Connie Holmes v. Victor Allen Holmes ( 2011 )

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2011-005
MAY TERM, 2011
Connie Holmes } APPEALED FROM:
}
}
v. } Superior Court, Washington Unit,
} Family Division
}
Victor Allen Holmes } DOCKET NO. 193-6-10 Wndm
Trial Judge: Brian J. Grearson
In the above-entitled cause, the Clerk will enter:
Husband appeals a final divorce order, challenging the court’s award of spousal
maintenance to wife. On appeal, husband argues that the court’s order is not supported by
sufficient findings. We affirm.
In April 2010, wife filed a complaint for relief from abuse (RFA). In June 2010, the
parties stipulated to a final RFA order, and wife filed for divorce. On November 9, 2010, the
court held a final hearing on the divorce. The parties stipulated to division of personal property.
They owned no real estate and neither one had a pension so the focus of the hearing was on
spousal maintenance.
The court issued a written order and found the following facts. During the parties’
marriage, husband worked as a long-distance truck driver earning as much as $800 per week.
Shortly after the parties’ separation, husband had an accident while working and lost his job. He
has been unable to obtain employment as a truck driver since that time. At the time of the final
hearing, he was employed full-time at a farm earning $10 per hour. Wife has a commercial
driver’s license and during the marriage worked with husband as a team driver and at other part-
time jobs. She currently has a position with Cabot earning $16.25 per hour, but is limited to
1000 hours. She lives with her daughter “because she had to give up an apartment in order to
afford her car.” The court granted wife spousal maintenance with the following explanation:
Based on [husband’s] higher level of income, his increased
earning ability as compared to [wife], the standard of living
established during the marriage when he was the primary or sole
source of income, the court orders [husband] to pay spousal
maintenance of $150.00 per week for a period of five (5) years,
beginning November 15, 2010. Maintenance will terminate upon
remarriage or cohabitation of [wife].
Husband appeals.
Maintenance is designed to “ameliorate the financial impact of divorce.” Watson v.
Watson, 2003 VT 80, ¶ 4, 175 Vt. 622 (mem.). Pursuant to statute, maintenance may be awarded
if the court finds that the requesting spouse lacks sufficient income or assets to meet her
reasonable needs and is unable to support herself through employment at the standard of living
enjoyed during the marriage. 15 V.S.A. § 752(a). If this threshold requirement is met, then the
court considers the factors in § 752(b) in setting the amount and duration of maintenance, which
the court has broad discretion in determining. Kasser v. Kasser, 2006 VT 2, ¶ 38, 179 Vt. 259.
Husband first argues that there are insufficient findings to show that wife lacks sufficient
resources to meet her reasonable needs. Husband notes that the only indication of wife’s ability
to meet her current needs is the information about her part-time position and that she has been
forced to move in with her daughter. Husband posits that even accepting that her only means of
income is her job at Cabot, that job still yields her $16,250 a year—an amount, according to him,
that is 50% above the poverty guideline for one person.
There is no merit to husband’s suggestion that wife is not entitled to maintenance because
her income is above the poverty line. As this Court has explained in the past, the question of
“reasonable needs should not be looked at in relation to subsistence,” but rather involves a
“critical comparison . . . to the standard of living established during the marriage.” Strauss v.
Strauss, 160 Vt. 335, 338 (1993). The relevant inquiry under the statute is whether wife has
sufficient income to meet her reasonable needs and is able support herself at the standard of
living established during the marriage. Bancroft v. Bancroft, 154 Vt. 442, 445 (1990).
The court’s conclusion that wife was unable to do so in this case is supported by the
findings as made. This was a marriage, and a divorce, involving limited means. Overall, the
court’s findings are clear enough that the parties’ married standard of living was modest, that
wife worked part-time as a team driver with husband and continues to work part-time now, that
husband was the primary earner and continues to work full-time albeit at a reduced wage, that
wife’s post-separation standard of living is less than what it was, that husband earns more than
wife and that, by a small degree, is potentially better off than she. The court was not required to
make precise findings on the exact standard of living or detail wife’s current expenses. The fact
that wife’s income is comparatively less than what the parties enjoyed during their marriage and
that she was forced to move in with her daughter because she could not afford both a car and an
apartment is sufficient to demonstrate that wife was unable to meet her reasonable needs and was
living below the standard established during the marriage. Thus, there was an adequate basis to
award maintenance.
Husband next argues that the court’s analysis under § 752(b) was flawed because the
court failed to make findings on all of the statutory factors. The court is not required, however,
to engage in such an analysis. “As long as the family court’s order reflects that it considered the
relevant factors under § 752(b), the court is not required to issue specific findings on each factor,
and the party challenging the award on appeal must show there is no reasonable basis for it.”
Watson, 2003 VT 80, ¶ 4 (quotation omitted). The award in this case had a reasonable basis in
that the court addressed several relevant factors. The court based the maintenance award on
husband’s status as the primary source of income during the marriage, husband’s higher level of
income and increased earning ability as compared to wife, and the standard of living enjoyed
during the marriage. These are all valid considerations under § 752(b) and support the court’s
maintenance award. Although length of marriage is a statutory factor, that the court did not
mention it, or others, is of no moment absent some reason expressed by husband that the factors
omitted should have made a difference to the outcome.
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Husband contends that the court should have considered additional factors and that some
of the court’s analysis is not supported by the evidence. For example, he hypothesizes that wife
could have obtained additional employment or reduced her expenses. These assertions are
essentially challenges to the adequacy and completeness of the court’s findings, which is beyond
the scope of our review in this case because husband did not order a transcript. Without a
transcript, we must assume that the court’s findings are supported by the evidence. V.R.A.P.
10(b)(2) (“If the appellant intends to urge on appeal that a finding or conclusion is unsupported
by the evidence or is contrary to the evidence, the appellant shall include in the record a
transcript of all evidence relevant such finding or conclusion.”); see In re S.B.L., 150 Vt. 294,
307 (1988) (explaining that appellant bears consequences of failing to order transcript and
without transcript Supreme Court assumes that evidence supports trial court’s findings). In any
event, husband points to no evidence below tending to support his contentions that wife could
earn more or that he could not, or that wife’s current lifestyle exceeds that of her married
situation, so no prejudice appears from the court’s lack of more specific findings of fact.
Finally, we address husband’s motion to strike an argument from wife’s brief pertaining
to an interim maintenance award granted in conjunction with the RFA order. In the final divorce
order, the court ordered husband to pay the obligation, but noted that husband could seek
modification based on his trucking accident and subsequent decline in income. In her appellee’s
brief, wife requests that this Court vacate that portion of the trial court’s order that allowed
husband to seek modification of the maintenance obligation. Because wife did not file a cross-
appeal in this case, we grant husband’s motion and do not reach this argument. See Huddleston
v. Univ. of Vt., 168 Vt. 249, 256 (1998) (noting that this Court lacks jurisdiction to reach merits
of claim advanced by appellee who did not cross appeal).
Affirmed.
BY THE COURT:
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Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
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Brian L. Burgess, Associate Justice
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