Albarelli v. Albarelli

• Decision Date: 30 June 1989
• Docket Number: No. 88-559,88-559
• Citation: 564 A.2d 598,152 Vt. 46
• Parties: Barbara J. ALBARELLI v. Patrick J. ALBARELLI.
• Court: Vermont Supreme Court

Page 598

564 A.2d 598

152 Vt. 46

Barbara J. ALBARELLI v. Patrick J. ALBARELLI.

No. 88-559.

Supreme Court of Vermont.

June 30, 1989.

Blais, Cain, Keller & Fowler, Inc., Burlington, for plaintiff-appellee.

Jarvis & Kaplan, Burlington, for defendant-appellant.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

GIBSON, Justice.

Defendant husband appeals from a divorce decree of the Chittenden Superior Court on the issues of property division and child support. We affirm.

The parties owned a duplex residence in Colchester, which was decreed to plaintiff, and a duplex in Burlington, which the court awarded to defendant. Prior to the final hearing, the parties sold a parcel of land they had owned in Eden, and defendant removed from it a quantity of lumber worth approximately $4,000. The court ordered defendant to pay plaintiff $8,437.90, which was calculated to be half of the difference in equity between the two residential properties plus half of the net proceeds from the sale of the Eden land and half the value of the lumber.

Defendant does not question the formula for equal division of the assets in question but argues that the values assigned by the court to the residential properties were stale at the time of the August 22, 1988 hearing. Specifically, defendant contends that the valuations relied on by the court in reaching its decision--those offered by plaintiff--were based on appraisals more than a year old at the date of trial. He argues that the use of current values would have increased plaintiff's equity by some $16,000 while lowering his own by $1,700.

As a general proposition, marital assets should be valued as close to the date of trial as possible. See Dobbyn v. Dobbyn, 57 Md.App. 662, 676, 471 A.2d 1068, 1075 (1984); Taylor v. Taylor, 736 S.W.2d 388, 391 (Mo.1987). While our case law has not previously spelled out such a principle with specificity, we recently held that relying on a valuation of marital property conducted three years before trial constituted an abuse of discretion by the trial court. Cleverly v. Cleverly, 151 Vt. 351, ----, 561 A.2d 99, 101 (1989). We think that this principle is the one most consistent with the mandate of 15 V.S.A. § 751(a) that the trial court "equitably divide and assign the property," and the one that best promotes fairness in the imprecise task of setting valuations.

Defendant's reliance on the principle just stated is without merit, however, since the court relied not on the appraisals which he calls "stale," but on plaintiff's contemporaneous testimony. At trial, defendant objected to the introduction of the appraisals themselves on hearsay grounds, and the objection was sustained. Nevertheless, the plaintiff herself testified as to her opinion of the value of both parcels of land. While it is clear that her testimony as to valuation relied significantly on the inadmissible appraisals, the testimony was hers, and she was competent to offer it. 12 V.S.A. § 1604; Jackson v. Jackson, 139 Vt. 548, 550, 432 A.2d 1181, 1182 (1981). As a co-owner, she was familiar with both properties, and was not totally dependent on the opinions of others, as was the case in Enos v. Owens Slate Co., 104 Vt. 329, 337-38, 160 A. 185, 189 (1932), where the witness utterly lacked familiarity with the assets about whose value he testified. ^*

Moreover, defendant did not cross-examine plaintiff or introduce contrary evidence and is not, therefore, in a position to challenge the court's determination on the valuations in question. See In re Marriage of Hopkins, 142 Cal.App.3d 350, 361, 191 Cal.Rptr. 70, 78 (1983); Rosenberg v. Rosenberg, 64 Md.App. 487, 508, 497 A.2d 485, 495, cert. denied, 305 Md. 107, 501 A.2d 845 (1985). Shortly after the trial, defendant obtained his own appraisals of the properties, but they were not part of the record below and will not be considered on appeal.

De...