Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2016-154
NOVEMBER TERM, 2016
Katherine Roberts } APPEALED FROM:
}
} Superior Court, Lamoille Unit,
v. } Family Division
}
}
Mark Roberts } DOCKET NO. 132-7-14 Ledm
Trial Judge: Dennis R. Pearson
In the above-entitled cause, the Clerk will enter:
Wife appeals from a divorce judgment of the superior court, family division. She contends
the court: (1) failed to properly settle and allocate the marital debts; (2) erred in awarding certain
real property to wife; and (3) abused its discretion in awarding husband attorney’s fees. We affirm.
The facts may be summarized as follows. The parties began their relationship in 1978,
were married in Rhode Island in 1986, and relocated to Vermont 1992, purchasing their marital
home in Hyde Park in 1993. The parties raised their children, who are now grown, in the Hyde
Park home, which they still own. Both parties were fifty-five years old at the time of the final
divorce hearing.
When the children were still young, wife began working in Rhode Island for several entities
owned by her family, returning each week to Vermont for several days. Husband was the primary
care provider for the children and worked at a series of relatively low-paying jobs. Since 2014, he
has worked for the Vermont Department of Motor Vehicles.
In 2014, wife learned that husband had been involved in a series of extra-marital affairs for
a number of years, which precipitated the parties’ separation. Wife relocated to an apartment in
Rhode Island owned by her father, where she resides with an adult daughter. Husband left the
Hyde Park residence and lives with another woman.
The court found that the Hyde Park residence has a fair market value of $120,000 and a
mortgage debt of $138,000 and thus has no apparent equity. The parties also own a camp property
that they purchased with money borrowed from wife’s family, secured by a note. The court found
that there was nominal or no equity in the camp, although it observed that a discharge of the note
held by wife’s family could result in some equity.
The court noted that the circumstances of both properties and other marital debts was
complicated by wife’s Chapter 13 bankruptcy plan, which lists both properties as assets for which
wife was making monthly payments. Other debts that she was paying off under the Chapter 13
plan included federal and Rhode Island income tax debt incurred during the marriage and vehicle
payments. The court found that the total amount payable under the 60-month bankruptcy plan was
about $73,000. Both parties also have individual debt on college loans taken for their adult
children, which is not dischargeable in bankruptcy; husband’s loan balance was about $45,000 and
wife’s was about $104,000.
The parties’ assets are not substantial. They include an older pickup truck and trailer and
several other vehicles, tools used by husband, small retirement accounts, and social security
benefits when the parties become eligible. Husband’s net monthly income was about $2056, and
his reported expenses were about $2800; wife’s net income after expenses and the bankruptcy
payment was about $3648.
The court noted that wife waived any claim for maintenance and husband preferred an
award of property in lieu of maintenance. Observing that both the residence and camp were part
of the bankruptcy plan proposed by wife and that wife’s family held a note on the camp, the court
determined that it was reasonable to award both properties to wife. Among the factors that the
court expressly considered were husband’s infidelity, which militated against any substantial
award to him of the marital assets (of which there were few) balanced against his much lower
income, much less favorable employment prospects, and much lower anticipated social security
benefits, as well as wife’s potential financial benefit from her father’s estate and the potential to
realize some equity from the camp.
The court found that value of the assets awarded to husband, which included the tools,
pickup truck and trailer, a second vehicle, and his retirement accounts, totaled $33,000. Those
awarded to wife, which included the marital home and camp, jewelry, a vehicle, and her retirement
accounts, totaled about $15,000. The debts assigned to wife included the balance on the college
loan obligation and her credit card account, which totaled about $132,000. The debts to husband
were the balance on his student loan obligation and credit card, which totaled about $55,000. The
court denied wife’s subsequent motion to alter or amend the judgment. This appeal by wife
followed.
Wife challenges several aspects of the court’s property division. Our review is deferential.
“Trial courts have wide discretion in the disposition of property upon divorce.” Roberts v. Roberts,
146 Vt. 498, 499 (1986). The division of property “is not an exact science and does not always
lend itself to a precise mathematical formula; all that is required is that such distribution be
equitable.” Victor v. Victor, 142 Vt. 126, 130 (1982). We will not disturb the court’s property
disposition absent a showing that its discretion was abused, withheld, or exercised on clearly
untenable grounds. Roberts, 146 Vt. at 499.
Assessed in light of these standards, we find no basis to disturb the judgment. Wife
contends the trial court failed to address or fairly allocate her payment obligation under the
bankruptcy plan. The record shows, however, that the court specifically awarded the principal
assets and corollary obligations covered under the bankruptcy plan—the marital home and camp,
the tax debt, and car payment —to wife, and explained its reasons for doing so, given wife’s
development of the bankruptcy plan and her superior financial situation. Moreover, in denying
wife’s motion to amend the judgment, the court specifically rejected this claim, explaining that it
had considered all of the parties’ debts that were covered under the plan. Accordingly, we find no
error.
Wife also contends the court’s reasons for the distribution were “flawed” in a number of
specific respects. She claims the court erred in finding that husband’s employment situation was
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less favorable than wife’s, but the evidence of the parties’ disparate earnings over many years
supported the finding. She asserts the court “failed to acknowledge” the amount of debt that could
not be discharged in bankruptcy, particularly the student loans, but the record shows the court was
specifically aware of this liability and the fact that it could not be discharged. She contends the
court’s consideration of the potential benefit from her father’s estate was unduly speculative, but
such potential benefits may be considered by a court in determining a party’s opportunity for
acquisition of future assets and income, so long as there is competent evidence of the value of the
potential benefits, and the evidence here was sufficient to support the court’s consideration. See
15 V.S.A. § 751(b)(8)(A); Billings v. Billings, 2011 VT 116, ¶ 23, 190 Vt. 487.
In addition, wife contends the court “fail[ed] to take into account” the fact that she would
need to replace the health insurance coverage that she had been receiving under husband’s
employment with the State, but the court specifically recognized that this benefit would end ninety
days after the judgment. Relying on her testimony that the disparity in the amount of each party’s
student loan obligation was “half premised” on who filled out the paperwork, wife contends the
court erred in finding that it was based in part on their disparate incomes. The court could
reasonably find, however, that it was wife who controlled and determined the amount of each
party’s obligation, and the court could also reasonably infer that the amount of their respective
loans was based in part on their ability to pay.
Wife also contends the court’s finding that she may realize some equity from the camp was
unduly speculative, but the court could reasonably infer that the unsecured debt on the camp would
ultimately be discharged and that wife would eventually benefit from the remaining equity.
Finally, wife suggests that the court abused its discretion in awarding her the home and camp
because she currently lives and works in Rhode Island. The court acknowledged the potential
inconvenience for wife but found, as noted, that other factors supported the award. We find no
abuse of discretion.
Lastly, wife contends the court erred in awarding husband $525 in attorney’s fees incurred
in responding to the motion to alter or amend the judgment. Husband sought $1500, and the court
found that some reimbursement to husband was fair in light of the parties’ disparate incomes and
the motion’s lack of merit. A trial court’s decision to award attorney’s fees in this context “is an
equitable one” and lies within the court’s sound discretion. Willey v. Willey, 2006 VT 106, ¶ 26,
180 Vt. 421. Wife has not shown that the award in this case was an abuse of discretion.
Accordingly, we discern no basis to disturb the judgment.
Affirmed.
BY THE COURT:
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Paul L. Reiber, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Harold E. Eaton, Jr., Associate Justice
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