Kasser v. Kasser

2006 VT 2, 895 A.2d 134, 179 Vt. 259, 2006 Vt. LEXIS 2

• Court: Supreme Court of Vermont
• Decided: January 6, 2006
• Docket: 03-065
• Status: Published

Opinions

Reiber, CJ.

¶ 1. Wife Eileen M. Kasser appeals from the family court’s final divorce order, which divided the parties’ sizeable marital estate. The parties’ wealth stems largely from hotel investments, title to which are held by husband Lawrence N. Kasser and various trusts. Husband and wife agreed that, in dividing the marital estate, the court should not liquidate the hotel properties, nor should it invade the trusts. The family court assessed the value of the hotel properties and the trusts, in addition to other assets, and determined the portion attributable to the marital estate. Wife argues that the court abused its discretion in determining the value of the marital estate, dividing the marital assets, and calculating maintenance. We affirm.

¶ 2. The family court made the following findings. Husband and -wife were married in 1980. They have three children together, two of whom are in college, and one of whom, a minor, attends a private boarding school. Husband was born in 1943, and he was trained as an architect. Wife was bom in 1949, and she holds a bachelor’s degree in fine arts. The parties moved to Vermont in 1981. Since that time, with one small exception, wife has been a full-time homemaker. Between 1981 and 1988, husband worked as an architect. During this time, the parties enjoyed a modest lifestyle.

¶ 3. In 1987, husband began acquiring hotel properties. In 1988, husband received $1,400,000 from the sale of a family business, and he closed his architectural practice. In 1991, husband’s father died. Husband’s share of the estate, $750,000, was placed in the Lawrence Kasser Irrevocable Trust. This trust pays income to husband for life. When husband dies, the parties’ children receive the income and, eventually, the principal. The parties also created irrevocable trusts in their children’s names, and they regularly contributed the maximum amount allowed by law to each trust, i.e., $60,000 per year. After 1994, husband became more involved in the purchase of hotel properties. The parties’ lifestyle improved, and they became affluent.

¶ 4. In late 1996, wife became disenchanted with husband and with her life in Vermont. She contemplated divorce. In the summer of 1997, she moved to Boston, where husband and the parties’ minor child later joined her. In June 1998, husband and child returned to Vermont. In February 1999, husband initiated divorce proceedings.

¶ 5. The family court held a five-day hearing and issued a lengthy final divorce order in January 2003. The court first assessed the value of eight hotel properties, relying heavily on testimony provided by husband’s expert, whom it found credible. The court found that the first hotel property, referred to as the “Exit 6” property, was worth $60,000, and it was owned by the children’s trusts. A second property, the Springfield Holiday Inn, was owned by a subchapter S corporation called Preferred Motor Inns of New England, Inc. (PMI). The children’s trusts held 99% of the PMI stock, while husband owned 1%. The court found that the Springfield property was worth $1,400,000, and husband’s 1% share was worth $14,000. Husband also owned a 50% share in a Holiday Inn in Weirton, West Virginia. This hotel had a net equity value of negative $1,170,000, and husband’s 50% share was negative $585,000. The court also assessed the value of five additional hotel properties in which husband held a 50% interest.

¶ 6. Based on its findings, the court concluded that the full net equity value of the eight hotel properties was $7,499,000. Taking husband’s 1% interest in the Springfield Holiday Inn into account, the court found that husband’s interest in these hotels was $3,064,000. The court recognized that the parties sharply disagreed as to the value of husband’s interests in the various hotel properties, particularly the effect of husband’s 50% ownership. The court rejected husband’s argument that his “minority” shares were without value, and instead found that husband’s partial ownership diminished the present value of his interest by 25%-33%. The court thus found that husband’s interest in the hotel properties was worth between $2,000,000 and $2,225,000.

