Mizzi v. Mizzi

Mizzi v. Mizzi (2004-256); 179 Vt. 555; 889 A.2d 753

2005 VT 120

[Filed 24-Oct-2005]

                                 ENTRY ORDER

                                 2005 VT 120

                      SUPREME COURT DOCKET NO. 2004-256

                               JUNE TERM, 2005

  Sheila Mizzi	                     }	APPEALED FROM:
                                       }
                                       }
       v.	                           }	Franklin Family Court
                                       }	
  	                                 }
  Brian J. Mizzi	                     }	DOCKET NO. 118-4-02 Frdm

                                          Trial Judge: Stephen B. Martin

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

       ¶  1.  Husband Brian J. Mizzi appeals from the family court's final
  divorce order dividing  the parties' marital property.  Husband contends
  that the court abused its discretion by: (1) failing to consider wife
  Sheila Mizzi's interest in property owned jointly with her mother as part
  of the marital property; (2) awarding possession of the marital home to
  wife; (3) dividing the marital property inequitably; and (4) allowing a
  relief-from-abuse order to remain in effect against husband until the end
  of the nisi period.  We affirm.

       ¶  2.  The parties were married in Tampa, Florida on April 20, 1990. 
  They had met in 1986 at a cat show, where husband was an exhibitor and
  wife, who also owned and operated a dog-grooming business, was a judge. 
  Husband moved to Vermont in May 1994 and began construction of a
  three-bedroom marital residence on a 150-acre parcel of land in Fairfax,
  Vermont, which the parties owned as tenants by the entirety.  Wife stayed
  in Florida until the summer of 1995, when she sold her business and joined
  husband in Vermont.

       ¶  3.  In addition to the Fairfax property, each of the parties held
  a one-third share in a piece of lakeshore property in Odessa, Florida, in
  which wife's mother held the other one-third share. Wife, her sister, and
  her mother were also listed as joint tenants on the deeds of four other
  properties in Florida and a house in St. Albans, Vermont.  The parties
  stipulated to the division of most of their personal property, none of
  which is specifically at issue in this appeal.
   
       ¶  4.  The parties separated in September 2000, although they both
  continued to live at the marital home.  Husband moved out of the marital
  home on March 11, 2002, after a dispute that resulted in a
  relief-from-abuse order against husband.  On April 28, 2004, the family
  court issued an order granting the parties' divorce and dividing the
  marital property.  The court awarded possession of the marital home to
  wife, requiring wife to pay husband $190,000 for his share of the home. 
  The court also decreed each party one third of the Odessa, Florida
  property, ordering that the property be sold and the proceeds divided
  equally among husband, wife, and wife's mother.  The court refused to award
  husband any portion of the property owned jointly by wife and her mother. 
  Finally, the court refused to terminate the relief-from-abuse order
  immediately, instead leaving it in effect through the ninety-day nisi
  period, which ended July 1, 2004.  Husband then appealed.

       ¶  5.  The property settlement section of Vermont's domestic
  relations law, 15 V.S.A. § 751, requires equitable division of marital
  property upon divorce, and provides twelve non-exclusive criteria to guide
  the family court in making this determination, including the length of the
  marriage, the role of each spouse in acquiring the property, the
  opportunity of each spouse for future earnings, and "the respective merits
  of the parties."  15 V.S.A. § 751(b).  We have recognized, however, that
  "[d]ividing property to achieve an equitable result is not a science
  susceptible to hard and fast rules."  Slade v. Slade, 2005 VT 39, ¶ 9, 16
  Vt. L. Wk. 120, 872 A.2d 367 (mem.).  Thus, Vermont family courts have wide
  discretion in the division of marital property, and we will uphold a family
  court's decision absent a showing of abuse or withholding of this
  discretion.  Weaver v. Weaver, 173 Vt. 512, 513, 790 A.2d 1125, 1127 (2001)
  (mem.).

       ¶  6.  Husband first contends that the court abused its discretion
  in dividing the marital property by failing to consider wife's interest in
  the properties she held jointly with her sister and her mother.  Husband
  maintains that because wife is listed on the deeds to these properties as a
  joint tenant, one-third of each property should have been included for
  equitable division by the court.  Husband relies on Chilkott v. Chilkott
  and Lynch v. Lynch for the proposition that any form of property, no matter
  how or when it is acquired by either or both of the spouses, is subject to
  equitable division.  See Chilkott, 158 Vt. 193, 195, 607 A.2d 883, 884
  (1992) (holding that future interest in irrevocable trust was marital
  property subject to division); Lynch, 147 Vt. 574, 577, 522 A.2d 234,
  235-36 (1987) (per curiam) (upholding family court's distribution of
  marital residence that was held in trust).  Husband is correct that the
  court had jurisdiction over wife's share of the properties she owned with
  her mother.  15 V.S.A. § 751(a) ("All property owned by either or both of
  the parties, however and whenever acquired, shall be subject to the
  jurisdiction of the court.").  The statute, however, instructs courts not
  to rely on title alone in dividing marital property.  Id. ("Title to the
  property . . . shall be immaterial . . . .").  Here, the court determined
  that while wife's name was listed with those of her sister and mother on
  each of the deeds, wife's mother was the actual owner of the properties in
  question.  The court found that wife's mother had placed the names of her
  daughters on the deeds to avoid probate, and that both daughters understood
  that wife's mother retained "full authority to maintain, sell, lease or
  otherwise dispose of" the properties as she saw fit.  The court did not
  abuse its discretion by looking behind the deeds and refusing to award any
  portion of these properties to husband.  In fact, while the court would
  have been justified in ignoring wife's mother's properties for the purposes
  of equitable division, it took their value into account indirectly in its
  award of the marital home, stating that it "gave consideration to the fact
  that [wife's] mother will probably give [wife] financial assistance to pay
  [husband] his interest in the marital home."
        
