Weaver v. Weaver

Weaver v. Weaver (2001-444); 173 Vt. 512; 790 A.2d 1125

[Filed 09-Nov-2001]
        
                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-444

                             OCTOBER TERM, 2001


Janet Weaver	                       }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Addison Family Court
                                       }
                                       }	
Todd B. Weaver	                       }
                                       }	DOCKET NO. 126-7-99 Andm

                                                Trial Judge: Rita Flynn Villa

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


       Husband appeals the final order of divorce.  Husband contends: (1) the
  court abused its  discretion in considering husband's adultery in
  allocating the debt and property of the marriage; (2)  the court erred in
  distributing husband's tax-deferred savings plan (TDSP) and car debt, and
  in  awarding a clock to wife; (3) the court abused its discretion in
  failing to adopt husband's proposed  parent-child contact schedule; (4) the
  court's maintenance award was erroneous; and (5) the court  erred in not
  awarding child support.  We affirm in part and remand for the calculation
  of separate  maintenance and child support orders.  

       The parties were married on August 6, 1992, and have one child, a son
  Devin, born September  17, 1994.  Wife has a high school education and
  worked eighteen hours a week at an off-track betting  office at the time of
  the marriage.  Husband has an associate's degree in electronics technology
  and  has worked for IBM since 1982.  Near the time of Devin's birth, the
  couple agreed that wife would  stop working to stay at home to care for the
  child.  In 1996, to accommodate husband's employment  transfer at IBM, the
  family moved from Fishkill, New York, to Colchester, Vermont.  The family 
  eventually bought and moved into a three bedroom ranch home in Monkton. 
  Husband began an  extra-marital relationship with a woman he met through an
  internet chat room.  After discovering the  relationship, wife attempted to
  save the marriage and sought marriage counseling.  Husband  maintained his
  preference for his new partner and relationship, however, ending the
  marriage.  The  couple separated in September 1999, and husband moved in
  with his new partner.  

       The parties stipulated to shared joint legal and physical rights and
  responsibilities for Devin.   At the final hearing, the court heard
  testimony on the issues of parent-child contact, spousal  maintenance, and
  property distribution.  The court adopted mother's parent-child contact
  proposal,  which awarded mother parent-child contact during the school
  week, and father parent-child contact 

 
 
  every weekend from Friday afternoon until Monday morning.  Under the
  schedule, the parties  alternate vacations and school holidays and divide
  the summer evenly in two-week alternating  intervals.  The court awarded
  wife one half the coverture share of  husband's TDSP account and IBM 
  retirement.  The court reduced this award by part of the marital debt,
  resulting in a net award to wife  of $9,733.62.  The court awarded wife
  possession of the 1999 Ford Escort and ordered her  responsible for the
  outstanding loan thereon from September 1, 2000 forward.  Citing the tax 
  consequences of maintenance and child support, the court awarded wife
  maintenance rather than  child support.  The court ordered husband to pay
  wife $3,000 per month for the first six years, then  for the following six
  years, $2,500 per month.  Husband appeals.

       Husband first contends that the court abused its discretion in
  considering his fault when  distributing the debts and assets of the
  marriage.  Relying on cases from other jurisdictions, husband  argues that
  only egregious conduct that shocks the conscience of the court should
  qualify as fault  which may be considered by a court when dividing marital
  property.  Husband maintains that  adultery, even if proven, does not
  constitute fault which can influence a court's distribution of marital 
  property.  In Vermont, the family court has wide discretion in dividing
  marital property, and we will  uphold its decision absent a showing of
  abuse or withholding of this discretion.  Trahnstrom v.  Trahnstrom, __ Vt.
  __, __756 A.2d 1242, 1246 (2000) (mem.).  In dividing marital property, the 
  court may consider the respective merits of the parties.  15 V.S.A. §
  751(b)(12).  A family court does  not abuse its discretion by including a
  party's conduct during coverture, including involvement in an 
  extra-marital relationship, as one of the factors influencing a property
  award.  See Lewis v. Lewis,  149 Vt. 19, 24, 538 A.2d 170, 173 (1987)
  (court did not abuse its discretion in considering wife's  extra-marital
  affair as one factor in dividing property).  Thus the court did not do so
  here.

       Husband argues in the alternative that wife failed to establish that
  husband engaged in an  adulterous relationship before separation.  He
  claims that he and his new partner effectively rebutted  the incriminating
  e-mails evincing a sexual relationship.  He also maintains that he and his
  current  partner each testified that they were "just friends" and did not
  begin a sexual relationship until after  the parties separated and husband
  immediately moved in with new partner.  A review of the record  reveals
  that there was sufficient evidence supporting the court's finding that
  husband had engaged in  an extra-marital affair and that his decision to
  pursue this new relationship precipitated the end of the  marriage.  Wife
  testified that husband admitted he had an extra-marital sexual relationship
  in 1998  and that, after a few months of couples' counseling, had shared
  that he loved this other woman.  It is  the province of the trial court to
  weigh the conflicting testimony.  See Vt.Women's Health Ctr. v.  Operation
  Rescue, 159 Vt. 141, 149, 617 A.2d 411, 416 (1992).  Therefore we will not
  disturb the  court's finding on this point.

