Wade v. Wade

Wade v. Wade  (2004-045); 178 Vt. 189; 878 A.2d 303

2005 VT 72

[Filed 01-Jul-2005]



  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.


                                 2005 VT 72

                                No. 2004-045


  Susan Smith Wade                                Supreme Court

                                                  On Appeal from
       v.                                         Washington Family Court


  Mason D. Wade                                   February Term, 2005


  Geoffrey W. Crawford, J.

  Brian K. Valentine of Schoenberg & Associates, Burlington, for
  Plaintiff-Appellee.

  Lauren S. Kolitch, Waitsfield, for Defendant-Appellant.

  PRESENT:   Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and Allen, C.J.
             (Ret.),  Specially Assigned

       ¶  1.   ALLEN, C.J. (Ret.), Specially Assigned.  In this appeal from a
  final judgment of divorce, husband challenges the family court's exclusion
  from the marital estate money given to the parties' minor child in
  accordance with the Vermont Uniform Gift to Minors Act (VUGMA), 14 V.S.A.
  §§ 3201-3209.  Husband also contests the property division as inequitable
  because the court awarded nearly ninety percent of the marital property to
  wife.  We affirm.
   
       ¶  2.   Husband and wife were married in 1991, had one child together,
  and separated in 2002.  The parties, their daughter, and husband's son from
  a prior relationship lived the Town of Waitsfield in a home that wife
  purchased before the parties married.  Since 1985, wife used part of the
  home to run the Sunshine Montessori School, Inc., a nursery school she
  founded and continues to operate.  Husband has a landscaping business. 
  During the marriage husband also took on seasonal work in the restaurant,
  construction, and ski industries.  Over the last four years, husband earned
  between $13,000 and $23,000 annually.  Wife's income from the Sunshine
  School averaged $21,824 in 2000-2002.  

       ¶  3.   In 1996, wife received a series of gifts from her mother.  She
  was given title to her mother's home, which wife rented out until 2002 when
  she sold the property.  Wife also received $22,000 in cash and put $40,000
  from her mother into a VUGMA account for the parties' minor daughter.  The
  $22,000 gift to wife went into an account in her name only.  Wife
  subsequently exhausted the money in the account by using it to pay for
  various family expenses.  At the time of the divorce hearing, the VUGMA
  account had a $25,000 balance.  Wife testified that she spent approximately
  $18,000 from the VUGMA account for family expenses, including her own
  medical expenses.  

       ¶  4.   After wife sold the home her mother gave her in 2002, the
  parties each received $10,000 from the proceeds.  The remaining proceeds of
  $59,000 were placed into escrow pending  distribution in the divorce
  proceeding.  After her mother died, wife used some of her inheritance to
  purchase a twenty-nine foot sailboat and a catamaran for the family. 
  Husband spent time repairing and maintaining the boats for the family, and
  used his carpentry and other handyman skills to maintain and improve the
  parties' residence.  The family also owned a camper, and husband held a
  half interest in a seasonal camp in Rochester, Vermont.  
   
       ¶  5.   Throughout the marriage, wife paid the mortgage on the marital
  residence and most of the household expenses.  Husband paid half of the
  household utilities and charged many of his own expenses, and those of his
  landscaping business, to credit cards.  At the time the parties separated,
  husband had over $23,000 in personal and business credit card debt.  Wife's
  credit card debt was a fraction of husband's.  After separating, wife
  remained in the marital home, and husband moved into a friend's home where
  he acts as caretaker.  

       ¶  6.   Wife filed for divorce in October 2002.  She sought primary
  custody of the parties' daughter and most of the parties' property,
  although wife agreed that husband and their daughter should have liberal
  contact.  Husband wanted a shared parenting arrangement-one week every
  other week-and asked the court to split their property roughly fifty-fifty. 
  Both parties hired expert witnesses to testify about the value of the
  Sunshine School.  It was undisputed that husband's business had no value.

