vanLoon v. vanLoon

315 A.2d 866, 132 Vt. 236, 1974 Vt. LEXIS 327
CourtSupreme Court of Vermont
DecidedFebruary 5, 1974
DocketNo. 119-73
StatusPublished
Cited by19 cases

This text of 315 A.2d 866 (vanLoon v. vanLoon) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
vanLoon v. vanLoon, 315 A.2d 866, 132 Vt. 236, 1974 Vt. LEXIS 327 (Vt. 1974).

Opinion

Daley, J.

The plaintiff was granted a decree of divorce from the defendant in the Washington County Court on June 12, 1973. In its decree granting the divorce, which awarded custody of the two minor children to the plaintiff, the court made the following orders:

(3) In view of the income of the plaintiff, both present and potential, no order will be made relative to payment of any support monies by the defendant in this case.
(4) The jointly owned property of the parties which includes the homestead and twelve (12) acres more or less, and an approximately thirty (30) acre parcel located on the access road to the Glen Ellen Ski Area are to be sold immediately. However, it is the condition of this Order that in no event shall either party be permitted to purchase either directly or indirectly by any structure or through any other individual any interest in either the homestead or the thirty-acre parcel referred to above. All monies resulting from the sale of these properties shall be divided equally between the parties hereto after deduction for the amounts of any [238]*238and all mortgages, attachments, liens, etc., likewise including a deduction for costs of sale in connection with the sale of the two parcels hereinbefore referred to.
(5) It is likewise ordered that all personal property which is not unique to either of the parties shall be sold and that,. likewise, the monies received from the sale, less any costs of sale, shall be divided between the parties hereto.

The plaintiff contends these orders to be unreasonable, arbitrary, and unjust, thereby constituting an abuse of judicial discretion. The plaintiff concedes that in making the orders as it did, the court was vested with a wide judicial discretion under our cases, so our inquiry is confined to the question of whether or not such discretion was abused. The recognized test in this State has 'been recently enunciated in Brooks v. Brooks, 131 Vt. 86, 92-93, 300 A.2d 531 (1973):

[T]he appellant must show that the court failed to exercise its discretion, or that its discretion was exercised on reasons clearly untenable, or to an extent clearly unreasonable. Central Cab, Inc. v. Ironside, 126 Vt. 356, 361, 230 A.2d 790 (1967); McCutcheon v. Leonard, 114 Vt. 38, 40, 39 A.2d 348 (1944). So long as a reasonable basis for the discretionary action of the trial court is shown to be present, this Court will not interfere. Lattrell v. Swain, 127 Vt. 33, 41, 239 A.2d 195 (1968); Grow v. Wolcott, 123 Vt. 490, 496, 194 A.2d 403 (1963).

The plaintiff is a successful business woman, who at the time of separation and for a few years prior to the divorce hearing, was conducting a real estate business in which she averaged a return of approximately twenty thousand dollars a year. She also held a thirty-five per cent interest in the Glen Ellen Corporation, receiving fees of approximately sixteen hundred dollars a month. The defendant was a builder of homes in a ski area; however, his business enterprise was not financially successful.

At the time of the parties’ separation in January, 1971, they jointly owned a home and twelve acres of land in Fayston, Vermont. The homestead and land was appraised at a value of between eighty thousand and ninety thousand dollars; the court found the value to be eighty-five thousand dollars. It [239]*239was encumbered by a thirty thousand dollar mortgage and a six thousand dollar attachment. The parties also jointly owned a thirty-acre undeveloped parcel of land contiguous to the Glen Ellen ski area. This land was appraised at one hundred and five thousand dollars. It was encumbered by a purchase price mortgage of approximately seventeen thousand dollars and an eighteen thousand dollar attachment lien.

The personal property of the parties was valued at approximately ten thousand dollars. The defendant’s equity in his tools of trade approximated five thousand dollars.

The defendant employed a receivable account due him from the Donalds as a down payment on property which he acquired from them. He did not hold legal title to this property at the time of the divorce hearing. It was purchased by him subsequent to the separation, and title was transferred to his father for an antecedent debt. Although not found by the court, the record discloses that the purchase price was fifty thousand dollars; the defendant purchased the property by giving credit for the Donald receivable account, assuming a thirty-five thousand dollar bank mortgage, and giving a second mortgage for the balance upon which approximately nine thousand dollars was due at the time of hearing. The defendant testified that the Donald property equity was in the vicinity of thirty thousand dollars, although he did not consider this as an asset because legal title was in his father.

The six thousand dollar attachment upon the homestead was for materials furnished in connection with the remodeling of the homestead. The eighteen thousand dollar encumbrance upon the thirty acres was for materials purchased by the defendant in connection with his business as a home builder.

When the parties acquired the so-called thirty acre lot, it consisted of forty acres. The parties bought this lot for development and investment. Two houses were built upon it and sold. The plaintiff, then a real estate broker, obtained the sale commissions.

The defendant maintained a building and design account. From this account were paid not only business material and labor expenses, but also family expenses.

The plaintiff deposited her real estate commissions in a separate account and in savings accounts in the names of the [240]*240children. A large share of the monies earned by the plaintiff were, with her consent, utilized to pay bills when the building and design account was insufficient to make the payments currently due.

Because of her contributions made during the marriage, the plaintiff urges an entitlement to more than half of the net proceeds resulting from the sales under the terms of the court order. The defendant urges the court to retain the equality of distribution, believing it to be fair and equitable. He does, however, join in objecting to so much of the court’s order which provides for an immediate sale of the real estate and the restrictive provisions preventing either party from purchasing any interest in either the homestead or the thirty-acre parcel.

The plaintiff contends that an equitable basis for division of the property would be the granting to her the homestead and land appurtenant thereto subject to her assumption of the encumbrances, which would result in an equity of approximately forty-nine thousand dollars. She would then pay to the defendant one-half of the net equity in the homestead. Against that payment, she would receive credit for one-half of the defendant’s tools and equipment (twenty-five hundred dollars) and one-half of the Donald receivable account (forty-five hundred dollars).

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VanLoon v. VanLoon
315 A.2d 866 (Supreme Court of Vermont, 1974)

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Bluebook (online)
315 A.2d 866, 132 Vt. 236, 1974 Vt. LEXIS 327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vanloon-v-vanloon-vt-1974.