Molleur v. Molleur

Burgess, J.,

¶ 30. dissenting in part. While the family division enjoys broad discretion in dividing marital property, the court’s findings must still support its conclusions. In this case, its findings that wife invested little or nothing in the domestic enterprise generally, that she contributed virtually nothing economically to the marital estate, and lent little support in child rearing, do not justify the windfall of 75% of the marital portion of husband’s military pension to wife. Because the parties’ respective marital contributions weigh heavily on the equities in this case, and with a comment about the related maintenance award under these circumstances, I respectfully dissent from affirming the court’s lopsided, but unsupported, pension award.

¶ 31. It is not disputed that wife added little to the marriage’s commonwealth. She earned no real money; the court found that wife had “no substantial work history or experience” and that husband was “the primary, if not sole source of all family income.” Wife’s claims of nonmonetary contribution as a homemaker were unproven; the court concluded only that her claims were “questionable.” In contrast, the court specifically found that husband, in addition to breadwinning, “was called on many times, and throughout the parties’ time together to become involved with the children’s day-to-day care and supervision.” As to the twenty years of marriage overall, the court found this to be superficial and but a marriage “on paper.”

¶ 32. Compared to the findings and conclusions of the trial court, the majority’s characterizations of this marriage as long term, and of the court’s marital property distribution as warranted by her homemaking, shared child rearing and occasional employment, are wrong. Ante, ¶ 16. According to the trial court, the length of the marriage was a matter of form over substance. The trial court did not, contrary to the majority’s perception, credit wife as a homemaker. Also at odds with the majority’s somewhat ambiguous recitation that the parties raised their children “together,” id., were the trial court’s findings that wife “did not in fact fit, or easily fulfill” the role of caretaker and that *218husband had to frequently fill in for wife’s failure to carry her share of parenting. Nor did the court explain its generous pension distribution in terms of wife’s negligible outside earnings.

¶ 33. The majority suggests the court found that husband “tacitly accepted” wife’s decision not to work, ante, ¶ 11, but this is also inaccurate. At best, the court’s findings were equivocal. What the court actually said was that “[wife’s] lack of employment during most years of this marriage was essentially a mutual choice, by default and inaction” and that wife’s failure to work resulted from “the parties’ choice (by attrition, if not positive decision).” Absent actual agreement or enforceable alternatives, “default and inaction” cannot really constitute a “mutual choice.” Finding no positive decision shared by the parties, neither the court nor the majority can describe any erosion by attrition of husband’s stated preference that wife work. Neither the court nor the majority posit what other option husband would exercise. Absent the power to command otherwise, how does one spouse “choose” for the other not to work or assume a fair share of domestic chores when the other refuses to do so? Shall the productive spouse impose a stricture like Captain John Smith’s at colonial Jamestown that the noncontributing member of the enterprise may not eat unless he or she first works? The majoritys rule compels a spouse to divorce an idle partner sooner rather than later, lest the nonparticipating spouse acquire a substantial portion of the marital estate simply by being married, nominally, for a long time to the other.

¶ 34. Such a result might be justified in circumstances of illness or disability, but those are not presented here. The court noted that wife struggled with alcohol, but wife admits to no alcohol problem. Wife suffers from depression as well, but there are no findings that she was unable to work, incapable of working sooner or unresponsive to treatment. According to the court, wife invested virtually nothing in the marriage’s domestic, economic, or parental efforts. The court recognized that husband tolerated a “tough slog” and assumed “much more of the weight and responsibility to keep the family relatively intact, and minimally functioning, until the children had become adults.” Wife had little or no sweat-equity in the marriage to redeem.

¶ 35. Wife may not have been, as observed by the court, “at fault” in the traditional sense for her inactions, but at the same time her financial insecurity cannot be attributed to either her *219husband or her marriage. This situation is nothing like the cases cited by the majority upholding property divisions based on a couple’s arrangement for the wife to “remain at home, forego her career, and take care of the children,” or “choices a couple makes during a marriage about whether one of them, and if so, which one, should remain at home to care for children or for other reasons, rather than work outside the home.” Ante, ¶ 12 (quoting Hokin v. Hokin, 605 N.W.2d 219, 228 (Wis. Ct. App. 1999)). The majority weighs other statutory factors, such as wife’s comparatively vast disadvantage in earning, vocational, occupational, and wealth opportunities, “heavily” in her favor, but with no discernible regard for equity. Nothing in the findings or evidence indicate that wife’s needy circumstance and low earning potential are in any way related to the marriage. That husband managed to cover earnings, child rearing, and domestic responsibilities in the face of wife’s failure to contribute meaningfully to any of those areas is no fair basis for awarding her the lion’s portion of his pension. This allocation of the sole marital asset is plainly inequitable compared to the findings and, so, fails to meet the objective of 15 V.S.A. § 751. See Myott v. Myott, 149 Vt. 573, 579, 547 A.2d 1336, 1340 (1988) (explaining that distributions of marital property need not be equal, but “must be equitable”).