       ¶  7.   The court issued a written order following a hearing in
  December 2003.  Wife received approximately ninety percent of the marital
  property, including the parties' home and all of its equity, the catamaran,
  the camper, and the escrowed proceeds from the sale of her mother's home. 
  The court awarded husband the sailboat, $10,000 from the sale proceeds that
  he had already received, his interest in the Rochester camp, and his tools. 
  Crediting wife's expert witness, the court found that the Sunshine School,
  while valuable to wife personally, had no market value.  The court also
  concluded that the VUGMA account was not subject to distribution because it
  was the property of the parties' daughter.  As to parental responsibilities
  for the minor child, the court adopted the arrangement set forth in the
  parties' stipulated temporary order, which allowed the child to spend
  overnights with husband every Wednesday and every other weekend from Friday
  until Monday morning.  
   
       ¶  8.   In support of the property award, the court explained that
  wife had lived in the parties' home since 1985, six years before the
  parties' married.  Wife paid the mortgage and property taxes.  She also
  paid for the parties' two boats and contributed all of her income to other
  household expenses.  The court acknowledged that what money husband earned
  was spent primarily on the household, but it noted that husband "never
  earned much in any year."  The court found that husband had not "followed a
  conventional career; instead he has enjoyed the freedom of working on a
  seasonal basis and taking time when he wishes to work on his own business." 
  The court found that husband could earn more money working a full-time job
  in construction or some other business if he chose.  

       ¶  9.   In his appeal, husband first claims that the court should have
  distributed the VUGMA account because it was part of the marital estate. He
  argues that wife never executed any trust documents to establish an
  irrevocable account for their daughter, and that she used the money for her
  own purposes.  Therefore, husband contends, the funds in the account are
  marital property subject to distribution in the divorce.  The family
  court's fact findings on the VUGMA account will stand on appeal if they are
  supported by any credible evidence in the record.  Hayden v. Hayden, 2003
  VT 97, ¶ 14, 176 Vt. 52, 838 A.2d 59.  We will uphold the court's legal
  conclusions if supported by the findings.  Payrits v. Payrits, 171 Vt. 50, 
  53, 757 A.2d 469, 472 (2000).
   
       ¶  10.   Contrary to husband's claim, establishing a VUGMA does not
  require the execution of trust documents to make the gift irrevocable.  The
  VUGMA's purpose is to provide a simple procedure for gifting property to
  minors.  See In re Marriage of Hendricks, 681 N.E.2d 777, 781 (Ind. Ct.
  App. 1997) (construing Indiana's Uniform Gift to Minor's Act).  For cash
  gifts, the Act requires only that the donor pay or deliver the money "to a
  broker or a bank for credit to an account in the name of the donor, another
  adult person, an adult member of the minor's family, a guardian of the
  minor or a bank with trust powers, followed, in substance, by the words:
  'as custodian for (name of minor) under the Vermont Gifts to Minors Act.' " 
  14 V.S.A. § 3202(a)(3).  Once made according to statutory procedures, the
  gift is irrevocable, and the child possesses an indefeasible interest in
  the property held in the VUGMA account.  Id. § 3203(a); In re Marriage of
  Hendricks, 681 N.E.2d  at 781; In re Marriage of Agostinelli, 620 N.E.2d 1215, 1220-21 (Ill. App. Ct. 1993).  The account's custodian has authority
  under the Act to spend "so much of or all of the custodial property as the
  custodian deems advisable for the support, maintenance, education and
  benefit of the minor."  14 V.S.A. § 3204(b).  Because the funds in a VUGMA
  are the child's property, they are not part of the marital estate subject
  to equitable distribution in a divorce proceeding.  In re Marriage of
  Agostinelli, 620 N.E.2d  at 1221.  

