Camisa v. Camisa

Camisa v. Camisa  (97-083); 168 Vt. 563; 714 A.2d 641

[Filed 8-May-1998]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-083

                             DECEMBER TERM, 1997


Kathleen Keenan Camisa          }     APPEALED FROM:
                                }
                                }
     v.                         }     Franklin Family Court
                                }
Robert J. Camisa                }
                                }     DOCKET NO. F106-4-91 Frdm


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

       Wife appeals from a divorce judgment, contending that the family court
  erred by (1) using the date of the court's initial divorce decree in
  calculating the proportion of retirement benefits attributable to the
  marriage; (2) declining to order retroactive maintenance payments and
  reimbursement of health insurance payments; (3) granting husband's motion
  to reconsider; and (4) improperly valuing certain marital assets.  We
  affirm.

       This is the second time this divorce action has come before us.  The
  initial divorce decree became final on April 13, 1992.  Husband appealed
  from that judgment, contending that the family court's division of marital
  assets was based upon erroneous findings and improperly included
  prejudgment interest, and that the award of maintenance was unsupported by
  the evidence.  We reversed and remanded for a new trial, holding that the
  court had erred in allocating husband's pension without determining the
  portion of benefits acquired during the marriage (the so-called "coverture
  fraction"), awarding prejudgment interest on certain assets, and failing to
  make adequate findings to support the maintenance award of $2,000 per month
  to wife.  Camisa v. Camisa, No. 92-377 (Vt. Feb. 1, 1994) (mem.).

       Following our remand, the case was retried and a new order, with new
  findings and conclusions, was entered in October 1996.  Among other
  provisions, the court ordered a division of marital assets providing
  approximately 60% to wife and 40% to husband, and required husband to pay
  maintenance to wife of $1,000 per month until he retires.  The court
  declined to order retroactive maintenance payments of $12,000, or
  reimbursement of health insurance premiums totalling $3,550.  To accomplish
  the 60/40 division, the court ordered husband to pay wife the amount of
  $17,000, later reduced to $12,860.  This appeal followed.

                                     I.

       Wife first contends the court erroneously allocated husband's
  retirement accounts by using the date of the initial divorce decree, April
  13, 1992, as the cutoff date for determining the so-called "coverture
  fraction," i.e., the proportion of the retirement accounts attributable to
  the marriage.  See McDermott v. McDermott, 150 Vt. 258, 261, 552 A.2d 786,
  789 (1988) (in allocating pension benefits, "the court must determine what
  portion of the entitlement was acquired during the marriage").  Wife
  asserts that res judicata principles do not apply when a judgment is
  reversed and remanded for a new trial, and therefore the court erred in
  using the date of the initial divorce decree to determine when the marriage
  ended.  She also contends the court erred in using the earlier date for
  measuring the pension benefits attributable to the

 

  marriage, while simultaneously considering the period since the decree for
  purposes of determining the value of marital assets.

       The court's ruling was not based on principles of collateral estoppel
  or res judicata, but rather on the principle that the coverture fraction
  should, as the court stated, "reflect the number of years in which both
  parties contributed to the growth of the pension."  This period ended, in
  the court's view, at least at the time of the initial divorce decree, if
  not earlier, at the time of separation.  The court's reasoning was sound. 
  We have indicated that in calculating the portion of a spouse's pension
  attributable to the marriage, courts should use "that date .  .  .  most
  reflective of the functional end of marriage," which most often is the date
  of separation.  Russell v. Russell, 157 Vt. 295, 305, 597 A.2d 798, 804
  (1991).  Thus, wife was not prejudiced or improperly deprived of any
  benefits by the court's decision to rely on the date of the initial decree,
  which actually post-dated the parties' separation.  Nor is there is any
  logical or legal reason why the court could not use the initial decree for
  purposes of determining the coverture fraction, while also considering the
  period since the initial decree for purposes of valuing the marital estate. 
  Thus, there was no error in the court's allocation of the retirement
  accounts.

                                     II.

       Wife next contends the court erred in refusing to award retroactive
  maintenance, and in declining to order reimbursement of certain health
  insurance premiums.  The effective date of any maintenance order is left to
  the sound discretion of the trial court, and we will not disturb its
  decision so long as it is supported by reasonable and credible evidence. 
  See Chaker v. Chaker, 155 Vt. 20, 30-31, 581 A.2d 737, 743 (1990). 
  Pursuant to the initial divorce decree requiring spousal maintenance of
  $2,000 per month, husband had paid approximately $42,000 between April of
  1992 and this Court's February 1994 decision reversing the judgment.  In
  ordering spousal maintenance of $1,000 per month, the court here noted that
  an award retroactive to the date of the initial decree would entitle wife
  to an additional $12,000 (54 months, or $54,000, less the $42,000 already
  paid).  The court specifically declined to make the award retroactive,
  however, noting that wife's income and assets were higher, and husband's
  were lower, during the earlier period.  The court also noted that it had
  accounted in the property division for the fact that wife had spent down
  her assets to meet her past needs.  Wife has not demonstrated that the
  court's findings were unsupported by the evidence, or that its decision was
  unreasonable.  Thus, we cannot say that the court's refusal to award
  retroactive maintenance represented an abuse of discretion.

