Opinion
No. 190-80
Opinion Filed February 3, 1981
1. Divorce — Property Settlement — Determining Factors Generally
Factors to consider in disposing of property pursuant to a divorce are the source of the property, the merits of the parties, the condition in which each party will be left following divorce, the needs of any children, and general justice and equity.
2. Divorce — Alimony — Discretion
Trial courts have wide discretion, within statutory limits, in formulating alimony and property disposition awards pursuant to a divorce, and supreme court will not interfere if a reasonable basis supports the award, finding abuse of discretion only if the court fails to exercise its discretion or exercises it for clearly untenable reasons or to an untenable extent.
3. Divorce — Burden of Proof — Generally
One appealing an alimony or property disposition award in a divorce decree has the burden to show that the lower court failed to carry out its duties.
4. Divorce — Property Settlement — Discretion of Court
While disposition of property pursuant to a divorce cannot be an exact science and a certain flexibility is warranted, a decree on the matter is final and not subject to modification and thus the wide discretion of the trial court on the matter must be tempered when the disposition reflects inadequate findings.
5. Divorce — Appeals — Findings
Where there was widely conflicting evidence about acreage involved in property disposition pursuant to divorce the court had the duty to make a conclusive finding, and where court found that there was "more than 100 acres" it failed in its duty, adequate review was impossible and remand was necessary.
6. Divorce — Property Settlement — Manner in Which Property Was Acquired
In view of undisputed evidence that husband inherited a one-half share of certain real estate upon his mother's death and that he and his wife subsequently purchased the other half from the guardian of another heir, finding in divorce proceeding, that husband inherited the entire tract, was clear error, and court must reexamine its finding.
7. Divorce — Property Settlement — Distribution of Real Property
That court in divorce proceeding ordered husband to pay mortgage on house and five acres granted wife, and gave certain land upon which a child was growing Christmas trees to husband, would not be found in error on theory that the order seriously jeopardized the interests of the children to the marriage; legal remedies existed for safeguarding abuse by husband.
Plaintiff wife appealed from divorce decree. Addison Superior Court, Morrissey, J., presiding. Reversed and remanded.
Chester S. Ketcham, Middlebury, for Plaintiff.
Langrock Sperry Parker Stahl, Middlebury, for Defendant.
Present: Barney, C.J., Billings and Hill, JJ., and Shangraw, C.J. (Ret.) and Smith, J. (Ret.) Specially Assigned
Plaintiff appeals from a divorce decree granted by the Addison Superior Court. The principal issues relate to the distribution of the property of the parties.
The divorce was granted pursuant to 15 V.S.A. § 551(7) after a finding that the parties had not lived together as husband and wife for more than six consecutive months and there was no reasonable probability that they would resume the marital relationship. The major asset of the parties was a house and land in New Haven, Vermont. The house was burdened with $20,000 remaining on a mortgage. The lower court awarded plaintiff the house and five acres, purportedly reflecting one-third of the value of the property. The remaining land was decreed to the defendant.
Plaintiff challenges the court's findings of fact relating to the source and amount of property involved, and claims the trial court abused its discretion in the distribution of the property. We agree.
Disposition of property following divorce is governed by 15 V.S.A. § 751. Factors to be considered in forming a decree include the source of the property, the respective merits of the parties, the condition in which each will be left by the divorce, the needs of the children, as well as general justice and equity. See vanLoon v. vanLoon, 132 Vt. 236, 240-41, 315 A.2d 866, 869 (1974).
Trial courts have wide discretion, within the limits set by Title 15, in formulating awards of property and alimony. Hogel v. Hogel, 136 Vt. 195, 197, 388 A.2d 369, 370 (1978). This Court will not interfere if a reasonable basis supports the court's actions. Brooks v. Brooks, 131 Vt. 86, 93, 300 A.2d 531, 535 (1973). Abuse of discretion will only be found if the trial court fails to exercise its discretion, exercises it for clearly untenable reasons or to an untenable extent. Id. at 92, 300 A.2d at 535. The burden is on the appellant to show that the court failed to carry out its duties. Id.
In the present case, the trial court based the property distribution on findings that the pertinent real estate was "inherited" by the defendant and "consists of more than 100 acres." While we acknowledge that distribution of property can not be an exact science and that a certain flexibility is warranted, Hogel, supra, 136 Vt. at 197, 388 A.2d at 370, it must be kept in mind that a decree relative to property is final and not subject to modification, Robinson v. Robinson, 130 Vt. 558, 561-62, 298 A.2d 556, 558 (1972). Thus, the wide discretion given to the trial court in this area must be tempered when the distribution reflects inadequate findings.
As when awarding money damages in civil actions, approximations are of little assistance. See Scribner v. State Highway Board, 133 Vt. 163, 333 A.2d 125 (1975). The court's finding that the real estate in question is "more than 100 acres" precludes an acceptable approximation of the value involved. Widely conflicting evidence about the acreage was introduced. Under those circumstances, the judge has the duty of making a conclusive finding of fact, particularly with real estate when the value depends in part on the amount of land involved. Because the lower court failed to carry out its duty, an adequate review of the proceeding below is impossible. See vanLoon, supra, 132 Vt. at 242, 315 A.2d at 870. A remand is necessitated.
Plaintiff also challenges the court's finding that defendant "inherited" the property in question. The original source of property is one factor to be considered under 15 V.S.A. § 751 in disposing of real estate after a divorce. It is undisputed that defendant's parents had owned the New Haven property and that defendant inherited a one-half share of that property upon his mother's death. Plaintiff and defendant subsequently purchased the remaining one-half from the guardian of another heir. There is no support for the court's conclusion that defendant "inherited" the entire amount. Such a conclusion is clear error. Though the history of real estate is not of controlling significance in disposing of land after a divorce, Culver v. Culver, 133 Vt. 191, 193-94, 332 A.2d 799, 801 (1975), and there is no indication that the court's inaccurate finding was given disproportionate weight, nevertheless the trial court must re-examine its finding about the source of the New Haven real estate.
Finally, plaintiff argues that the decree seriously jeopardizes the children's interests, contrary to 15 V.S.A. § 751. Defendant is held responsible for paying the mortgage on the house and land, including the five acres given to appellant. Also, defendant is given certain land previously used by the eldest child for growing and selling Christmas trees.
It is common practice in this state to fashion a property decree which holds a former husband responsible for paying a mortgage on property given to the ex-wife. See Peisch v. Peisch, 132 Vt. 514, 321 A.2d 67 (1974). There are legal remedies for safeguarding against abuse, and we will not order an end to this practice when the trial court in its discretion decides the arrangement best suits the situation. Neither the mortgage arrangement nor giving the land previously used for the Christmas tree business to defendant contradicts vanLoon, supra, where we warned against uprooting the children from the homestead.
Reversed and remanded for consideration in accordance with this opinion.