to share those rights. Worse, it provides further
incentive for divorcing parents who are primary caregivers to refuse to
cooperate with their spouses on sharing parental rights and
responsibilities, and thus undermines the Legislature's stated policy of
furthering children's best interests by maximizing their continuing
physical and emotional contact with both parents following divorce. 15
V.S.A. § 650.

One need look no further than the instant case to see the negative
impact of today's ruling. The family court found that although Tom had
demonstrated good parenting skills and enjoyed a healthy relationship with
his daughter, the child had begun to exhibit signs of Parental Alienation
Syndrome as the result of Ellen's attempts to alienate her from her father.
Despite

being contented and happy while at her father's house, the child repeatedly
told her mother that she hated her father and that she did not want to
spend time with him. As the court found based on expert testimony, the
child was reacting to Ellen's hostility toward Tom by telling her mother
what she wanted to hear.

Recognizing both that the child was being negatively affected by
Ellen's efforts to alienate her from her father and that the resulting
parental alienation, if left unchecked, had the potential to destroy the
father-daughter relationship, the court concluded that the family's
principal problem -- the stress caused by Ellen's attempts to remove Tom
from the child's life -- would be best resolved by a change in Ellen's
attitude rather than the destruction of the child's relationship with her
father. Thus, the court determined that while it would be in the child's
best interest to remain with Ellen, her lifelong primary caregiver, the
parties should share legal rights and responsibilities to allow Tom to have
a continuing meaningful involvement in his daughter's life.

The court concluded that this arrangement was possible because,
ironically, notwithstanding Ellen's attempts to undermine the child's
relationship with her father, the parties had generally been cooperative in
matters concerning their daughter. In the court's view, though the parties
differed in styles and approaches to life, they had been able to
communicate and agree on the major issues concerning the child's
upbringing. Indeed, according to the court, the parties had similar social
and educational backgrounds, similar values, and similar aspirations for
their daughter.

The majority does not dispute any of these findings or conclusions,
but rather asserts that the court's order is unauthorized under § 665(a)
because it cannot be characterized as awarding primary parental rights and
responsibilities to Ellen. The majority acknowledges that the family court
gave Ellen sole physical rights and responsibilities, and that, therefore,
she is primarily responsible for the routine daily care and control of the
child. Nevertheless, the majority minimizes this assignment of parental
responsibilities and concludes that because Ellen can make

no important decisions concerning the child without consulting and reaching
agreement with Tom, parental rights and responsibilities were not awarded
primarily to Ellen.

The majority's conclusion is unsound because it is based on a faulty
premise. I submit that it is the day-to-day routine matters that connect a
child with a parent and that offer the most opportunities for a parent to
affect a child's growth and development. Undoubtedly, Ellen would be
unwilling to trade places with Tom with respect to the court's
determination of parental rights.

Under the statute, parental rights and responsibilities include both
legal and physical responsibilities. See 15 V.S.A. § 664(1). Ellen was
granted sole physical responsibility and shared legal responsibility for
the child. Plainly, then, though the family court required consensus on
major decision-making and gave Tom visitation rights, it awarded family
parental rights and responsibilities primarily to Ellen. See Comment, A
Critical Look at Vermont's New Child Custody Law, 11 Vt. L. Rev. 671,
675-76 (1986) (word "primarily" in § 665(a) implies that although one
parent may have majority of rights and responsibilities, other parent will
still share legal or physical rights and responsibilities).

The majority avoids this obvious fact by distorting the language of
the governing statute. According to the majority, "where the parents cannot
agree, the court must award primary [`or sole'] parental rights and
responsibilities to one parent." Ante, at 7. That is not how the
Legislature wrote the statute, which provides: "When the parents cannot
agree to divide or share parental rights and responsibilities, the court
shall award parental rights and responsibilities primarily or solely to one
parent." 15 V.S.A. § 665(a). Thus, the Legislature gave the court some
discretion in determining what rights and responsibilities to assign to
each parent.

The language of § 665(a), particularly the phrase "primarily or
solely," represents a compromise between House conferees, who wanted to
prohibit judges from granting joint custody absent the parties' agreement,
and Senate conferees, who were unwilling to constrain judges in contested
cases in such a manner. A. Davenport, A Legislative History of Act 181,

1986 Amendments to Vermont's Child-Custody Law, at 3 (1986). As Judge
Davenport, then a state representative, pointed out:

The compromise language in the final version reflects concessions
on both sides. It allows a judge in a contested case to award rights
and responsibilities "primarily or solely to one parent." The
judge's ability is, however, tempered by 15 V.S.A. § 665(b)(8),
which requires that parents be able to cooperate with each other
when rights and responsibilities are divided or shared.