       Wife further contends the court erred in refusing to order husband to
  reimburse her for about $3,500 in health insurance premiums she paid to
  continue her medical coverage after she was removed from husband's policy
  while the initial divorce decree was on appeal.  In declining to order
  reimbursement, the court indicated that it had accounted for the payments
  in its overall distribution of the assets and property division.  Wife has
  not shown that the court abused its discretion in accounting for the
  payments in this fashion.  See Johnson v. Johnson, 155 Vt. 36, 43, 580 A.2d 503, 507 (1990) (trial court enjoys wide discretion in disposition of
  marital estate, and we will affirm its decision absent showing that
  evidence fails to support findings, or findings fail to support
  conclusions).

                                    III.

       Wife next contends the court erred in granting husband's motion to
  reconsider, which resulted in a portion of a judgment debt to Madelyn
  Keenan, wife's mother, being treated as a marital debt rather than a debt
  of husband alone.  The debt and judgment arose out of a loan

 

  from Mrs. Keenan for the purchase of a car.  The family court had initially
  determined that husband was responsible for the judgment, but the issue of
  prejudgment interest was on appeal to this Court during the divorce
  proceedings.  Husband's motion to reconsider was prompted by our decision
  in Keenan v. Camisa, No. 96-031 (Vt. Oct. 9, 1996) (mem.), affirming the
  superior court's ruling that prejudgment interest on the debt would accrue
  from the date plaintiff demanded payment rather than from the date
  plaintiff brought her suit.  In granting the motion to reconsider, the
  court stated that the "significant" amount of prejudgment interest award
  affirmed by this Court warranted an adjustment of its original order in the
  interest of "fairness." The overall result of the court's ruling was to
  reduce the amount husband owed wife from $17,000 to $12,860.

       Wife contends the court abused its discretion in granting the motion
  because husband had ample opportunity to litigate the issue at trial,
  notwithstanding the fact that the case was on appeal.  The trial court
  enjoys broad discretion, however, to alter or amend its own judgment to
  avoid an injustice to a party and avoid unnecessary appeal and delay.  See
  Osborn v. Osborn, 147 Vt. 432, 433, 519 A.2d 1161, 1163 (1986).  The
  court's conclusion that the decision in Keenan v. Camisa required it to
  reconsider its initial ruling in the interest of "fairness" was well within
  the court's discretion.

       The evidence also supported the court's conclusion that the debt was
  incurred on behalf of the marital estate; although the judgment was against
  husband, the court found that both parties discussed the loan with wife's
  mother and the vehicle was used as a family car.  Thus, there was no error.

                                     IV.

       Finally, wife contends the court erred by improperly valuing certain
  assets for purposes of the property division.  As we observed in Kanaan v.
  Kanaan, 163 Vt. 402, 405, 659 A.2d 128, 131 (1995), "we will uphold the
  court's valuation conclusions as long as they are supported by adequate
  findings, which are in turn supported by sufficient evidence in the
  record."

       Wife first contends the court erred in valuing the so-called "agency
  account," which consisted of husband's inheritance from his father.  The
  court initially valued the account at $102,268, rejecting husband's lower
  figure of $96,000, and further found that husband had used the account as
  collateral for a $32,000 bank loan to pay attorney's fees for the parties'
  son, who had faced serious criminal charges.  The court found that the son
  was not capable of making payments, and noted that the bank had been
  deducting $519 per month from the account toward payment of the loan, the
  balance of which stood at approximately $22,000.  The court found that the
  loan reduced the real value of the account to $80,000.  Although wife
  contends otherwise, the evidence supported the court's finding that the
  lien reduced the value of the account, and the finding was not an abuse of
  discretion.  See id.

       Nor did the court err in looking to the current value of the account
  rather than its value at the time of the first hearing, five years earlier. 
  See Klein v. Klein, 153 Vt. 551, 557, 572 A.2d 900, 904 (1990) (following
  remand, court must rely on current rather than original valuation of
  assets).  Although the court acknowledged that husband had made a number of
  withdrawals since the first hearing, it also found that husband had managed
  the account well, which allowed him to make the withdrawals while
  maintaining the principal.  See id. at 557-58, 572 A.2d  at 904 (in
  determining current value of assets, court may consider all relevant
  factors at post-remand hearing).  Hence, we cannot say that the court
  abused its discretion in valuing the agency account.

 

       Finally, wife contends the court erred in valuing a variety of
  specific assets of the parties, including cars, a boat, furniture, and
  jewelry, resulting in a miscalculation of several thousand dollars due wife
  pursuant to the 60/40 property division.  We have reviewed the record, and
  find that the evidence reasonably supports the court's assignment of
  values.  See Kanaan, 163 Vt. at 405, 659 A.2d  at 131.

       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