       ¶  7.  Husband next argues that the court abused its discretion by
  awarding possession of the marital home to wife, and that the court lacked
  sufficient evidence to make the factual findings underlying this award. 
  Factual findings will be overturned only if they are clearly erroneous. 
  Trahnstrom v. Trahnstrom, 171 Vt. 507, 508, 756 A.2d 1242, 1244 (2000)
  (mem.).  The court valued the home at $340,000 to $360,000.  The court
  awarded possession of the home to wife, but required wife to pay $190,000
  to husband for his share, stating that husband "shall have a $190,000 lien
  on the property until the balance has been paid in full."  In reaching this
  decision, the court weighed each party's contribution to the home's
  purchase and construction, as well as evidence of each party's interest in
  physical possession of the home.  The court found that both parties had
  contributed to the home's purchase and construction, with husband
  contributing funds and physical labor, and wife contributing financial
  support by remaining in Florida and operating her business.  The court also
  found that wife's interest in remaining in the home was greater than
  husband's, noting that while wife had consistently asked for physical
  possession of the home, husband had initially asked to have it sold.  The
  parties gave conflicting testimony about both the value of their
  contributions and the sincerity of their own and each other's desire for
  physical possession of the marital home. The record contains sufficient
  evidence to support each of the court's findings with respect to these
  issues.  Even had husband not initially asked to have the property sold,
  the court could reasonably award physical possession to only one of the
  parties, and it was not an abuse of discretion for the court to find wife's
  interest in physical possession more compelling after hearing the parties'
  testimony.  See Begins v. Begins, 168 Vt. 298, 301, 721 A.2d 469, 471
  (1998) ("Given its unique position to assess the credibility of witnesses
  and weigh the evidence, we will not set aside the court's findings if
  supported by the evidence, nor its conclusions if supported by the
  findings."). 

       ¶  8.  Husband also argues that the court abused its discretion by
  dividing the marital property inequitably.  In some respects, this
  contention echoes husband's previous argument that the court erred in
  refusing to include wife's mother's properties for the purposes of
  equitable division.  Had the court included wife's share of wife's mother's
  properties in the marital property, husband's award would have totaled
  approximately one-third of the property.  Without including wife's mother's
  properties in the calculation, husband received greater than one-half of
  the property.  Husband also contends, however, that the court's refusal to
  find in his favor on several statutory factors resulted in an inequitable
  division of property.  Specifically, husband argues that the court should
  have awarded him a larger share of the marital property based on wife's
  greater opportunity for future earnings and her greater responsibility for
  the failure of the marriage.  The guidelines for property division in the
  statute allow the family court to consider both of these factors.  15
  V.S.A. § 751(b) (listing twelve factors the court may consider, "including
  but not limited to . . . (8) the opportunity of each for future acquisition
  of capital assets and income . . . and (12) the respective merits of the
  parties").

        
       ¶  9.  With respect to the parties' future earnings, husband again
  refers to wife's mother's wealth.  The court considered this wealth in
  making its determination, stating that wife "has employable skills and, in
  time, she will be receiving a sizable inheritance from her mother." 
  Nevertheless, the court found that the parties' opportunities for future
  acquisition of wealth favored neither husband nor wife.  The court weighed
  the prospect of wife's inheritance against husband's greater current income
  and the debt wife would incur to buy out husband's share of the marital
  home.  The court also found that, based on the age of each party, husband
  could be expected to have eleven more years than wife to acquire income
  prior to retirement.  Given the inherent uncertainty in the timing and
  amount of wife's inheritance from her mother, it was not an abuse of
  discretion for the court to determine that neither party had a greater
  opportunity for future earnings.

       ¶  10.  The court was equally justified in determining that the final
  statutory factor, "the respective merits of the parties," favored neither
  husband nor wife.  Husband argues that wife bears greater responsibility
  for the failure of the marriage.  He bases this argument primarily on
  wife's adulterous affair, and on evidence that she lied to the police about
  certain details of the violent dispute on March 11, 2002 that resulted in
  the relief-from-abuse order and husband's removal from the marital home. 
  The court may consider extramarital affairs and other conduct during the
  marriage in making property awards.  Weaver, 173 Vt. at 513, 790 A.2d  at
  1128.  It is not clear, however, that the parties' conduct here should
  entitle husband to a greater share of the marital property.  The record
  shows that both parties engaged in extramarital affairs, and the court
  declined to consider either party's infidelity in making the property
  award.  In its analysis of the March 11, 2002 dispute, the court found
  that, after hearing all the evidence, it remained "difficult if not
  impossible" to determine what had happened that night.  Under such
  circumstances, it was not an abuse of the court's discretion to decide that
  the parties' respective merits favored neither husband nor wife.

       ¶  11.  Finally, husband argues that the court abused its discretion
  by refusing to lift the relief-from-abuse order against him until the end
  of the nisi period.  As the nisi period has ended, this contention is moot.

       Affirmed.  

                                       BY THE COURT:



                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice
     
                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.), 
                                       Specially Assigned