       ¶  11.   To prevail on his first claim, therefore, husband must
  demonstrate that the record lacks evidence supporting the court's finding
  that the account was created in accordance with the VUGMA. Because the
  record supports the court's finding, husband's claim must fail.  The
  $40,000 check that wife's mother wrote to fund the account was admitted
  into evidence.  The check was payable to an investment firm and not to
  wife.  On the check, wife's mother wrote the child's name and indicated
  that it was for a VUGMA account.  Wife also introduced the account
  statements she received as custodian of the VUGMA account. The statements
  identify the account as a VUGMA account, they name wife as the account's
  custodian, and they identify the parties' child as the account holder. 
  That evidence, in addition to wife's testimony about the account, provide
  ample support for the court's findings on this issue.  
   
       ¶  12.   Wife's alleged misuse of the funds in the account does not
  transform the child's property into the property of her parents.  To the
  extent that wife violated her obligations as custodian on the account, the
  VUGMA provides a different remedy in a different forum.  The probate court,
  not the family court, has jurisdiction over VUGMA accounts, 4 V.S.A. § 311;
  14 V.S.A. § 3201(4), and it may require the custodian to provide an
  accounting of all deposits to, and expenditures from, the account.  14
  V.S.A. § 3208. The probate court may also remove and replace the custodian
  for cause, id. § 3207(d), (e), and may hold the custodian liable for losses
  to the account resulting from intentional wrongdoing, gross negligence or
  actions taken in bad faith.  Id. § 3205(e).  The family court correctly
  decided to exclude the account from the marital estate because it was not
  marital property, and the court had no jurisdiction over its management in
  light of the governing statutes. 

       ¶  13.   Husband next argues that the court awarded a disproportionate
  share of the marital property to wife by ignoring some of the statutory
  factors in 15 V.S.A. § 751 and giving too much weight to others.  Section
  751 of Title 15 directs the family court to divide the marital estate in an
  equitable manner after considering several factors:
  
       (1)   the length of the marriage;
       (2)   the age and health of the parties;
       (3)   the occupation, source and amount of income of each of
       the parties;
       (4)   vocational skills and employability;
       (5)   the contribution by one spouse to the education,
       training, or increased earning power of the other;
       (6)   the value of all property interests, liabilities, and
       needs of each party;
       (7)   whether the property settlement is in lieu of or in
       addition to maintenance;
       (8)   the opportunity of each for future acquisition of
       capital assets and income;
       (9)   the desirability of awarding the family home or the
       right to live there for reasonable periods to the spouse
       having custody of the children;
       (10)   the party through whom the property was acquired;
       (11)   the contribution of each spouse in the acquisition,
       preservation, and depreciation or appreciation in value of
       the respective estates, including the nonmonetary
       contribution of a spouse as a homemaker; and
       (12)   the respective merits of the parties.

  15 V.S.A. § 751(b).  The family court has broad discretion when analyzing
  and weighing the statutory factors in light of the record evidence.  See
  Lalumiere v. Lalumiere, 149 Vt. 469, 471, 544 A.2d 1170, 1172 (1988)
  (explaining that family court has wide discretion in equitably dividing
  marital property and noting that court's task is not an "exact science"). 
  When fashioning an equitable award, the court must explain the underlying
  rationale for its decision, Cabot v. Cabot, 166 Vt. 485, 500, 697 A.2d 644,
  654 (1997), which we will not disturb absent a showing that the court
  abused its discretion.  Weaver v. Weaver, 173 Vt. 512, 513, 790 A.2d 1125,
  1127 (2001) (mem.). 

       ¶  14.   Husband asserts that the property division lacks equity
  because the court did not consider the length of the marriage; husband's
  lack of a college education and his contributions to wife's business;
  husband's credit card debt; the lack of maintenance for husband where wife
  earns more than him; husband's inability to acquire capital assets or
  additional income; husband's sweat equity in maintaining and improving the
  marital home and the rental property acquired from wife's mother; and the
  lack of a proper home for their daughter when she spends time with husband. 
  We find no merit to husband's contention because the text of the court's
  decision reflects that it considered all of those factors.  
   