¶7. The court turned next to the Lawrence Kasser Irrevocable Trust, which had a value of $850,000. The court found that husband received approximately $1250 per month in income from the trust, and he also used the trust as a source of borrowing for his hotel investments. The court explained that husband had a limited right to invade the principal of the trust for his benefit during his lifetime, but a prudent fiduciary would not exercise that right absent dire need, which appeared unlikely given husband’s financial situation. Thus, because husband did not have an unlimited right to the principal, the court considered this asset as a source of income only. The court determined the value and ownership of numerous other assets, including a condominium in New York City and three condominiums in Vermont owned primarily by the children’s trusts.

¶ 8. The court found that husband also had an investment account, called the Streamway Investment Account, with a value of $551,673. The bulk of the account’s assets were in three promissory notes. One note had a face value of $200,000, but it did not pay interest and was not being amortized. A second note was from PMI for $250,000, which paid $2000 in monthly interest. A third note from the Falmouth Motel for $100,000 paid $1250 in monthly interest. The account also held a small investment in another entity, which had a value of $1784. The court found that, in total, husband received $3250 per month in interest from the Streamway account.

¶ 9. Based on extensive findings, the court concluded that the gross marital estate was worth approximately $3,160,000. The court arrived at this figure by adding together the diminished value of the hotel/motel properties ($2,100,000), the net value of the marital homestead ($285,000), husband’s interest in a company called Vermont Teas ($30,000), husband’s IRA accounts ($118,000), wife’s IRA ($27,000), two cars ($15,000), the Streamway Investment Account ($551,500), husband’s personal checking account ($5000), husband’s interest in another business ($10,000), and a tractor ($20,000). The court considered this a somewhat flexible figure given the nature of the marital assets and the many variables inherent in the valuation process.

¶ 10. In reaching its conclusion, the court considered wife’s assertion that the value of the PMI stock, the Exit 6 property, and the New York and Vermont condominiums held by the children’s trusts should be considered marital assets. Wife argued that husband had transferred these assets to the children’s trusts in fraud of her rights in the marital estate. The court rejected this argument and found that the establishment of the children’s trusts, and the contributions to them and their management, had been prudent and not done with any purpose, to deplete the marital estate. The court found that husband had faithfully contributed to these trusts the maximum amount allowed by the gift tax law, i.e., $20,000 per child or $60,000 per year. The court explained that wife was aware of the establishment of the children’s trusts and was generally aware of the transactions taking place with respect to them. Based on these and other findings, the court found that husband’s actions had been undertaken with the intent of wisely providing for the children’s future while preserving a source of income and borrowing.

¶ 11. The court next considered how best to distribute the marital assets, mindful of the parties’ stipulation that the assets not be liquidated nor the trusts invaded. In addition to other assets, the court awarded husband his interests in the hotel businesses and related entities, as well as his interests in the various trusts. Husband received the marital home, with a net value of $285,000. He was ordered to pay wife $345,000 to offset this award, which the court considered a partial division of the overall marital estate. Husband was also ordered to pay wife $300,000 as an additional distribution of cash in lieu of marital property, payable in ten annual payments of $30,000 at a 6% interest rate, plus interest on the unpaid balance at a rate of 6% per year. Husband was also ordered to buy wife a new car at a cost of $40,000, maintain health insurance for wife, and name wife as a beneficiary in his life insurance policy. Based on a pretrial stipulation between the parties, the court also ordered husband to pay the “reasonable” expenses of wife’s financial expert. The court found that of the $37,465 that remained outstanding on the expert’s bill, $20,000 was reasonable and should be paid by husband. The court held wife responsible for the balance.

¶ 12. The court turned next to maintenance. It found that the parties had enjoyed an affluent lifestyle and wife had no income other than the $3500 per month that husband was paying during the divorce proceedings. The court noted that husband had also been paying for all of wife’s household expenses, including the mortgage, during this period, and thus the $3500 monthly payment had been available to wife solely for her personal needs. Based on numerous findings, the court concluded that, in light of its distribution of the marital estate, including the $712,000 awarded to wife ($345,000 in cash; $300,000 payable over ten years at 6% interest; her IRA worth $27,000; and a $40,000 car), and considering the factors set forth in 15 V.S.A. § 752, wife’s reasonable needs, as best could be determined absent reliable evidence from her, were approximately $6000 per month.

