Mansfield v. Mansfield

Mansfield v. Mansfield  (97-001); 167 Vt. 606; 708 A.2d 579

[Filed 10-Feb-1998]



                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-001

                             DECEMBER TERM, 1997



Kurt Mansfield                     }    APPEALED FROM:
                                   }
                                   }
     v.                            }    Rutland Family Court
                                   }
Jayne Mansfield                    }
                                   }    DOCKET NO. 186-4-93Rddm

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

       Plaintiff Kurt Mansfield appeals from a Rutland Family Court decision
  awarding defendant Jayne Mansfield sole legal and physical rights and
  responsibilities for the parties' minor children, and distributing the
  parties' property.  Plaintiff claims that three of the court's findings are
  clearly erroneous and that the court abused its discretion in not properly
  weighing the recommendations of the family evaluator, not providing an
  even-handed analysis of the 15 V.S.A. § 665(b) factors, and not making an
  equitable division of property.  We affirm.

       Kurt and Jayne Mansfield were married on August 7, 1983.  The marriage
  produced three children, Ross, Tiffany, and Erin, who at the time of the
  divorce were ages twelve, ten, and seven years old respectively.  This
  divorce action began in 1993.

       Pursuant to V.R.F.P. 5(a), the trial court ordered a family
  evaluation, which was filed with the court on February 10, 1995.  The
  evaluator recommended that custody of the children be awarded to plaintiff,
  with legal rights and responsibilities shared by both parties.  Defendant
  subsequently contacted a psychologist and entered into counseling with him. 
  The psychologist concluded that the children would be best served if they
  were to remain in the primary care of defendant.  The trial court granted
  the divorce and, acting under § 665(b), awarded legal and physical rights
  and responsibilities of the minor children to defendant, with visitation
  awarded to plaintiff.  Pursuant to 15 V.S.A. § 751, it also made an
  equitable distribution of the parties' property.

       With respect to the custody determination, plaintiff argues that the
  trial court's findings do not represent a complete, balanced, or
  even-handed analysis of the § 665(b) factors, that the trial court
  minimized and mischaracterized the family evaluator's recommendation and
  placed undue weight on defendant's therapist's testimony, and that certain
  of its findings are clearly erroneous. The family court has broad
  discretion in custody matters, and this Court must affirm its decision
  unless this discretion was erroneously exercised.  See Myott v. Myott, 149
  Vt. 573, 578, 547 A.2d 1336, 1339 (1988).  The court is required under §
  665(b) only to consider each factor listed when making a determination of
  parental rights and responsibilities--it imposes no specific requirement on
  how this consideration is to be manifested in the court's findings and
  conclusions.  See Harris v. Harris, 149 Vt. 410, 414, 546 A.2d 208, 212
  (1988).  In this instance, the family court considered all nine factors in
  reaching its conclusion that the interests of the children would be best
  served if defendant was given legal and physical responsibility for them. 
  Its conclusion is supported by defendant's position as the children's
  primary caregiver, a factor given great weight unless the parent is unfit. 
  See Harris v. Harris, 162 Vt. 174, 178, 647 A.2d 309, 312 (1994).  We
  conclude that the family court performed an even-handed and

 

  balanced analysis under § 665(b).

       Plaintiff also objects to the court's findings from the evaluator's
  testimony and its ultimate decision not to follow his recommendation.  This
  Court will not disturb a finding of the family court unless, viewing the
  evidence in the light most favorable to the prevailing party, it is clearly
  erroneous.  See Semprebon v. Semprebon, 157 Vt. 209, 214, 596 A.2d 361, 363
  (1991).  Here, the evaluator recommended that plaintiff receive custody of
  the children, but qualified the opinion if it were "uncontrovertible" that
  plaintiff was a domestic abuser.  The court found that plaintiff was a
  domestic abuser and, as a result, concluded that the evaluator would not
  recommend he receive custody.  Plaintiff complains that it was disputed
  whether he was an abuser, and the evaluator's qualification did not apply. 
  The court is the fact-finder, not the expert witness.  Once the court found
  the determinative fact, its characterization of the evaluator's testimony
  was fair.  For similar reasons, we reject plaintiff's argument that the
  court's finding of a qualification in the evaluator's opinion if plaintiff
  were a liar is unsupported by the evidence.