       ¶  15.   The court found that the parties were married for twelve
  years.  It determined that in light of all of the factors, the length of
  the marriage did not weigh in favor of either party.  The court
  acknowledged husband's lack of a college degree, but it found that husband
  could increase his annual income by taking a full-time position in the
  construction industry or in another industry in the Mad River Valley. 
  Husband is healthy and his age-forty-eight-years old at the time of the
  divorce-did not preclude him from acquiring his own home or other assets in
  the future.  On the issue of maintenance, husband did not request
  maintenance in lieu of property, and cannot now fault the family court for
  not considering this factor.  
  
       ¶  16.   As for husband's suggestion that the property award left him
  without an ability to obtain a suitable residence where his daughter can
  stay when she is in his care, there is no factor in § 751 that directly
  addresses this issue.  Under § 751(b)(9), the court must consider the
  "desirability of awarding the family home . . . to the spouse having
  custody of the children."  15 V.S.A. § 751(b)(9).  The court considered
  that factor when it determined that the child's best interests were served
  by allowing her to remain in the marital residence-the only home the child
  has ever known-under wife's primary care. 
   
       ¶  17.   According to the family court, the statutory factors that
  weighed most heavily in its decision were numbers (10) and (11): through
  whom the assets were acquired, and which party contributed more to their
  preservation.  Id. § 751(b)(10) & (11).  All of the assets in this case
  came through wife, either because she acquired them before the marriage or
  purchased them after marriage with money wife's mother provided.  All of
  wife's income, as well as her inheritance, went to support the family and
  the family's recreational interests.  She paid the mortgage and property
  taxes on the marital home.  Husband's financial contribution to the
  marriage was recognized through the $10,000 he received from the sale of
  wife's mother's home and the sailboat the court awarded husband.  The court
  declined to allocate the parties' debt because it found that husband's
  larger share of credit card debt was due to the relatively low income he
  earned by choice.  In light of wife's substantial monetary contribution to
  the family's expenses, the court determined that it would be unfair to
  saddle her with a portion of husband's personal and business debt.
  
       ¶  18.   The dissent would ignore the family court's discretion in
  this case and find the court's division of marital property "facially
  inequitable" because of the ninety-ten split in a twelve-year marriage. 
  Neither of the two cases that the dissent relies on provides any support
  for this position.  In Dreves v. Dreves, 160 Vt. 330, 628 A.2d 558 (1993),
  we reversed, based on lack of sufficient findings, a property division in a
  six-year marriage that gave the wife approximately twelve percent of the
  marital property.  We never suggested that such an award was facially
  invalid, however.  Rather, we found inadequate the family court's bare
  explanation that most of the assets in the brief marriage were originally
  attributable to the husband, given the court's findings that (1) the wife
  left her home state and her employment to join her husband; (2) she
  withdrew from the workforce, with the husband's approval if not desire, and
  served as a homemaker during the marriage; (3) her earning capacity was
  considerably less than the husband's; and (4) she would have the expense of
  finding a suitable place to live.  Id. at 334, 628 A.2d  at 560.  We
  concluded that, given these facts, a remand was necessary to get a more
  detailed explanation of why there was such a great disparity in the
  property division.  Id. at 335, 628 A.2d  at 561.
   
       ¶  19.   Similarly, in Harris v. Harris, 162 Vt. 174, 647 A.2d 309
  (1994), we reversed a property division in a seven-year marriage that gave
  the wife just eight percent of the marital assets.  Noting that the only
  tenable explanation for the great disparity in the property division was
  that most of the assets had come from the paternal grandfather, we pointed
  out that (1) the grandfather had given the husband land to build a home in
  anticipation of the parties' marriage; (2) both parties had worked on the
  home; (3) the home was financed by a mortgage that had been gradually
  reduced throughout a marriage in which the wife withdrew from the workforce
  and served as a homemaker to care for the children while the husband gained
  earning power; and (4) at the time of the divorce, the wife, who needed to
  find suitable housing for her and her daughter, was just reentering the
  workforce at minimum wage after a seven-year absence.  Id. at 183-84, 647 A.2d  at 315.
  