¶ 13. The court found it difficult to determine husband’s monthly income given the nature of his hotel holdings, and the fact that his tax returns did not necessarily reflect income that was actually available to him. Based on numerous findings, the court concluded that husband earned $25,000 per month, or $300,000 per year. In evaluating husband’s expenses, the court noted that husband offered to pay the full educational expenses of his two eldest children, without objection from wife. He also agreed to pay the educational expenses of the parties’ youngest child, who was enrolled in private school. The court considered these payments as a factor in the income-expense analysis. Taking all of the evidence into consideration, the court concluded that husband’s reasonable personal expenses were $15,000 per month.

¶ 14. Based on its findings, the court ordered husband to pay wife $5500 per month beginning in February 2003, $6500 per month beginning July 1,2003, and $7500 per month beginning in July 2006. In other words, wife will receive $78,000 per year in maintenance between July 2003 and July 2006, and $90,000 per year thereafter. Wife appealed from the court’s final order.

¶ 15. Wife first argues that the family court erred in calculating the value of the marital estate. She asserts that the court should have included the value of the PMI stock and the Exit 6 property because husband transferred these assets to the children with the intent to deprive her of her fair share of the marital estate. Wife maintains that she was not notified of the transfers, nor did she consent to them. According to wife, husband continues to treat PMI as his own property despite the stock transfer. She notes that he holds the only voting stock in the company, he spent $750,000 to renovate the Springfield Holiday Inn owned by PMI, he receives a salary from PMI, PMI pays the rent on his New York City apartment, and PMI paid for his car. As to the Exit 6 property, wife states that husband spent $140,000 of marital assets for its purchase.

¶ 16. We find no abuse of discretion. The family court is authorized to equitably divide and assign marital property, and it may consider various statutory factors in making its decision. Cabot v. Cabot, 166 Vt. 485, 500, 697 A.2d 644, 654 (1997); 15 V.S.A. § 751. “All property owned by either or both of the parties, however and whenever acquired, [is] subject to the jurisdiction of the court.” 15 V.S.A. § 751(a). The family court may also include as marital assets property that has been placed in other names to avoid distribution to a spouse. Soutiere v. Soutiere, 163 Vt. 265, 271, 657 A.2d 206, 209 (1995); see also Nevitt v. Nevitt, 155 Vt. 391, 400, 584 A.2d 1134, 1139 (1990) (recognizing that this Court will not condone or give effect to actions “when taken with intent to deprive one’s spouse of a fair portion of the marital assets”). On review, we will uphold the family court’s findings of fact unless, taking the evidence in the light most favorable to the prevailing party and excluding the effect of modifying evidence, there is no credible evidence in the record to support them. Semprebon v. Semprebon, 157 Vt. 209, 214, 596 A.2d 361, 363 (1991).

¶ 17. In this case, the parties agreed that in dividing the marital estate the family court “should not include any order for liquidation of any of the marital assets or invasion even to the extent possible of any of the trust entities.”¹ Thus, wife asked the court to include the value of the Exit 6 property and the PMI stock in the marital estate, but she did not ask the court to set aside the transfers. Evidently, wife wanted the children to keep the assets and, at the same time, she wanted the full value of the assets to be included in the marital estate. The family court did not abuse its discretion in rejecting this request, which was not only unfair but also contrary to the parties’ mutual objective. The parties agreed that the trusts would not be invaded. Thus, by agreement, the children retained ownership of these assets. The assets were therefore not “marital property” subject to distribution by the court.² See Wade v. Wade, 2005 VT 72, ¶ 10, 178 Vt. 189, 878 A.2d 303 (finding no error in trial court’s exclusion of assets in child’s trust account from marital estate because funds were child’s property and “not part of the marital estate subject to equitable distribution in a divorce proceeding”).

