Guiel v. Guiel

682 A.2d 957, 165 Vt. 584, 1996 Vt. LEXIS 58

• Court: Supreme Court of Vermont
• Decided: July 2, 1996
• Docket: 95-371
• Status: Published

Opinions

Both parties appeal from the final judgment of the family court in this divorce case. Wife appeals the court’s decision awarding parental rights and responsibilities for the couple’s teenaged son, Scott, to husband. Husband appeals from the court’s property division and maintenance awards. We affirm.¹

The parties married in 1972, and adopted a son, Scott, shortly thereafter. During the marriage, wife worked as a homemaker and also worked part-time in the fields of special education and geriatric care. She has worked sporadically at part-time jobs since the parties separated in 1993, but has medical problems that prevent full-time employment. Husband works for an insurance company as a claims adjuster, earning approximately $65,000 a year. Following the separation, Scott lived for a time with his mother in the family home. In September 1994, however, the family court issued a temporary placement order awarding legal and physical parental rights and responsibilities to husband. This order was a response to an unpleasant incident between the parties at the hospital to which Scott was taken following an automobile accident.

Wife argues that the family court’s parental-rights-and-responsibilities order should be reversed because the court failed to consider her role as Scott’s primary caretaker. Although recognizing that the family court has “broad discretion in custody matters,” Nickerson v. Nickerson, 158 Vt. 85, 88, 605 A.2d 1331, 1333 (1992), wife maintains that the court abused its discretion by focusing on “isolated incidences” and disregarding wife’s role as primary caretaker and her overall parenting skills.

We note first that 15 VS.A. § 665(b)(6) requires the court to consider as one factor in parental-rights-and-responsibilities determinations “the quality of the child’s relationship with the primary care provider, if appropriate given the child’s age and development.” As Scott was sixteen at the time of the final hearing, and had been living with his father for several months, the court may have reasonably concluded that his relationship with the primary care provider was not a particularly important factor in the custody decision. Indeed, the court apparently gave great weight to Scott’s own wishes, noting that Scott was “particularly mature given his age” and “should have significant influence over his own life.”

Moreover, the court found that returning to live with his mother would be “too unsettling” for Scott and that wife’s significant medical problems, which have “affected her ability to cope with the pressures of daily life,” would make it difficult for her to deal with a teenager. The court therefore did consider “the likely effect the change of custodian would have on the child and the family,” Johnson v. Johnson, 163 Vt. 491, 494, 659 A.2d 1149, 1151 (1995), and found that Scott would be “negatively affected” by living with his mother. These findings are supported by the evidence, and suggest that Scott’s best interests are served by remaining with his father. There was no abuse of discretion.

Husband appeals the family court’s property division and maintenance orders. The court ordered that the parties’ assets be divided roughly equally, and that husband pay wife permanent maintenance in an amount sufficient to equalize the parties’ incomes. Again, this is an area in which the family court has broad discretion. Klein v. Klein, 150 Vt. 466, 468, 555 A.2d 382, 384 (1988). The court’s decision mil be upheld unless it “fails to exercise its discretion or exercises it for clearly untenable reasons or to an untenable extent.” Id. at 468-69, 555 A.2d at 384.

With respect to the maintenance award, husband argues that the court erroneously based the award “only upon the single criterion of the payor’s income.” Delozier v. Delozier, 161 Vt. 377, 385, 640 A.2d 55, 59 (1994). We do not agree with this characterization of the family court’s decision. The court stated that the basis for the maintenance award was the length of the marriage (twenty-three years) and the fact that wife is middle-aged, in poor health, and unable to work full-time. These are the kinds of factors that we identified in Delozier as supporting permanent equalization of incomes. Id. at 386, 640 A.2d at 59. The court determined that the award would permit wife to find suitable housing, take classes to prepare her for employment, and meet her reasonable personal needs. It also noted that the award would not reduce her incentive to work, because she would need to increase her income to attain the standard of living she enjoyed before the divorce. See id. at 385 n.*, 640 A.2d at 59 n.*. Given the parties’ circumstances, the court did not abuse its discretion in making the permanent maintenance award.²

Finally, husband argues that the family court’s findings do not support its property division order. In Dreves v. Dreves, 160 Vt. 330, 628 A.2d 558 (1993), we stated that, to withstand appellate review, findings made in support of property division determinations must ‘“provide a clear statement as to what was decided and why.’” Id. at 333, 628 A.2d at 560 (quoting Richard v. Richard, 146 Vt. 286, 287, 501 A.2d 1190, 1190 (1985)). Here, the family court explained its decision in great detail, meeting its obligation to explain the property division. Husband points to two specific issues: first, that although wife was reimbursed for her credit card debt accrued during the separation, he was not reimbursed for monies spent to maintain the family home during that time, and second, that the court did not fairly apportion wife’s interests in two personal injury actions. In both instances, the court acted well within its discretion. The court found that the personal injury actions were too speculative to assign a monetary value, but nonetheless assigned husband a twenty-five percent interest in the actions. (The court also assigned wife a twenty-five percent interest in husband’s personal injury action.)

With respect to wife’s credit card debt, the court found that much of the debt was for medical expenses, a significant portion of which was reimbursable by insurance. The court also found that husband had cashed two insurance checks totaling $3180 that should have been applied to wife’s medical expenses. Finally, although the court did not reimburse husband for certain expenses relating to the family home, neither did the court reimburse wife for her expenses preparing the home for sale. That wife was reimbursed for some living expenses when her credit card debt was paid may mean that the property division was not precisely equal, but property division is not an exact science. “The distribution must be equitable, not necessarily equal.” Myott v. Myott, 149 Vt. 573, 579, 547 A.2d 1336, 1340 (1988). As we concluded in Myott, the “split here is not so unequal that it shows an abuse of discretion.” Id.

Affirmed.

1 The Chief Justice sat for oral argument in this case but did not participate in the decision.

2 Husband’s concern that the maintenance award does not take into account that he is the custodian of the parties’ son appears unfounded. The court made clear in its order clarifying and amending the final judgment that the magistrate’s child support determination would reflect the parties’ equalization of income.

At oral argument, new counsel for husband raised issues relating to calculation and taxation of the maintenance award that were not briefed. Arguments raised for the first time at oral argument will not be considered by the Court. See Smith v. Smith, 139 Vt. 234, 236, 427 A.2d 378, 380 (1981) (issues not raised in appellate brief are waived), overruled on other grounds by Cliche v. Cliche, 143 Vt. 301, 466 A.2d 314 (1983).