       ¶  20.   These cases do not hold that a large disparity in a property
  division is facially inequitable.  Rather, at most, they stand for the
  proposition that we will carefully examine the evidence and findings to
  assure that the family court made adequate findings and acted within its
  wide discretion in awarding one spouse the vast majority of the marital
  assets.  Notwithstanding the dissent's attempts to compare this case to
  Dreves and Harris, the evidence and findings here, which reasonably support
  the family court's decision, are starkly different from the evidence and
  findings in those cases.  The major assets in this relatively small marital
  estate were the family home and funds that came from wife's mother.  The
  court gave the vast majority of these assets to wife because (1) wife had
  owned and lived in the marital home for six years before the parties
  married; (2) wife had paid most of the home expenses during the marriage,
  including all of the mortgage payments and property taxes; and (3) wife had
  contributed nearly all of her income, including much of her inheritance, to
  household needs and common family interests.  The court acknowledged
  husband's sweat equity in the marital home, but concluded that the home
  should be awarded to wife in its entirety, given that wife had owned it for
  many years before the marriage and had contributed a disproportionate
  amount of finances to its upkeep throughout the marriage.
   
       ¶  21.   Further, notwithstanding the dissent's claims to the
  contrary, husband cannot be considered a displaced homemaker, as were the
  wives in Dreves and Harris.  There is no evidence, no findings, nor even
  any claim by husband, that he left the workforce to serve as a homemaker,
  or that he was the primary care giver during the marriage.  To the
  contrary, the family court found that husband was a skilled carpenter and
  landscaper who chose a lifestyle that provided little income but allowed
  him to work on his own terms.  In so finding, the court was not
  discriminating against husband, as the dissent suggests, but rather
  explaining why it was equitable to award the vast majority of the marital
  assets to wife, considering that this was not a long-term marriage and that
  she brought most of those assets into the marriage.  We find this
  explanation reasonable and within the court's wide discretion in allocating
  marital property.
  
       ¶  22.   Moreover, we expressly reject the dissent's claim that the
  family court failed to give husband sufficient financial resources to allow
  him to obtain and maintain a place to live so that he can share physical
  responsibilities for his daughter.  There are no findings nor any evidence
  in the record suggesting that father is not capable of obtaining housing
  that would allow him to share physical responsibilities for the parties'
  daughter.  In any event, husband has not even challenged the family court's
  order on parental rights and responsibilities.
  
       ¶  23.   We recognize that wife received approximately ninety percent
  of the parties' assets.  Had the family court failed to explain in detail
  the reasons for the facially disproportionate property distribution, the
  outcome of this case would likely be different.  But the family court
  carefully explained why it weighed factors (10) and (11) more heavily in
  reaching its decision.  As trier of fact, the family court was in the best
  position to assess the merits of the parties' contentions, and its decision
  addresses the relevant statutory factors.  Therefore, we cannot say that
  the court abused its discretion in fashioning the property award in this
  case.
   
       ¶  24.   Husband next argues that the court erred by finding that the
  Sunshine School had no market value.  He asserts that the business was an
  ongoing concern, it provided wife a reasonable income, and its gross sales
  and net profit were experiencing an upward trend at the time of the divorce
  proceeding.  Again, we review the court's finding on this issue for clear
  error.  Hayden, 2003 VT 97, ¶ 14.  So long as the court's findings are
  grounded in the evidence, even if substantial contrary evidence exists, the
  findings will stand on appeal. 
  