¶ 18. To the extent that the family court might have overridden the parties’ agreement and ordered that the transfers be rescinded as fraudulent (despite the absence of such a request), the court did not err by failing to do so. Cf. Clayton v. Clayton, 153 Vt. 138, 142-43, 569 A.2d 1077, 1080 (1989) (stating that the family court had a duty to consider the bona fides of husband’s post-separation transfer of assets in assessing the value of all property interests of each party under 15 V.S.A. § 751(b)(6), and noting that husband was free to present evidence that conveyances were bona fide and not undertaken for the purpose of diminishing the value of the marital estate). Indeed, the family court specifically found that the establishment of the children’s trusts, the contributions made to them, and their management, were entirely prudent, and not done with any purpose to deplete the marital estate or defraud wife. The court also found that wife was aware of both the establishment of the trusts and, in general, the transactions taking place with respect to them. These findings are supported by the record.

¶ 19. In asserting that husband transferred these assets with the intent to diminish the marital estate, wife essentially asks this Court to reweigh the evidence and reach a conclusion opposite to that reached by the family court. This we will not do. We defer to the family court’s findings because that court is in a unique position to assess the credibility of witnesses and weigh the persuasiveness of the evidence. Cabot, 166 Vt. at 497, 697 A.2d at 652. Where, as here, the court’s findings are supported by credible evidence in the record, they must stand on appeal. Semprebon, 157 Vt. at 214, 596 A.2d at 363. The court acted within its discretion in refusing to include the value of assets owned by the children’s trusts as part of the marital estate.

¶ 20. For similar reasons, we also reject wife’s assertion that the family court erred by excluding from the marital estate the value of assets held by the Lawrence Kasser Irrevocable Trust. Wife contends that the value of the assets should have been included because husband has control over them, and because the trust was funded with assets that would have been marital property but for the creation of the trust. She notes that husband is the sole beneficiary of the trust, he can invade the principal of the trust for his care and comfort, and he can replace the trustee.

¶ 21. Wife’s argument is undermined by the terms of the parties’ pretrial agreement. Wife agreed that the family court should not invade the trusts, nor liquidate the parties’ assets in dividing the marital estate. Consistent with this stipulation, the family court considered the Lawrence Kasser Irrevocable Trust for the income that it provided to husband, and it did not consider the trust’s assets as marital property to be divided. The court did not abuse its discretion in its treatment of this asset.

¶ 22. Wife relies on Chilkott v. Chilkott, 158 Vt. 193, 607 A.2d 883 (1992), to support her assertion that the family court should have come up with a creative way to account for the trust’s assets in distributing the marital estate. She asserts that husband’s interest in the trust is not so remote that it has no ascertainable present value. According to wife, husband’s behavior indicates that he treats the trust as his personal savings account.

¶ 23. Wife’s reliance on Chilkott is misplaced. In Chilkott, the husband held a future interest in the income from a trust, contingent on his elderly mother’s death, along with a future unrestricted right to invade the principal. The issue in Chilkott was not whether the husband’s trust interest was marital property, but whether his future interest was so remote that it had no ascertainable present value, or whether its value could be “assessed without excessive speculation.” Id. at 196, 607 A.2d at 885. In Chilkott, the family court relied on uncontradicted evidence to establish the value of the husband’s present interest in the trust, and we upheld its finding. Id. at 197, 607 A.2d at 885.

¶ 24. In this case, husband does not, and will never have, an unrestricted right to invade the principal of the trust. The children are the beneficiaries of the trust. Husband receives income from the trust, which the court considered in making its award. Had the court included the full value of this asset in the marital estate, husband would have had to account for this asset twice — the principal would have been considered and distributed as part of the marital estate even though the children are entitled to receive the principal. The court did not abuse its discretion in rejecting this approach.

¶ 25. Wife also challenges the court’s treatment of a $250,000 promissory note on the Weirton, West Virginia hotel, which she argues was not part of the trust but runs to husband individually. Wife argues that the court ignored the Weirton note, and assigned a negative value to the hotel, which decreased the value of the marital estate by $585,000. We reject this assertion. The court did consider this note for the interest income that it provided to husband. The court explained that the note was a third mortgage on the Weirton property, and it was an existing obligation at the time of the hotel’s purchase. Husband purchased the note from the then-holder. The court found that the present value of the note was $221,000, and although it had not been making payments for some time, it was currently making payments of $1000 per month to husband. The court took this asset into account and did not abuse its discretion in considering it for the income that it provided to husband.

