Atwood v. Atwood, 82-117
Decision Date | 06 September 1983 |
Docket Number | No. 82-117,82-117 |
Citation | 465 A.2d 1354,143 Vt. 298 |
Parties | Richard J. ATWOOD v. Lois M. ATWOOD. |
Court | Vermont Supreme Court |
Gilbert T. Normand, Montpelier, for plaintiff-appellee.
Edwin W. Free, Jr., of Richard E. Davis Associates, Inc., Barre, for defendant-appellant.
Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.
Defendant appeals from the property division order of the Washington Superior Court pursuant to a divorce decree. She specifically appeals from that portion of the judgment disposing of the 14.4 acre parcel of real estate acquired during the marriage.
At the time of the trial the parties owned, as tenants by the entirety, 14.4 acres of land in Waterbury Center, Vermont. Located on this property was a dwelling house and a large two story barn. They acquired the property in 1979. Defendant and the three children have been living there alone since the parties separated on February 1, 1981.
At trial, the disposition of the 14.4 acre parcel was hotly disputed. Plaintiff proposed that defendant be given 8.4 acres together with the house and barn, and that the remaining 6 acres be divided into three 2 acre parcels, which would be sold and the proceeds placed in an interest bearing account for the benefit of the children. In regard to his proposal, plaintiff submitted plaintiff's exhibit number four--a hand drawn sketch of the parcel which showed how it could be divided into one 8.4 acre lot and three 2 acre lots. Defendant rejected plaintiff's proposal and testified that she wanted the whole 14.4 acres awarded to her.
On January 11, 1982, the superior court filed an order concerning the distribution of property between plaintiff and defendant. The order read, in pertinent part, as follows:
The homestead and 8.4 acres, more or less, as shown on Exhibit 4 and located in Waterbury, Vermont is awarded to Defendant subject to her assuming the indebtedness thereon, maintenance and taxes.
The three, two-acre parcels and a suitable right of way as shown on Exhibit 4 is awarded to Plaintiff which property shall be sold as soon as reasonably possible, the net proceeds invested and the interest used to pay child support as ordered.
Defendant argues that the court's order is not supported by the evidence and is incapable of performance, and therefore constitutes an abuse of discretion. We agree and reverse.
Trial court's have wide discretion within the limits of 15 V.S.A. § 751, the statute governing disposition of marital property, in formulating awards of property upon divorce. Field v. Field, 139 Vt. 242, 244, 427 A.2d 350, 352 (1981).
Upon appellate review we will not interfere if a reasonable evidentiary basis supports the court's findings and the findings are sufficient to support the conclusions of law, but we have recognized that because "a decree relative to property is final and not subject to modification, ... the wide discretion given to the trial court in this area must be tempered when the distribution reflects inadequate findings."
Emmons v. Emmons, 141 Vt. 508, 511, 450 A.2d 1113, 1115 (1982), (quoting Field v. Field, supra ).
In the instant case the parties waived findings of fact, and therefore we must assume that the trial court made all the...
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