¶ 36. The majority opines, probably correctly, that the pension was awarded in lieu of maintenance due to its income stream in order to supplement the court’s spousal maintenance order after husband’s retirement. Nevertheless, the pension allocation remains unjustified on its own terms and cannot be rationalized as a substitute for maintenance. Property distribution and maintenance awards can be interdependent, see 15 V.S.A. §§ 751(b)(7), 752(a)(1) (treating property distribution and maintenance orders as interrelated), and a remand for one requires reassessment of the other. See Downs v. Downs, 154 Vt. 161, 168, 574 A.2d 156, 159 (1990) (noting that property and maintenance decisions are so closely related that both matters must be reconsidered on remand “to allow the trial court leave to revise it if necessary”). Review of maintenance, however, does not necessarily require an increase to compensate for a reduction in property distribution.

¶ 37. Had there been a remand, the circumstances of this case would warrant an additional comment as to maintenance. Both the trial court and majority seem to assume that, regardless of wife’s choices and the irrelevance of the marriage or her husband to her *220impecuniousness, she is nevertheless entitled to husband’s subsidy as his resources allow to meet her needs and even to maintain her marital standard of living. The trial court explained its understanding that § 752 maintenance is arrived at by looking “solely at respective financial needs and corresponding ‘ability to pay’ ” entirely divorced from “equitable concerns.” This also was error.

¶ 38. Spousal maintenance under § 752 is not to be awarded so woodenly. Maintenance awards are not mandated, but “may” be ordered, 15 V.S.A. § 752(a), in the court’s discretion. See McCrea v. McCrea, 150 Vt. 204, 207, 552 A.2d 392, 394 (1988) (reiterating that “[a]n award of maintenance is subject to the trial court’s discretion” (quotation omitted)). To be sure, the court’s recognition of the standard of living and length of the marriage, as well as the parties’ comparative age, health, employability, need, resources, and ability to pay, are factors considered under the statute, but the list is not exclusive. Id. § 752(b). The maintenance award “shall be in such amounts and for such periods of time as the court deems just, after considering all relevant factors.” Id. (emphases added).

¶ 39. This Court has declared, without distinction or much discussion, that “fault or punishment” is not a- “valid consideration[] for awarding maintenance.” Jenike v. Jenike, 2004 VT 83, ¶ 9, 177 Vt. 502, 857 A.2d 798 (mem.); see also Naumann v. Kurz, 152 Vt. 355, 361, 566 A.2d 1342, 1345 (1989) (holding that “property in lieu of maintenance award cannot be used to punish ... or reflect fault”). Surely the court should not employ maintenance punitively, since punishment is irrelevant to any purpose of spousal support. On the other hand, labeled “fault” or not, taking into account a spouse’s responsibility for his or her oum economic situation arrived at independently of the marriage serves, rather than defeats, the objective of § 752 to establish a “just” maintenance obligation for the other spouse. This is not a matter of moral judgment, but an acknowledgment that the success of one spouse may be no explanation for the other’s lack of earning capacity. Having derived no benefit or advantage from the comparative lack of effort by the other, the industrious spouse should not be made to pay for the other’s dereliction. At the least, Jenike, Kurz, and the statute’s requirement of a “just” maintenance award should be understood to proscribe punishing one spouse for subsidizing the other for twenty years, without any exchange, justifiable expectation, or reliance on the part of the *221other, by ordering that the subsidy be continued in the form of spousal maintenance.

¶ 40. Under the facts found below, the § 752(b) factors should not be weighed with a view towards achieving economic parity between the parties at the expense of one spouse for the unearned benefit of the other. This is but the obverse of an element long read into the statute by this Court that “[o]ne of the purposes of maintenance under the act is recompense for the contributions of a homemaker to the family’s well-being which was not otherwise made (presumably in property division),” a purpose which is “evident from some of the factors used in determining the amount of maintenance — particularly the length of the marriage.” Klein v. Klein, 150 Vt. 466, 474, 555 A.2d 382, 387 (1988) (quotation omitted) (taking into account that “for 18 years [the wife] dedicated her life to raising the children . . . and supporting [her husband] in development of his law practice”); see also Clapp v. Clapp, 163 Vt. 15, 21, 653 A.2d 72, 76 (1994) (reaffirming “past homemaker contributions” as a basis for maintenance). Consistent with this approach is maintenance “based in part on a recognition of contributions made by one spouse to the other’s advancement” or to the other’s “education, training, and enhanced earning capacity.” Klein, 150 Vt. at 474, 555 A.2d at 387 (quotations omitted).

¶ 41. Thus, a maintenance award falls within the trial court’s discretion due to a “wife’s limited ability to establish herself in the workforce after many years of foregoing that opportunity by fulfilling her role as a mother, wife, and homemaker, and after considering the marital assets distributed to her.” Kasser v. Nasser, 2006 VT 2, ¶ 39, 179 Vt. 259, 895 A.2d 134. It is no less consistent with the statute to temper a contributing spouse’s maintenance obligation by the other spouse’s lack of contribution and the absence of a marital relationship in fact between the parties for any material period of time. Here, based on the findings, wife proved no sacrifice of opportunity on her part and the length of the marriage was meaningless. On these facts, no recompense is due.

¶ 42. I am authorized to state that Justice Johnson joins this dissent.