¶ 26. Wife next argues that the court erred in reducing the value of husband’s hotel shares by 25%-33% to ■ account for his “minority” ownership status. According to wife, there was no evidence that such a reduction reflected the fair market values of the shares, and all parties testified that the hotel operating agreements required full payment of any withdrawing partner’s share. Wife maintains that the court had no information from which to make its judgment that the value of the assets were diminished by 25%-33%.

¶ 27. We disagree. Husband’s expert testified that the value of husband’s shares was significantly reduced due to his 50% ownership, and the court’s reduction was within the range of evidence presented at trial. See Kanaan v. Kanaan, 163 Vt. 402, 406-08, 659 A.2d 128, 131-32 (1995) (family court’s ability to find a proper valuation is limited by the evidence put on by the parties and the credibility of that evidence). At trial, husband’s expert testified to the value of husband’s “minority” interest in each property. The expert began by halving the full value that he attributed to each hotel. He then attempted to determine the “real world market-based” valuation of a minority interest. He testified that the marketability for a noncontrolling interest was “significantly diminished,” and he questioned whether there was even an active market for minority interests. Husband’s position at trial was that his minority interests had no market value, and they were significant only to the extent that they provided him with a revenue stream. Wife argued in support of a 50% reduction of each property’s ascertained value, but without an additional reduction to account for the “real world market-based” value of husband’s 50% interests.

¶ 28. We have recognized the difficulty inherent in establishing the value of closely held stock. Goodrich v. Goodrich, 158 Vt. 587, 590, 613 A.2d 203, 205 (1992). In Goodrich, we found that a party’s minority interest in a corporation supported a discount in the value of the stock because the shares were not readily marketable and they could not convey a controlling interest in the company. See id. at 591, 613 A.2d at 205-06; see also Cabot, 166 Vt. at 499, 697 A.2d at 653 (recognizing the difficult task of valuing husband’s interest in limited partnership, and stating that “market value of a share in a partnership, like the value of a closely held business, may be difficult to fix precisely”). In this case, the family court received conflicting evidence as to the “real world” value of husband’s 50% hotel interests. The court was not swayed by husband’s argument that his shares were without value, nor was it persuaded by wife that the value of husband’s interests was simply half of the fair market value of each property. Given the evidence presented at trial, including expert testimony that the value of the shares was “significantly diminished,” the court acted within its discretion in reducing the value of husband’s interests by 25% to 33% to account for his 50% ownership.

¶29. Wife next challenges the court’s distribution of the marital assets. She argues that the court abused its discretion because she received only 20% of the marital estate after twenty-three years of marriage. She also complains that she did not receive the marital home.

¶ 30. The family court has broad discretion in dividing marital property, and we will uphold its decision unless its discretion was abused, withheld, or exercised on clearly untenable grounds. Chilkott, 158 Vt. at 198, 607 A.2d at 886. The party claiming an abuse of discretion bears the burden of showing that the trial court failed to carry out its duties. Field v. Field, 139 Vt. 242, 244, 427 A.2d 350, 352 (1981). We have noted that the distribution of property is not an exact science and, therefore, all that is required is that the distribution be equitable. Lalumiere v. Lalumiere, 149 Vt. 469, 471, 544 A.2d 1170, 1172 (1988).

