Mark White v. Denise White ( 2014 )

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2013-056
OCTOBER TERM, 2014
Mark A. White } APPEALED FROM:
}
} Superior Court, Franklin Unit,
v. } Family Division
}
Denise C. White } DOCKET NO. 335-10-11 Frdm
Trial Judge: Linda Levitt
In the above-entitled cause, the Clerk will enter:
Husband appeals the maintenance and property division decisions incorporated in the
court’s final divorce order. On appeal, husband argues that the court failed to make sufficient
findings. We affirm.
The basic facts are undisputed. The parties were married in 1984 and separated in 2011.
Wife began working for the City of St. Albans in 1996. At the time of the final hearing, wife
was working part time. Wife had previously worked full time, but when she was reduced to part
time, she claimed she was unable to get another similarly paid position. She worked a second
part-time job for a few months, but quit because she could not handle the position. Husband
began working for a company doing building maintenance in 1993 and has been there ever since.
The court held a hearing in August 2012. The main marital assets included the marital
residence and some retirement accounts. The parties agreed that husband would receive the
marital home. At the outset, the parties agreed that their main source of disagreement was
spousal maintenance for wife. Wife requested maintenance of $800 a month for fourteen years,
and husband opposed paying any maintenance. The parties agreed to present evidence solely on
that issue with the hope that the court’s decision on maintenance would help the parties to agree
on distribution of property. At the close of the initial hearing, the court made findings on the
record and granted wife maintenance.1 The court found that spousal maintenance was
appropriate given the length of the marriage, the parties’ relative incomes and wife’s need for
support. The court found that husband earned between $4500 and $5000 a month at his full-time
employment and wife earned $2000 a month working part time. The court further found that it
was not likely wife could find or maintain employment at her previous income level and granted
wife’s request for maintenance of $800 a month for fourteen years.
Following the decision, the parties negotiated the property settlement but were unable to
resolve the issue, and the hearing resumed in October 2012. At the beginning of the October
hearing, husband’s attorney explained that the parties had stipulated to the value of the house and
1
The court’s findings, made on the record, were not recorded due to human error.
During the appellate process, the parties agreed on a statement of the findings. V.R.A.P. 10(d)
(describing process for creating statement of evidence when transcript is unavailable). The
findings recounted herein are derived from that agreed statement.
retirement accounts, but disagreed on the value of the personal property. At the hearing and
before the close of the evidence, the parties announced that they had reached an agreement on
the issues, and wife’s attorney offered to prepare an order. Wife filed a proposed order on
December 4, 2012, with a letter from wife’s attorney stating that the parties were unable to agree
on a written order and setting forth the areas of dispute between the parties. The letter stated that
the parties were not in agreement on: the date maintenance should commence; the date husband
should assume payment obligations for payments related to the marital home; the date by which
husband should make the property settlement payment; and the ownership of certain personal
property items. On December 19, 2012, husband’s attorney filed a response to the proposed
order, setting forth his position on the disputed items. The court issued a final order the same
day, which essentially adopted wife’s order with one change requested by husband. Husband
subsequently filed a motion to reconsider, which the court denied.
On appeal, husband first argues that the court’s maintenance award is not supported by
sufficient findings. Spousal maintenance may be awarded if the court finds that one spouse lacks
sufficient funds to provide for her reasonable needs and is unable to support herself at the
standard of living established during the marriage. 15 V.S.A. § 752(a); Gravel v. Gravel, 2009
VT 77, ¶ 23, 186 Vt. 250. The statute contains seven criteria to guide the court in determining
the amount and duration of an award. 15 V.S.A. § 752(b). The court has broad discretion in
awarding maintenance, and an award will be reversed “only if there is no reasonable basis to
support it.” Gravel, 2009 VT 77, ¶ 23.