       ¶  25.   The Sunshine School's value was the subject of competing
  expert testimony at trial.  Wife's expert testified that the school lacked
  excess cash flow and thus had no market value.  Husband's expert criticized
  the methodology wife's expert used, but conceded on cross examination that
  his opinion might change if the assumptions he made about enrollment and
  the base salary for wife were different.  The court found that the business
  has value to wife because it provides her with a modest livelihood and
  personal fulfillment.  But, the court noted, wife's average income from the
  school over the last three years was less than the average salary for a
  pre-school teacher.  That fact, combined with the school's location in
  wife's home, reduced the market value of the business to zero.  The court
  found that "[a]ny purchaser of the business who paid a reasonable
  rent-estimated by [husband's] business appraiser at $8,000 per year-and
  hired a pre-school teacher to replace [wife] would lose money even if the
  sales price was $1.00."  Husband has not demonstrated that the court's
  decision on this issue lacks support in the record.  
   
       ¶  26.   Husband's last claim relates to the court's findings on the
  value of the marital residence in 1991 when the parties married.  The
  home's 1991 value is relevant only to its appreciation during the marriage
  and what share of that appreciation should go to husband.  As husband
  conceded at oral argument, however, this claim is moot if the Court affirms
  the overall property award, which we have done.  Accordingly, we decline to
  address this issue because it has no bearing on the outcome of husband's
  appeal.
  
       Affirmed.
  
  FOR THE COURT:



  _______________________________________
  Chief Justice (Ret.), Specially Assigned

-----------------------------------------------------------------------------
                                 Dissenting


       ¶  27.   SKOGLUND, J., dissenting.  "The purpose of discretion is not
  to foster inconsistency."  Klein v. Klein, 150 Vt. 466, 473, 555 A.2d 382,
  386 (1988).  Thus, different judges addressing discretionary matters in
  similar cases ought to arrive at similar results.  Our prior cases suggest
  that the lopsided award in this case would never be affirmed if it had been
  wife and not husband who received the paltry ten percent share of the
  parties' marital estate.  Here, both spouses earned less through their
  labors than their potential would permit, but the trial court faulted only
  husband for his failure to follow a "conventional career" path.  Perhaps
  more importantly, the court's award leaves husband with questionable
  financial ability to find and maintain suitable housing for himself and his
  daughter after the divorce, even though the court found it in the child's
  best interests that parental rights and responsibilities be shared by the
  parties.  To me, the inequity in the trial court's award under the facts
  here, and in light of our prior decisions, is apparent on its face.  I
  must, therefore, dissent.(FN1)
   
       ¶  28.   I do not disagree with the majority that the family court
  enjoys broad discretion to determine what is equitable when dividing a
  divorcing couple's property. But the family court's exercise of discretion
  must, in the end, achieve an equitable result.  In a twelve-year-long
  marriage, a 90/10 split of marital property is facially inequitable.  See
  Harris v. Harris, 162 Vt. 174, 647 A.2d 309 (1994) (reversing judgment
  awarding wife only eight to twelve percent of marital property in marriage
  of seven years); Dreves v. Dreves, 160 Vt. 330, 628 A.2d 558 (1993)
  (reversing judgment awarding wife eighteen percent, compared to husband's
  eighty-two percent, of marital estate in six-year marriage).  Such a great
  disparity in the property awarded each spouse in a marriage of this length
  demands that this Court examine the equities more closely to assure that
  the result is just.  Harris, 162 Vt. at 184, 647 A.2d  at 316 (citing
  Daitchman v. Daitchman, 145 Vt. 145, 150, 483 A.2d 270, 273 (1984)).  
   
