Sunday, May 24, 2015

Speculation and Semantics

MacCormack v. MacCormack, 2015 VT 64

By Amy Davis

While I am counting this current blog as a constructive way to procrastinate (unlike watching Dexter for the fourth time), this will be the last of my witticisms and criticisms until post-bar exam. So, read up and/or wish me luck!

Dad is ticked about the trial court’s award of PRR to Mom, as well as the trial court’s calculation and division of marital assets. Also, the trial court applied a hypothetical real-estate commission calculation to the property division. What the hell? More math? Mom is ticked about the PCC order not achieving the stated goal. Spoiler alert: everything gets affirmed except the hypo-real-estate stuffs.

This was a rocket-docket Kim Kardashian marriage: short lived and unentertaining. Mom and Dad met in June 2006, started dating, and then married in July 2008. Despite agreeing there was a “lack of intimacy” during the marriage, they managed to make a baby, born in December 2009. (Free sex-ed lesson: reproducing requires some form of intimacy . . . or a turkey baster).

Mom filed for divorce in June 2011; trial court issued a temporary order that awarded Mom and Dad shared PRR and 50/50 child contact. After four hearings spanning from August to March, the trial court granted a divorce in July 2013.

Reviewing the judgment, the SCOV looks to see if the trial court adequately explained the underlying rationale for its decision. The judgment stands unless the trial court’s discretion is erroneously exercised, based on unfounded considerations, or is clearly unreasonable.

After laying out the guidelines for PRR, the SCOV mentions that while the trial court doesn’t have to make findings in a specific form, it’s super nice when the trial court structures its findings and conclusions to each factor. The trial court happened to do so in this case.

In going through each best interest of the child factor, the trial court found that most of the statutory factors favored neither parent. The parents differed in their opinions on medical treatment, but both could meet the child’s needs. The remaining factors either reflected on both parents positively, or both parents negatively. You win some, you lose some.

Determining PRR in this case was a close call, butdrum roll pleasethe trial court found for Mom. But why? This is greatdad completed a four-year-law-office clerkship that qualified him to sit for the Vermont bar exam (seeI told you this is relevant to bar study). But he never did, so he was never able to practice law (one of those “I’m not a lawyer but I did stay at a Holiday Inn last night” situations). However, Dad told Mom that he was a fully-qualified attorney during the time they were together. Mom never learned of his professional status until they started divorce proceedings.

During the proceedings, Mom offered their wedding announcement into evidence that read, “[Father] is a tax attorney. He received . . . his law degree from Western New England College, School of Law.” None of that is true, and Dad never tried to correct that announcement.

I heard somewhere that now that I have my J.D., I can call myself a “lawyer” but not an “attorney.” I did not think there was a difference, but Dad seems to think so: he claims he may not be a fully-qualified “attorney” but he can still call himself a “lawyer.” I was hoping for the SCOV to make some distinction between the two, but it merely says it’s all semantics. So, for now, just call me Amy.

The SCOV goes on to say this case isn’t about whether he can call himself an “attorney,” but whether he’s a big liar. The trial court went with the latterthrowing out words like “mistaken impression” and “ongoing deception” and “lied.”

Finding no clear error in the trial court’s findings, the Court turns to whether the conclusions and judgment were correct as a matter of law. The trial court questioned Dad’s ability to provide guidance to his child, and his judgment and trustworthiness when addressing the child’s future developmental needs. For that, the trial court found for Mom, and the SCOV now affirms.

Now to the property division riddled with math and numbers I will do my best to glaze over. Marital assets relevant here include a home jointly owned by the parties, a house Dad owns with his aunt, Mom’s TIAA CREF retirement fund, and Dad’s retirement account. Dad appeals the trial court’s use of a hypothetical real-estate commission in allocating the marital home (he actually wins this one), the method of retirement asset distribution, and the offset for anticipated inheritance of his aunt’s home.

The only thing that really matters here is the hypothetical real estate commission. While law schools and Barbri love hypos, the SCOV does not. When the trial court split up the property, it gave the marital home to Mom subject to her decision to either sell it or refinance. If she sold, the trial court gave Dad his initial equity plus adjusted equity in excess of the value beyond the initial purchase price, or below the value, depending on whatever it sold for. But, if Mom wanted to stay in the house (because, let’s face it, moving sucks), she could refinance, and Dad’s equity would be reduced by 6% of the agreed upon fair market valuethe real estate commission (plus the costs of refinancing).

The SCOV’s problem with this is that there is no sale in a refinance, so including a sales commission is illogical, so it rejects this particular hypothetical real estate commission. Note that this is not an outright rejection of all hypothetical commissions. In addition, the hypo as applied to this case, would result in an unequal overall property award, it has the effect of revaluing a marital asset, and is too speculative. Therefore, the hypo is out.

As far as auntie’s house goes, the trial court balanced Mom’s TIAA CREF retirement account against Dad’s potential inheritance, and examined the factors in 15 V.S.A. § 751(b). Furthermore, the parties stipulated that the trial court could determine the weight given to the home when determining allocation of the marital assets. The SCOV finds no abuse of discretion and affirms this part of the ruling. So Dad walks away with a little more money in the end, but not much.

Mom also cross-appeals the trial court’s PCC order. The trial court attempted to draft a schedule for the two to share time with their child and minimize the child’s time away from either parent. Mom challenges the trial court’s decision, but the SCOV quickly dismisses as the PCC order is within the trial court’s wide discretion of considering evidence creating the visitation schedule.

Here’s hoping Mom and Dad’s next marriages last longer than Britney Spears’s 55-hour-long nuptials.

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