¶ 31. We find the court’s award equitable here. The trial court considered the statutory factors in making its award, and it made detailed findings to support its conclusions. The court recognized wife’s contribution to the family, but it also found it significant that all of the parties’ financial assets had been acquired through husband. See Wade, 2005 VT 72, ¶¶ 17-23 (upholding family court’s order awarding 90% of marital estate to wife where the court explained in detail why it had attributed great weight to two statutory factors — the party through whom the assets were acquired and the party that had contributed more to their preservation — in arriving at its decision). In this case, the family court was faced with the difficult task of assessing the value of the hotel properties and arriving at a distribution that did not require the liquidation of these holdings or the invasion of the trusts.³ Although wife argues that she received only 20% of the marital assets, it is difficult to determine with precision the exact percentage of assets awarded to each party. As the family court found, the gross yalue of the marital estate was a flexible number.

¶ 32. In distributing the parties’ assets, the court rejected wife’s request for an award of $5,000,000 cash in lieu of property. Wife argued, without credible evidence, that the marital estate was worth $10,000,000 and she needed a monthly income stream of $25,000. Wife noted that if the $5,000,000 was paid over a period of ten to fifteen years at a 5% interest rate it would initially yield $20,800 in monthly interest payments, which would leave her a $4200 monthly shortfall in meeting her needs. Wife proposed that the shortfall between the interest and her needs be paid as spousal maintenance.

¶ 33. The court found this request unreasonable and “out of touch with reality” for numerous reasons. It explained that wife’s reasonable needs, as measured by the standard of living enjoyed by the parties, did not come close to $25,000 per month. Moreover, the $5,000,000 request for cash in lieu of property was greater than the entire amount of the marital estate as found by the court. The court explained that if $5,000,000 was paid over ten years, that would require principal payments of $500,000 per year, which was entirely beyond husband’s means and would totally consume within a short period of time the assets remaining with him. The court also found that, based on husband’s $25,000 monthly income and $15,000 in monthly expenses, he was unable to pay wife $25,000 per month, whether through a combination of interest and maintenance, or solely through maintenance.

¶ 34. Rather than adopt wife’s unrealistic proposal, and absent a credible figure for wife’s reasonable expenses, the court sought to fashion a distribution of the parties’ assets in combination with spousal maintenance that would allow wife to maintain a lifestyle commensurate with that established during the marriage while also preserving an income stream to husband that would allow him to meet his obligations to wife, as well as his own established reasonable needs. Pursuant to the court’s award, wife received $345,000 in cash, in addition to a $300,000 cash payment, to be paid in ten installments of $30,000 at 6% interest, plus 6% interest accruing on the unpaid balance. At a modest rate of return of 4%, the $345,000 can generate $13,800 in annual interest alone. Wife will also earn 6% interest, or $1800, on each $30,000 yearly installment payment, as well as 6% yearly interest on the unpaid balance of the $300,000 award, which amounts to $16,200 the second year, $14,200 the third year, $12,600 the fourth year, and so on. Wife also received her IRA worth $27,000, a new car worth $40,000, and she will be named as a beneficiary in husband’s life insurance policy.

¶ 35. This case is not like Dreves v. Dreves, 160 Vt. 330, 628 A.2d 558 (1993), on which wife relies. In that case, we reversed the family court’s property distribution where the wife received 12.5% of the marital assets, and the family court offered no explanation for the disparity in its distribution of the assets. Id. at 333-35, 628 A.2d at 560-61. In this case, the court made extensive findings to support its distribution. It acted within its discretion in crafting an award that would preserve husband’s income stream, thus allowing him to meet his financial obligations. Given the large cash settlement that wife will receive, as well as the substantial monthly maintenance payments, we find the court’s award equitable.

¶ 36. We similarly find no error in the court’s decision to award the marital home to husband. The court recognized that the parties sharply disagreed over who should be awarded the home. Husband testified to his long attachment to the property, which he had purchased in 1968, his contribution to improving the property, as well as his greater ability to maintain the property. Husband testified that wife had repeatedly informed him that Vermont was “not for her.” Wife asserted that she should receive the property because it had been her home throughout the marriage, and she had made it into a home. The court noted that the parties shared joint custody over their minor child, and there was no particular evidence that the children preferred to return to the marital home with any particular parent. The court also found it likely that wife would leave Vermont in the future. Faced with these competing claims, the court acted within its discretion in awarding husband the marital home, and requiring him to pay wife the full value of the home.

