2016 VT 89
By Elizabeth Kruska
When we’re talking about divorces, Vermont is an equitable distribution state. If people split up and can’t figure out how to divide their property, the court is not necessarily going to cut the property in half and give each side 50%. Sometimes that happens—or comes close. The court is charged with the duty of considering various issues in a marriage, and splitting up property so it’s fair to each side.
For example, let’s suppose people get married and divorce after one year. Let’s also suppose Wife is the heiress to the O Henry! candy bar fortune and Husband is the Got No Green Lantern. Wife is obviously better situated, financially-speaking than husband. Husband can ask for half of the O Henry! Candy bar fortune, but he probably isn’t going to get it, because the court is going to say that isn’t equitable. They’d only been married a year, and the money didn’t arise as a result of something within the marriage; giving him half would not make sense. Even though Wife came in to the marriage with lots of money, and even though the marital estate includes all property, regardless of its origin, the court is going to look at a non-exhaustive list of statutory factors when it comes time to divvy up the property.
In this case, Husband and Wife had twin sons and were married for fourteen years before separating. They owned a house, some cars, some bank accounts, and some other miscellaneous personal property that people normally have. They also had a large cash settlement that Husband received as a result of an employment discrimination lawsuit that happened during the marriage. Husband also expected a settlement from an unrelated personal injury lawsuit. Unfortunately, most of the money from the discrimination suit was spent, possibly indiscriminately (depending who you ask), including the portion that the family had set aside to cover the related tax burden. As a result, they had a significant tax debt going in to the divorce.
At the trial, Wife described the marriage as a bad situation, including issues with infidelity, alcohol use, and other relationship stressors. Wife described Husband’s spending as out of control, especially after he got the lawsuit proceeds. Husband disputed Wife’s characterization of the marriage and many of the facts she said. He said that he spent some of the settlement money on home improvement projects, and the other things he bought, he bought with her blessing.
The court looked at the evidence, and considered it in terms of the twelve non-exhaustive statutory factors it’s supposed to consider when dividing property. First, it awarded the house to Wife. She was currently living in the house with the kids, and the court found that the most important piece was to keep the kids stable. The court also gave Wife the debt associated with the house, her car, her bank account, and her own personal possessions. The court gave Husband $8000 in savings, his Chevelle, the proceeds he expected from his upcoming personal injury settlement, his own bank accounts, and all the tax debt from the discrimination lawsuit settlement.
Husband appeals, and SCOV affirms. Husband raises three issues.
First, he says the court’s property award was not equitable. SCOV disagrees. SCOV reviews property awards for abuse of discretion. So, suppose in my Seinfeld example in the second paragraph, the trial court awarded the entire O Henry! candy bar fortune to the Got No Green Lantern. Unless there were some seriously detailed and significant facts to back this up, the court is going to find that the trial court abused its discretion in distributing the property.
Husband says that the award was disproportionate, and also that the court left him in a precarious financial position. SCOV looks at the evidence and disagrees. First of all, the court is supposed to consider twelve statutory factors when making its decision. The trial court found that Husband’s actions were largely to blame for the disintegration of the marriage. Between that and making sure the children had stability, the trial court fashioned an award that gave Wife the home—but also the mortgage on the home—and some other belongings while balancing that against an award to Husband. SCOV finds that the trial court made appropriate findings to back up what it did, and leaves this alone.
SCOV points out also that although there are twelve factors the trial court is to consider, they are not exhaustive. So, Husband tries to argue that now he is in a precarious financial position because of the award. That used to be a factor for the court to consider, but now it’s not. But, since the statutory factors are not exhaustive, the court can certainly think about that in making its property division. At any rate here, SCOV concludes that Husband received a fair settlement in what he received.
When the courts look at these factors, different courts can give each factor the weight it feels is deserved. Here, the most important thing was stability for the kids. But in another case, that might not be as important as something else. Trial courts don’t have to say how much weight one factor or another is given. They just have to be able to fit factual findings to the factors they do use.
Husband also argues that the trial court made lots of incorrect factual findings, and that they constitute reversible error. His argument is that because the trial court found facts incorrectly, it cast a bad light on him, which made the property division inequitable. He also tries to make an argument that, sure, he spent the lawsuit money, but it was his money to spend. SCOV, in a footnote, reminds the reader that property, regardless of how or when acquired, is owned wholly by both parties.
SCOV disagrees with Husband. As always, the Supreme Court is not going to get involved in finding whether certain witnesses were credible or not. But what they do look at is whether the factual findings were supported by credible evidence. Here, SCOV was able to determine that the trial court’s findings were backed up by evidence in the record. With the lawsuit money, for example, Husband spent it all, so the trial court found it was reasonable for him to be awarded the attendant tax liability.
Last, Husband argues that the trial judge was biased against him and made inappropriate remarks about him during a chambers conference. Husband had the opportunity, and the obligation, to raise the issue of judicial bias on the record but did not. Because it was not raised below, it was not properly preserved for appeal.