Wade v. Wade

Skoglund, J.,

¶ 27. dissenting. “The purpose of discretion is not to foster inconsistency.” Klein v. Klein, 150 Vt. 466, 473, 555 A.2d 382, 386 (1988). Thus, different judges addressing discretionary matters in-similar cases ought to arrive at similar results. Our prior cases suggest that the lopsided award in this case would never be affirmed if it had been wife and not husband who received the paltry ten percent share of the parties’ marital estate. Here, both spouses earned less through their labors than their potential would permit, but the trial court faulted only husband for his failure to follow a “conventional career” path. Perhaps more- importantly, the court’s award leaves husband with questionable financial ability to find and maintain suitable housing *200for himself and his daughter after the divorce, even though the court found it in the child’s best interests that parental rights and responsibilities be shared by the parties. To me, the inequity in the trial court’s award under the facts here, and in light of our prior decisions, is apparent on its face. I must, therefore, dissent.*

¶ 28.1 do not disagree with the majority that the family court enjoys broad discretion to determine what is equitable when dividing a divorcing couple’s property. But the family court’s exercise of discretion must, in the end, achieve an equitable result. In a twelve-year-long marriage, a 90/10 split of marital property is facially inequitable. See Harris v. Harris, 162 Vt. 174, 647 A.2d 309 (1994) (reversing judgment awarding wife only eight to twelve percent of marital property in marriage of seven years); Dreves v. Dreves, 160 Vt. 330, 628 A.2d 558 (1993) (reversing judgment awarding wife eighteen percent, compared to husband’s eighty-two percent, of marital estate in six-year marriage). Such a great disparity in the property awarded each spouse in a marriage of this length demands that this Court examine the equities more closely to assure that the result is just. Hards, 162 Vt. at 184, 647 A.2d at 316 (citing Daitchman v. Daitchman, 145 Vt. 145, 150, 483 A.2d 270, 273 (1984)).

¶ 29. Such a close examination convinces me that the equities here are not just and, as in similar cases, would support reversal. As the majority acknowledges, the family court weighed two statutory factors more heavily than others in its decision: (1) the party through whom the property was acquired, and (2) the contributions of each spouse to the maintenance and preservation of the' parties’ property. 15 V.S.A. § 751(b)(10), (11). Reasoning that those factors were the most important in this case, the family court gave no weight to the length of the marriage, and it discounted husband’s financial and in-kind contributions to the household and to the maintenance of valuable marital property. Id. § 751(b)(1), (11). The family court’s findings, and the record supporting them, indicate that husband contributed to the maintenance of the marital home and the rental property gifted by wife’s mother. He performed renovations that permitted wife to run the Sunshine School from her home. The family court’s decision notes *201those contributions, but gives them virtually no weight in its decision. That was reversible error in my view.

¶ 30. In Dreves v. Dreves, the Court reversed a similar award, which, in contrast to this case, gave most (eighty percent) of .the property to husband rather than to wife. The family court’s only reasons for the disproportionate award in Dreves were the short length of the marriage, six years, and the fact that virtually all of the parties’ assets were attributable to husband. 160 Vt. at 334, 628 A.2d at 560. The Court reversed. Holding that the family court did not adequately explain the facially inequitable judgment, the Court chastised the family court for not weighing more heavily wife’s lower earning capacity and her need to find alternative living arrangements after the divorce. Id.

¶ 31. Similarly, in Harris v. Harris, the Court reversed an award that gave wife only eight to twelve percent of the parties’ property. The parties in Harris were married for only seven years, five years fewer than the parties in this case. Like husband here, Mrs. Harris brought no property to the marriage. And, like wife and her mother in this case, Mr. Harris and his family were the source of most of the parties’ property. On appeal, the Court held that the property’s origin alone is not enough to warrant a one-sided award when other factors were present. 162 Vt. at 183, 647 A.2d at 315. For example, the Court explained, Mrs. Harris worked as a homemaker during the seven-year marriage, but she was given no credit for that contribution to the family. Id.

¶ 32. This case is not meaningfully different from cases like Harris and Dreves involving a displaced homemaker where the spouses decide to allocate their time and labor in a manner that allows one- spouse to pursue a career. Like a homemaker, husband spent his time caring for the parties’ minor daughter and making in-kind contributions to the family’s welfare. The family court found that during the marriage husband contributed most of his earnings to pay a share of the parties’ household expenses, even though it also found that he never earned very much. The court found that husband had to charge some of the family’s expenses to his credit cards because of his low earnings. Husband invested sweat equity to improve the marital home for use as a school, thereby contributing to wife’s professional development. Husband spent both money and time working on the sailboat wife purchased with funds that her mother gave her. Husband’s active participation in caring for the parties’ minor daughter was the reason the court ordered the shared parenting arrangement. Husband has *202limited education in comparison to wife, and he suffers from a learning disability. At nearly fifty-years old, husband has a work history consisting mostly of seasonal labor. While the court found husband “receives compensation for his work on the house through the $10,000 he has already received from the sale of [wife’s] mother’s house,” $10,000 for twelve years of contributions to the marriage and family cannot seriously be considered equitable. Husband’s contributions to the family’s well-being cannot have been properly factored into the property award.