Id. Considering this history, the Legislature's use of the word
"primarily" should be seen as giving family court judges some discretion to
depart from the all-or-nothing approach adopted by the majority.

Further, as part of the same bill, the Legislature enacted a provision
declaring and finding "that after parents have separated or dissolved their
marriage it is in the best interests of their minor child to have the
opportunity for maximum continuing physical and emotional contact with both
parents." 15 V.S.A. § 650. This provision undercuts the majority's
conclusion that the family court's order violates not only the language of
§ 665(a) but also the policy behind the statute.(FN1) Indeed, §§ 650 and
665(a) resulted at least in part from an effort to override this Court's
adoption of a presumption against joint custody, see Lumbra v. Lumbra, 136
Vt. 529, 532, 394 A.2d 1139, 1142 (1978); A. Davenport, supra, at 1, and
thus follow the national trend away from the common-law presumption against
sharing parental rights and responsibilities.(FN2)

This trend has been fueled by research suggesting that the emotional
trauma children and parents experience following divorce is exacerbated by
parental conflict stemming from sole custody awards, under which one parent
"wins" the right to exercise exclusive decision-making authority, while the
other parent "loses" the right to remain an integral part of the child's
life by having some say in the child's growth and development. H.
Robinson, Joint Custody: An Idea Whose Time Has Come, 21 J. Fam. L. 641,
645 (1983). When parental rights and responsibilities are awarded solely
to one parent, that parent assumes "a truly awesome power to shape and
influence the child's image of, and attitude toward, the noncustodial
parent." Id. at 647. This often results in the noncustodial parent
withdrawing from contact with the child, which, in turn, can create in the
child feelings of abandonment. Visitation rights alone cannot overcome
these problems. A child's perception of a noncustodial parent is tainted
when that parent lacks the ability to exercise any control or make any
major decisions in the child's life.

The majority recognizes the family court's desire to preserve the
child's relationship with her father, but states that an order imposing
shared decision-making is inappropriate where the parents "have not evinced
a willingness to work together." Ante, at 8. The concurrence readily
agrees that divorced parents "must manifest an ability to cooperate and
compromise over basic child-care decisions to warrant an award of shared
rights and responsibilities." Ante, at 1. Both opinions ignore the family
court's findings and conclusions, which are fully supported by the record,
that the parties have similar backgrounds, values, interests, and
aspirations for their daughter, and are able to communicate and cooperate
over issues concerning her needs.

Here, we have two parents who want to preserve the close, loving
relationship that each of them has had with their daughter. Ellen,
however, has a history of abusing her authority over the child by
attempting to alienate her from her father. To protect the father-daughter
relationship and allow Tom to have some meaningful role in the child's life
without uprooting her, the court allowed the child to remain with Ellen,
her primary caregiver, but granted both Ellen and Tom shared parental
authority to make the major decisions affecting their daughter's

life. Under the facts and circumstances of this case, the order is
reasonable. Further, because the order awards parental rights and
responsibilities primarily to one parent, as explicitly permitted by §
665(a), it is within the family court's authority. I would affirm the
order in its entirety.

_______________________________________
District Judge, Specially Assigned

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

FN1. The majority states that its reading of § 665(a) is reinforced
by 15 V.S.A. § 666(b), which requires parents who have agreed to share or
divide parental rights to include provisions in their agreement that
address, among other things, procedures for communicating about the child's
welfare and for resolving disputes. I agree that it might have been
helpful for the family court to address these issues, but I do not agree
that § 666(b) evinces the Legislature's intent to bar family court judges
from ordering shared responsibility (absent an agreement between the
parties) with respect to any of the subject matters mentioned in that
provision. Rather, § 666(b) is a checklist of important factors for
parents and courts to consider in sharing and assigning parental rights and
responsibilities.

FN2. Currently pending before the Legislature is a bill that would
amend § 665(a) by inserting a sentence stating: "[I]t shall be presumed
that shared parental rights and responsibilities are in the best interest
of the child." S. 124, 1997 Sess.

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