       ¶  29.   Such a close examination convinces me that the equities here
  are not just and, as in similar cases, would support reversal.  As the
  majority acknowledges, the family court weighed two statutory factors more
  heavily than others in its decision: (1) the party through whom the
  property was acquired, and (2) the contributions of each spouse to the
  maintenance and preservation of the parties' property.  15 V.S.A. §
  751(b)(10), (11).  Reasoning that those factors were the most important in
  this case, the family court gave no weight to the length of the marriage,
  and it discounted husband's financial and in-kind contributions to the
  household and to the maintenance of valuable marital property.  Id. §
  751(b)(1), (11).  The family court's findings, and the record supporting
  them, indicate that husband contributed to the maintenance of the marital
  home and the rental property gifted by wife's mother.  He performed
  renovations that permitted wife to run the Sunshine School from her home. 
  The family court's decision notes those contributions, but gives them
  virtually no weight in its decision.  That was reversible error in my view.

       ¶  30.   In Dreves v. Dreves, the Court reversed a similar award,
  which, in contrast to this case, gave most (eighty percent) of the property
  to husband rather than to wife.  The family court's only reasons for the
  disproportionate award in Dreves were the short length of the marriage, six
  years, and the fact that virtually all of the parties' assets were
  attributable to husband.  160 Vt. at 334, 628 A.2d  at 560.  The Court
  reversed.  Holding that the family court did not adequately explain the
  facially inequitable judgment, the Court chastised the family court for not
  weighing more heavily wife's lower earning capacity and her need to find
  alternative living arrangements after the divorce.  Id.  

       ¶  31.   Similarly, in Harris v. Harris, the Court reversed an award
  that gave wife only eight to twelve percent of the parties' property.  The
  parties in Harris were married for only seven years, five years fewer than
  the parties in this case. Like husband here, Mrs. Harris brought no
  property to the marriage.  And, like wife and her mother in this case, Mr.
  Harris and his family were the source of most of the parties' property.  On
  appeal, the Court held that the property's origin alone is not enough to
  warrant a one-sided award when other factors were present.  162 Vt. at 183,
  647 A.2d  at 315.  For example, the Court explained, Mrs. Harris worked as a
  homemaker during the seven-year marriage, but she was given no credit for
  that contribution to the family.  Id.  
   
       ¶  32.   This case is not meaningfully different from cases like
  Harris and Dreves  involving a displaced homemaker where the spouses decide
  to allocate their time and labor in a manner that allows one spouse to
  pursue a career.  Like a homemaker, husband spent his time caring for the
  parties' minor daughter and making in-kind contributions to the family's
  welfare. The family court found that during the marriage, husband
  contributed most of his earnings to pay a share of the parties' household
  expenses, even though it also found that he never earned very much.  The
  court found that husband had to charge some of the family's expenses to his
  credit cards because of his low earnings.  Husband invested sweat equity to
  improve the marital home for use as a school, thereby contributing to
  wife's professional development.  Husband spent both money and time working
  on the sailboat wife purchased with funds that her mother gave her. 
  Husband's active participation in caring for the parties' minor daughter
  was the reason the court ordered the shared parenting arrangement.  Husband
  has limited education in comparison to wife, and he suffers from a learning
  disability.  At nearly fifty-years old, husband has a work history
  consisting mostly of seasonal labor.  While the court found husband
  "receives compensation for his work on the house through the $10,000 he has
  already received from the sale of [wife's] mother's house," $10,000 for
  twelve years of contributions to the marriage and family cannot seriously
  be considered equitable.  Husband's contributions to the family's
  well-being cannot have been properly factored into the property award. 

       ¶  33.   The only meaningful differences between the circumstances of
  this case and the circumstances leading to the Court's reversal of the
  property division for the homemakers in Dreves and Harris are: (1) the
  parties here were married for nearly twice as long as the couples in Dreves
  and Harris, and (2) the family court in this case shortchanged husband and
  not wife.  The first difference should presumably weigh in favor of giving
  husband a greater share of the parties' property under the theory that the
  longer the marriage, the more entitlement each spouse has in the other's
  property.  The second difference is one that concerns me. 
   