       We also find unavailing husband's claim that the court erred in
  allocating the TDSP debt and  car loan, and in awarding a clock to wife. 
  Given his employment and earning history at IBM,  husband, unlike wife, has
  the ability to acquire future capital assets and to absorb the TDSP debt
  and  the one year of car loan payments husband made during the year of
  separation.  See 15 V.S.A. §  751(b).  The record supports the court's
  award of the clock to wife.  The parties gave conflicting 

 

  testimony on how this asset was acquired.  The court did not abuse its
  discretion in accepting wife's  version.  Accordingly, we affirm the
  property award in its entirerty.  

       Husband next contends that the court abused its discretion in
  rejecting his proposed parent-child contact schedule.  Husband argues that
  the best interests of the child and the parties would be  better served by
  his parent-child contact schedule.  On the record before us, we conclude
  the family  court did not abuse its discretion in adopting wife's parenting
  schedule.  Throughout the child's life,  mother has been the child's
  primary caregiver.  During the one year before the final order, the child 
  lived with mother during the week and father on the weekends.  The child
  has adjusted well to this  schedule.  The alternating holiday and vacation
  schedule maximizes the child's contact with both  parents.  That the court
  referenced the cause of the marital breakup does not render its decision 
  erroneous. 

       Contrary to husband's claim, the final order does not conflict with
  the parties' partial final  stipulation.  The stipulation concedes that the
  parties were unable to reach an agreement regarding a  parent-child contact
  schedule but anticipated that they would share the child on an equal basis. 
  The  final order comes close to the anticipated goal and allows flexibility
  in the summer schedule to allow  for changes in the head-of-household
  filing status.  

       Finally, husband argues that the maintenance award exceeds wife's
  reasonable needs, the  amount and duration of the maintenance award is
  excessive and the trial court erred in not awarding  child support.  While
  the family court has broad discretion in determining whether and in what 
  amount to award maintenance, Bell v. Bell, 162 Vt. 192, 197-198, 643 A.2d 846, 850 (1994), in a  decision we hand down today, Gulian v. Gulian, No.
  99-207 (Vt. Nov. 9, 2001), we  find that where  the family court does not
  clearly delineate between maintenance and child support awards, we cannot 
  review its findings.  Gulian, slip op. at 4.  In Gulian, the family court
  awarded maintenance and did  not award child support, assuming "at least
  some portion of the maintenance award would be  available to pay for the
  children's expenses."  Id.  We reversed and remanded the family court's 
  award, noting "maintenance and child support are separate awards that serve
  different purposes."  Id.  at 4, fn.1.  

       In the present case, the family court awarded no child support but
  awarded spousal support of  $3000 a month until 2006, and $2500 a month
  until 2012.  The family court reasoned, "[the] amount  of spousal
  maintenance and absence of child support was arrived at after due
  consideration of the  equal amount of time that Devin will spend with each
  party, the income tax consequences of both  alimony and child support and
  the Defendant's serious fault for the break-up of the marriage."   In 
  fashioning its maintenance award, the court considered those factors it
  would consider when  deviating from the child support guidelines, including
  the financial resources of each parent, the  standard of living enjoyed
  while the family was intact, and the emotional and educational needs of 
  the child.  See 15 V.S.A. § 659(a).   As in Gulian the court, in effect,
  combined child support and  maintenance.  This was error.  See Gulian, slip
  op. at 5.  

 

       Moreover, the maintenance award in this case was set to expire at the
  child's age of maturity,  suggesting that "maintenance would have to be
  used as child support, rather than awarding an  independent amount for that
  purpose."  Id. at 8.  As Gulian points out, where a maintenance award  
  will be reduced or halted at "the happening of a contingency related to the
  children, namely their  reaching majority," that award could be considered
  child support for tax purposes, id. at 8 (citing 26  U.S.C. §71(c)(2)), - a
  result certainly inconsistent with the family court's intentions in this
  case, to  minimize the tax consequences of the award.  In any event,
  husband is correct that the trial court's  failure to make a separate child
  support award makes it impossible to determine the amount actually 
  intended for maintenance, and whether there is a reasonable basis to
  support it.  See Gulian, slip op.  at 5.  

       Affirmed in part and remanded for the calculation of maintenance and
  child support awards.  



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