In re Estate of Fitzgerald

In re Estate of Fitzgerald (98-087); 169 Vt. 588; 733 A.2d 35

[Opinion filed 07-Jun-1999]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-087

                             NOVEMBER TERM, 1998


In re Estate of Amy Fitzgerald  	 }	APPEALED FROM:
                                         }
                                         }
                                       	 }	Chittenden Superior Court
                                         }	
                                         }
                                         }	DOCKET NO. 1492-96CnC	


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

       Appellant Gregory Fitzgerald appeals from a superior court order that
  remanded this case to the  probate court to hold a hearing and dispose of
  the marital property of Gregory and Amy  Fitzgerald.  Appellant contends
  that the superior court erred in finding that his sole property was 
  marital property subject to equitable distribution in the probate court. 
  We reverse and remand.

       Appellant was convicted for the first degree murder of his wife Amy
  Fitzgerald.  In connection  with his criminal proceeding, the State seized
  evidence from the apartment where Amy Fitzgerald  was living.  The district
  court ruled that the probate court should determine to whom the property 
  should be returned.  The probate court decreed all property removed from
  the person or property  of Amy Fitzgerald to her parents, and all property
  seized from the person or property of appellant  to appellant.  Appellant
  appealed to the superior court, contending that some of the items seized 
  from the apartment of Amy Fitzgerald belonged to him, including a camera,
  an answering  machine, certain parts of a computer and mail addressed to
  him or to Amy Fitzgerald and him. 
 
       The superior court held a de novo trial, see Reporter's Notes to
  V.R.C.P. 72 (appeal from probate  court to superior court is for trial de
  novo), but then ordered the matter remanded to the probate  court for
  another evidentiary hearing to determine which of these items are marital
  property and  to dispose of the marital property between the heirs of Amy
  Fitzgerald and appellant.  Appellant  appeals, arguing that the court erred
  in applying divorce law and in determining that the property  was marital
  property.

       Generally, we would dismiss this appeal because it is not from a final
  order, and appellant failed  to request permission to appeal.  See V.R.A.P.
  5(b) (appeal of interlocutory orders by  permission).  The superior court
  erred, however, in remanding the case to probate court.  The  superior
  court held a do novo trial and should have distributed the property in a
  final judgment  from which an appeal to this Court would have been proper. 
  In the interests of judicial economy,  we do not dismiss this appeal,
  leaving the parties to try this case again in probate court and  possibly a
  third time before the superior court.  On the other hand, the superior
  court failed to  resolve the dispute by making the necessary findings and
  distributing the property.  Thus, we must  remand for the court to make the
  necessary findings and enter a final judgment that distributes the 
  property in dispute.  

       For purposes of remand, we briefly address one issue raised by
  appellant in this appeal.  Cf.  Hodgdon v. Mt. Mansfield Co., Inc., 160 Vt.
  150, 160-61, 624 A.2d 1122, 1128 (1992) 


 

  (addressing issue likely to arise on remand).  We agree with appellant that
  the superior court erred  in applying divorce law to decide that the
  personal property seized by the State from Amy  Fitzgerald's apartment was
  marital property subject to equitable distribution.  The concept of 
  marital property does not exist in the context of a probate case.  A
  similar concept may be  applicable however; married persons may own
  property as tenants by the entirety.  See The  Beacon Milling Co., Inc. v.
  Larose, 138 Vt. 457, 460, 418 A.2d 32, 33 (1980) ("It is well  established
  that spouses can hold personal property as tenants by the entirety.").  We
  have  previously stated the rules for distributing property held as tenants
  by the entirety where one  spouse is convicted of intentionally and
  unlawfully killing the other spouse.  See Preston v.  Chabot, 138 Vt. 170,
  174-75, 412 A.2d 930, 933 (1980).

       Reversed and remanded.





                                       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