       ¶  34.   Husband and wife together chose a lifestyle in which both
  parties earned less than their potential.  The family court viewed
  husband's lifestyle and under-earnings differently from wife's without any
  rational explanation, however.  The court's negative view of husband's
  lifestyle is most apparent in the court's discussion of the parties'
  education and employment histories.  The court explained that husband
  decided not to pursue a  "conventional career," rather he worked on a
  "seasonal  basis and taking time when he wishe[d] to work on his own
  business."  It denied husband a share of the $128,000 of equity in the
  marital home because, in the court's view, husband's career choices "d[id]
  not entitle him to a share of the equity."  The family court observed that
  husband could make more money by working full time doing construction or
  some other work in the Mad River Valley.  It made no findings, however, on
  how much more money husband could earn in light of his age, limited
  education, dyslexia, and seasonal work experience.  

       ¶  35.   In contrast, the family court characterized wife's employment
  and earning decisions in a positive light.  The court found that wife has a
  college degree in psychology and arts and is a certified Montessori
  teacher.  The court found that on average, a pre-school teacher earns more
  than wife does running her own school at home.  It also found that wife's
  business has no value, and, in fact, would lose money if she were to
  relocate the school to another building.  The court explained that wife's
  chosen path provided her with a living and that it "fulfills her personal
  interest in childhood education."  The court fails to explain why it
  treated these similarly situated parties differently, and no rational
  reason to do so is apparent from the record. 
   
       ¶  36.   The award here also fails as a sustainable exercise of
  discretion because it gives husband shared parental rights and
  responsibilities but does not give him sufficient financial resources to
  obtain and maintain a place to live so he can share physical
  responsibilities for his daughter.  Cf. Harris, 162 Vt. at 183-84, 647 A.2d 
  at 315 (reversing a property award in part because the family court failed
  to consider wife's need to find a suitable place to live for herself and
  her daughter after the divorce).  The family court found that husband's
  living arrangements are fine for him, but not for the child.  The court was
  well aware of the shared parenting arrangement that called for husband to
  care for the child nearly forty percent of the time.  The family court
  appears to have overlooked husband's concern about finding a suitable place
  to live with his daughter after the divorce.  On appeal, the majority
  rejects husband's argument on this point, explaining only that § 751(b)
  neither forbids nor requires the family court to consider husband's
  post-divorce living circumstances.  Ante, ¶ 16.  When divorcing parties and
  the family court agree that it is in the child's best interests to share
  parental rights and responsibilities, and the court finds that one parent
  does not live in conditions suitable for that child, equity demands that,
  to the extent possible, the family court apportion the marital property so
  that both parents can achieve stable and suitable housing for themselves
  and their child after the divorce.  That principle is especially applicable
  where, as here, there is sufficient property to make possible appropriate
  living arrangements for both parties.  
   
       ¶  37.   I do not favor giving undue scrutiny to the discretionary
  decisions our trial courts are responsible for making, decisions they make
  hundreds of times each day.  And, I believe that the party seeking reversal
  of a family court judgment under the abuse-of-discretion standard has a
  very high hurdle to overcome.  Here, husband has plainly overcome that
  hurdle.  The family court's decision in this case places far too much
  weight on wife's financial contributions to the marital estate where other
  factors were present, just as the family court did in Harris and Dreves. 
  Moreover, it is apparent that the ninety/ten split in wife's favor arises
  in great part from the family court's negative view of husband's
  under-earning, a view the court notably did not hold about wife's similar
  history of under-earning.  Finally, the award leaves the parties' daughter
  with no suitable place to live when father has physical responsibility for
  her under the shared parenting arrangement, an arrangement that all agree
  is in the child's best interests.  For those reasons, the property division
  in this case is inequitable and I would reverse the judgment.  I am
  authorized to state that Justice Johnson joins in this dissent.



  _________________________________
  Associate Justice 

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

FN1.  I do not disagree with the Court's analysis of husband's claim
  regarding his daughter's Uniform Gift to Minors Act account.  My dissent
  relates solely to the glaring inequity in the family court's property
  apportionment given its findings and its award of parental rights and
  responsibilities.