¶ 37. Wife next challenges the court’s maintenance award. She asserts that the court abused its discretion because its maintenance award will not allow her to maintain the lifestyle that she enjoyed during the marriage. According to wife, the family court treated her claimed expenses as “ludicrous,” while it treated husband’s claimed expenses with respect. Wife also suggests that the court erred in determining husband’s after-tax income, although she offers little support for this argument.

¶ 38. The court may award maintenance, either rehabilitative or permanent, to a spouse when it finds that the spouse lacks sufficient income, property, or both, including property distributed pursuant to the divorce decree, to “provide for his or her reasonable needs” and the spouse is unable to support himself or herself “through appropriate employment at the standard of living established during the marriage.” 15 V.S.A. § 752(a); Chaker v. Chaker, 155 Vt. 20, 24-25, 581 A.2d 737, 740-41 (1990). The maintenance must be in the amount and for the duration the court deems just, based on the consideration of seven nonexclusive factors. 15 V.S.A. § 752(b). Once the family court finds grounds for awarding maintenance, it has broad discretion in determining the duration and amount. Chaker, 155 Vt. at 25, 581 A.2d at 740. A maintenance award will be set aside only if there is no reasonable basis to support it. Id.

¶ 39. The court’s maintenance award was reasonable here. The court considered the statutory factors, and made numerous findings that support its order. As noted above, the court fashioned its distribution of the parties’ assets, in combination with its award of spousal maintenance, to allow wife to maintain a lifestyle commensurate with that established during the marriage. The court agreed with the parties that wife should receive a permanent award of spousal maintenance based on the length of the marriage, the age of the parties, wife’s limited ability to establish herself in the workplace 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.

¶ 40. In determining the appropriate amount of maintenance, the court rejected wife’s claimed monthly expenses as grossly exaggerated and found that she had also included items that should not have been included as estimated expenses.⁴ Wife stated that she needed $4000 per month for “vacation and travel with the children,” for example, which the court found ludicrous. The court concluded that wife’s monthly expense statement was more of a “wish list” than a realistic estimate of what her expenses had been or would be in the future. The court noted that, to her credit, wife admitted that her expenses were an “estimate,” but, at the same time, she had used these expenses as a basis for her maintenance and property division requests. Thus, the court was put in the position of determining what her reasonable needs were at the lifestyle established by the parties during the marriage, taking into account husband’s ability to pay spousal maintenance.

¶ 41. The court concluded that, in light of its distribution of the marital estate and considering the factors set forth in 15 V.S.A. § 752, wife’s reasonable needs, in addition to the court’s property division, were approximately $6000 per month. The court found that wife currently had no income, other than the temporary spousal maintenance that she had been receiving. Although wife had indicated that she would like to become employed, the court found that, due to the amount of time that she had been out of the workplace and the relatively short time available to her to establish herself, it could not anticipate that her earnings in the future would be substantial.

¶ 42. Turning to husband’s income, the court found that the evidence presented a difficult task of determining what husband’s actual available income had been in the past and what it would be in the future. The court explained that the vast majority of husband’s reported income was “pass through” income, i.e., income that he was required to report for tax purposes but was not necessarily distributed to him. The court found that only rarely had husband received the income from the hotel properties that he had reported on his tax returns, and there was no correlation between each individual hotel property’s income and the amount that he might have actually received from that particular property. In light of the difficulty in ascertaining husband’s available income from his tax returns, the court relied on husband’s testimony, which it found credible, that he regularly received $20,275 in monthly cash distributions from numerous promissory notes, the Springfield Holiday Inn, an investment account, and the Lawrence Kasser Irrevocable Trust. In light of other evidence presented at trial regarding income available to husband, the court found that husband had a regular monthly income of $25,000.