       The court was free not to follow Dr. Aines' recommendation because
  family evaluation reports are "only advisory in nature and it is within the
  discretion of the court to accept or disregard a custody evaluation team's
  recommendation."  Bonanno v. Bonanno, 148 Vt. 248, 251-52, 531 A.2d 602, 604 (1987); see deBeaumont v. Goodrich, 162 Vt. 91, 104, 644 A.2d 843, 851
  (1994).  The court explained the basis for its decision.  We conclude that
  it was within the court's discretion.

       Finally, with respect to custody, plaintiff asserts error in the
  court's finding that defendant's counsel testified that plaintiff's first
  wife said to him that plaintiff would "get even" with her if she testified
  against him.  In fact, defendant's counsel asked the ex-wife on cross-
  examination whether she made that statement, and she denied making it. 
  Although the court misstated the form of the evidence, it was free to
  disbelieve the ex-wife's denial of the statement.  Moreover, this finding
  was one of many about the ex-wife's testimony and was inconsequential to
  the court's decision.  We conclude that the minor misstatement of the
  evidence was a harmless error, see Paradis v. Kirby, 138 Vt. 524, 528, 418 A.2d 863, 865 (1980), because the trial court could have simply disbelieved
  Ms. Mansfield's testimony and made the same finding.  See Kanaan v. Kanaan,
  163 Vt. 402, 405, 659 A.2d 128, 131 (1995) (a family court's findings are
  accorded wide deference on review because the court is in a unique position
  to assess the credibility of witnesses and the weight of the evidence).

       With respect to the property division, plaintiff asserts that the
  court's award was not equitable and was based on improper valuation of
  certain property.  Under 15 V.S.A. § 751, the family court has broad
  discretion in considering the statutory factors governing distribution of
  property in a divorce.  See Semprebon, 157 Vt. at 215, 596 A.2d  at 364.  We
  find no abuse here.

       Plaintiff's first complaint is about the valuation of a house, no
  longer owned by the parties, when it came into the marriage.  The court
  credited plaintiff with $10,000 for bringing this house into the marriage,
  basing its valuation on the amount awarded to plaintiff's ex-wife when they
  divorced.  In reaching this conclusion, the court rejected plaintiff's
  testimony that he and his ex-wife greatly increased the value of the
  property during their marriage and it appreciated little during the
  marriage of the parties.  Obviously, the court found this testimony was
  inconsistent with the small property award to the ex-wife in the earlier
  divorce.  We conclude that the finding was sufficiently supported by the
  evidence and was not clearly erroneous.  Similarly, we dispose of
  plaintiff's challenge to how and why certain liquid assets

 

  owned by the parties were expended.  The findings on these assets were
  supported by the evidence, and their treatment was within the discretion of
  the court.

       Plaintiff also challenges the valuation of the marital residence, a
  subject of expert testimony from both parties.  The court is free to choose
  a value for property within the range of evidence presented.  See Cabot v.
  Cabot, ___ Vt. ___, ___, 697 A.2d 644, 652 (1997).  The court's valuation
  of the marital residence at  $400,000.00 was within the range of the values
  assigned by the experts.  Plaintiff's arguments go to the weight of the
  expert testimony and are not grounds for reversal.

       Finally, plaintiff argues that the court imposed an unfair mechanism
  for requiring him to pay defendant's share of the value of the marital
  home.  The court required the home to be placed on the market at a price
  equal to its value of $400,000.00, with the price to be reduced by
  $10,000.00 for each ninety day interval it remained unsold.  When
  fashioning a property award, the family court has the power to order the
  sale of a marital home.  See Clapp v. Clapp, 163 Vt. 15, 23, 653 A.2d 72,
  77 (1994).  In doing so, it is not inequitable to require certain
  mechanisms to ensure that one spouse pay the other a fair share of the
  equity in this property, and to fashion an order that will accomplish this
  in a reasonable amount of time.  Courts are normally granted wide
  discretion in fashioning schedules for distribution of marital property in
  a divorce.  See Grice v. Grice, 673 So. 2d 772, 775 (Ala. Civ. App. 1995)
  (court could award periodic alimony until house is sold and then require a
  lump sum alimony payment); deLevie v. deLevie, 621 N.E.2d 594, 597-98 (Ohio
  Ct. App. 1993) (court could give occupant of home five years to pay off
  other spouse's interest).  The method of reducing the asking price at
  regular intervals was reasonable to accomplish the court's objective.  We
  find no abuse of discretion.

       Affirmed.




                              BY THE COURT:



                              _______________________________________
                              Jeffrey L. Amestoy, Chief Justice

                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Marilyn S. Skoglund, Associate Justice