¶ 33. The only meaningful differences between the circumstances of this case and the circumstances leading to the Court’s reversal of the property division for the homemakers in Dreves and Harris are: (1) the parties here were married for nearly twice as long as the couples in Dreves and Harris, and (2) the family court in this case shortchanged husband and not wife. The first difference should presumably weigh in favor of giving husband a greater share of the parties’ property under the theory that the longer the marriage, the more entitlement each spouse has in the other’s property. The second difference is one that concerns me.

¶ 34. Husband and wife together chose a lifestyle in which both parties earned less than their potential. The family court viewed husband’s lifestyle and under-earnings differently from wife’s without any rational explanation, however. The court’s negative view of husband’s lifestyle is most apparent in the court’s discussion of the parties’ education and employment histories. The court explained that husband decided not to pursue a “conventional career,” rather he worked on a “seasonal basis and taking time when he wishe[d] to work on his own business.” It denied husband a share of the $128,000 of equity in the marital home because, in the court’s view, husband’s career choices “d[id] not entitle him to a share of the equity.” The family court observed that husband could make more money by working full time doing construction or some other work in the Mad River Valley. It made no findings, however, on how much more money husband could earn in light of his age, limited education, dyslexia, and seasonal work experience.

¶ 35. In contrast, the family court characterized wife’s employment and earning decisions in a positive light. The court found that wife has a college degree in psychology and arts and is a certified Montessori teacher. The court found that on average a preschool teacher earns more than wife does running her own school at home. It also found that wife’s business has no value, and, in fact, would lose money if she were *203to relocate the school to another building. The court explained that wife’s chosen path provided her with a living and that it “fulfills her personal interest in childhood education.” The court fails to explain why it treated these similarly situated parties differently, and no rational reason to do so is apparent from the record.

¶ 36. The award here also fails as a sustainable exercise of discretion because it gives husband shared parental rights and responsibilities but does not give him sufficient financial resources to obtain and maintain a place to live so he can share physical responsibilities for his daughter. Cf. Hams, 162 Vt. at 183-84, 647 A.2d at 315 (reversing a property award in part because the family court failed to consider wife’s need to find a suitable place to live for herself and her daughter after the divorce). The family court found that husband’s living arrangements are fine for him, but not for the child. The court was well aware of the shared parenting arrangement that called for husband to care for the child nearly forty percent of the time. The family court appears to have overlooked husband’s concern about finding a suitable place to live with his daughter after the divorce. On appeal, the majority rejects husband’s argument on this point, explaining only that § 751(b) neither forbids nor requires the family court to consider husband’s post-divorce living circumstances. Ante, ¶ 16. When divorcing parties and the family court agree that it is in the child’s best interests to share parental rights and responsibilities, and the court finds that one parent does not live in conditions suitable for that child, equity demands that, to the extent possible, the family court apportion the marital property so that both parents can achieve stable and suitable housing for themselves and their child after the divorce. That principle is especially applicable where, as here, there is sufficient property to make possible appropriate living arrangements for both parties.

¶ 37.1 do not favor giving undue scrutiny to the discretionary decisions our trial courts are responsible for making, decisions they make hundreds of times each day. And, I believe that the party seeking reversal of a family court judgment under the abuse-of-discretion standard has a very high hurdle to overcome. Here, husband has plainly overcome that hurdle. The family court’s decision in this case places far too much weight on wife’s financial contributions to the marital estate where other factors were present, just as the family court did in Hams and Dreves. Moreover, it is apparent that the ninety/ten split in wife’s favor arises in great part from the family court’s negative view of husband’s under-earning, a view the court *204notably did not hold about wife’s similar history of under-earning. Finally, the award leaves the parties’ daughter with no suitable place to live when father has physical responsibility for her under the shared parenting arrangement, an arrangement that all agree is in the child’s best interests. For those reasons, the property division in this case is inequitable and I would reverse the judgment. I am authorized to state that Justice Johnson joins in this dissent.

I do not disagree with the Court’s analysis of husband’s claim regarding his daughter’s Uniform Gifts to Minors Act account. My dissent relates solely to the glaring inequity in the family court’s properly apportionment given its findings and its award of parental rights and responsibilities.