¶ 43. Husband claimed $33,446 in monthly expenses, including approximately $9200 per month in educational and related expenses for the children. The court did not accept all of husband’s expenses as reasonably necessary, although it noted that he had been actually paying these expenses. For example, the court found that husband should have excluded a monthly expenditure for income taxes and alimony payments. The court noted that, to husband’s credit, he had not included any personal items such as food, clothing, or entertainment in his list of expenses. The court also found that husband had agreed, without objection from wife, to pay for the education of the parties’ adult children, even though the court would be considering this as a factor in the distribution of marital assets and the amount of spousal maintenance that would be ordered. Husband had also agreed to pay the full cost of the minor child’s education through college, which the court considered in the income-expense analysis. Based on its findings, the court determined that husband’s reasonable personal expenses were $15,000 per month.

¶ 44. Pursuant to the court’s order, wife will receive $78,000 per year in spousal support as of July 1, 2003, which increases to $90,000 per year as of July 1, 2006. This represents between approximately 65%-75% of husband’s discretionary income of $10,000 per month, after expenses. Husband must maintain a health insurance policy for wife — not an inexpensive proposition. Wife’s complaint that she is unable to enjoy the lifestyle that she did during the marriage is largely undermined by her failure to prepare a realistic estimate of her monthly expenses. As the trial court explained, it was forced to make this determination on her behalf. The court’s maintenance award, together with its imposition of a 6% interest rate on the $300,000 cash portion of the property distribution, provides wife with an annual income stream of more than $90,000 during the first two years, more than $100,000 during the next three years, and over $90,000 for the five years that follow. This is separate from the other $30,000 per year to be paid over ten years, which was awarded as part of wife’s share of the marital estate. Wife will then continue to receive at least $90,000 in maintenance per year. The court found that husband’s annual income, after expenses, was reasonably estimated in the range of $120,000. After deducting husband’s annual maintenance payments to wife of between $75,000 and $90,000, husband is left with an annual discretionary income of between $45,000 and $30,000. Absent reliable evidence to prove that wife’s reasonable expenses, or husband’s disposable income, significantly exceeded what was presented, the maintenance award was not patently inequitable.

¶ 45. Finally, wife argues that the court abused its discretion by ordering husband to pay only $20,000 of her remaining expert witness fees. She complains that no evidence was taken on the “reasonableness” of the fees. According to wife, the family court, without any evidence, reduced husband’s obligation to one-half of the expert witness fees.

¶ 46. We find this argument without merit. Pursuant to the temporary order, husband was obligated to pay the “reasonable expenses” of wife’s expert. The parties agreed to brief the question of the reasonableness of the fees, and they exchanged motions on this issue. The court found that, on its face, the expert’s $49,000 bill appeared excessive, and certain billed items went beyond the stated purpose of the temporary order. The court explained that the expert’s presence during the five-day trial was not reasonably necessary. Additionally, it noted that the expert’s testimony had not been particularly valuable or, indeed, even accurate. The court stated that husband had already paid over $50,000 in attorneys’ fees for wife, as well as over $11,000 in expert witness fees. Based on its findings, the court reasoned that, given the money that wife had had available to her during the divorce proceedings for her purely personal needs, as well as the amount of maintenance and marital assets that she received, and also considering husband’s ability to contribute, it was fair that husband bear a portion of the expenses, and that wife pay a portion. The court acted within its discretion in reaching this conclusion.

Affirmed.

1 Although it does not appear that the parties reduced their stipulation to writing, neither party challenges the family court’s characterization of their pretrial agreement.

2 We note that, while the court refused to consider the value of the children’s trusts directly as a marital asset in distributing the overall marital estate, it did consider the trusts as a source of possible income to husband to meet his overall obligations.

3 We note that the family court proposed submitting the issues of the valuation of husband’s hotel interests as well as a determination of husband’s yearly income to a master pursuant to V.R.C.P. 53 and V.R.F.P. 4(a)(1). Husband agreed with this proposal but wife refused. Given wife’s refusal, the court could not refer the matter to a master absent a showing that the referral was required by “some exceptional condition” or was otherwise provided for by law. V.R.C.P. 53(b)(2).

4 In her financial affidavit, dated August 2002, wife claimed monthly expenses of $33,461.