Husband argues that the award of spousal maintenance to wife was erroneous because the
court did not consider all of the relevant statutory factors. Husband contends the court failed to
consider “the property apportioned to the party,” 15 V.S.A. § 752(b)(1), because the court
awarded maintenance prior to any property division decision. Husband’s argument ignores the
fact that he specifically agreed that the court should decide the issue of maintenance prior to
considering property division. Given husband’s express agreement to this procedure, he has
waived any ability to challenge that on appeal.
Husband also asserts that the court made no findings on his ability to meet his own needs
or wife’s ability to support herself without the maintenance. The court has broad discretion in
considering the factors, and we will reverse only where there is “no reasonable basis” to support
the court’s decision. Chaker v. Chaker, 155 Vt. 20, 25 (1990). The parties’ abilities to meet
their needs were addressed by the court. The court found that husband was employed full time
with a monthly income of $4500 to $5000 while wife had only part-time employment and made
$2000 a month. The court further found that wife could not easily obtain employment at a
greater income level and had need for support. These findings are sufficient to support the
court’s decision.
Husband also argues that the court did not make sufficient findings to support its
property-division decision, despite his request for findings. Pursuant to statute, the family court
is required to “equitably divide and assign the property.” 15 V.S.A. § 751(a). “The trial court
has broad discretion to consider the statutory factors and fashion an appropriate order, but it must
provide a clear statement as to what was decided and why.” Turner v. Turner, 2004 VT 5, ¶ 7,
176 Vt. 588 (mem.).
Husband presents his challenge to the court’s property division without acknowledging
that much of the court’s order was a product of the parties’ stipulation. While the parties did not
have a written agreement, they certainly agreed at the hearing to the fundamental terms of their
settlement. They also both submitted proposed orders to the court that contained identical terms
on almost all substantive matters.
2
Both parties’ proposed orders contained the following identical elements: an award of the
marital home to husband and a requirement for husband to make a payment of $153,222 to wife;
an award to both parties of their respective pension plans and retirement accounts; an identical
enumerated list of personal property items awarded to each party; and an award of maintenance
to wife of $800 for fourteen years. The items of disagreement were the date by which the
settlement amount should be paid, the date spousal maintenance should commence and a list of
personal property to be returned by wife to husband. The court signed wife’s version of the
order, but altered it in one regard requested by husband—to give him 180, instead of 120, days to
make the settlement payment before interest would accrue.
On appeal, husband is not challenging any of the disputed items, but claims the court
failed to make sufficient findings on the money wife spent during the separation period. During
the second hearing day, husband argued that the money wife spent in a joint account while the
divorce was pending should be considered in the property division. Husband states on appeal
that he requested findings on whether this money should be considered in the property division,
and the court failed to make findings. This argument fails for two reasons. First, the court did
make findings concerning the funds. The court stated that the money was used to pay for regular
expenses, such as the mortgage, car payments, groceries, taxes and insurance, and therefore
should not be credited against wife in the property division.
Second, this occurred prior to husband’s agreement on the property division. We have
held that the question of whether a husband and wife will be bound by an oral settlement
agreement depends on the intent of the parties, which is a question of fact. Willey v. Willey,
2006 VT 106, ¶ 11, 180 Vt. 421. In determining this intent, there are four relevant factors: a
party’s express reservation not to be bound until the agreement is in writing; a party’s partial
performance; the extent to which all substantive terms are agreed upon; and the nature of the
agreement. Id. ¶ 12. The facts here demonstrate an intent to be bound. Neither party made a
reservation at the hearing. There was partial performance in that after the hearing in October
2012, the parties both submitted proposed orders.2 Further, as outlined above, the substantive
terms were agreed upon. In light of this agreement, the court did not err in excluding the money
from the property settlement.
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Harold E. Eaton, Jr., Associate Justice
2
Wife contends that there was partial performance because she executed a quit claim
deed, she moved out of the marital residence, and husband moved in. This evidence is not part
of the record on appeal, however, and therefore we do not consider it in our analysis.
3