Bero v. Bero, 299-75

Docket NºNo. 299-75
Citation367 A.2d 165, 134 Vt. 533
Case DateOctober 29, 1976
CourtUnited States State Supreme Court of Vermont

Wool & Murdoch, Burlington, for plaintiff.

Robert G. Bliss, Sr., of Tyler & Bruce, St. Albans, for defendant.

Before BARNEY, C. J., SMITH, DALEY and LARROW, JJ., and KEYSER, J. (Ret.), Specially Assigned.

BARNEY, Chief Justice.

The plaintiff was granted a divorce on the ground that the parties had lived separate and apart for six consecutive months and the resumption of marital relations was not reasonably probable. He appeals from those portions of the final order requiring him to pay the defendant a total of $45 per week for the parties' three minor children, $12,500 for her interest in real estate found to be worth $30,000 decreed to him, and $8,500 within three months in lieu of alimony.

His claim is that the source of his major asset out of which these payments must come made it unreachable by the trial court. The award in lieu of alimony, he contends, is particularly inappropriate where the defendant had not asked for alimony in her counterclaim for divorce. Finally, this lump sum payment award allegedly amounts to an abuse of discretion by the lower court.

Plaintiff has conceded that Vermont law permits a court to make an alimony award even in circumstances where it is not requested. A majority of this Court has recently held that an unrequested alimony award is not always proper. Nichols v. Nichols, 133 Vt. 370, 340 A.2d 73 (1975). In Nichols the appellant had been the defendant below, and he had received no notice that alimony was an issue nor given an opportunity to be heard thereon. A request for alimony had been struck from the printed form used by the plaintiff, and the issue did not appear in the temporary order or the transcript. Under these circumstances, the portion of the final order awarding alimony was reversed on appeal. Id. at 371, 340 A.2d 73.

Under the circumstances of the instant case, however, Nichols cannot control. The appellant was the plaintiff below, and his original petition requested that the court grant him a suitable portion of the property of the parties. The defendant's counterclaim as it appears in the actual record (unlike those of the same date reproduced in the printed case) requested, in addition to a bill of divorce, 'such further relief as seems just'. These factors are arguable sufficient for the court to consider an alimony award under 15 V.S.A. § 754. But, beyond these, alimony was provided in the temporary order based upon a stipulation of the parties, and the transcript reveals that the lump sum payment in lieu of alimony was requested, and contested, during the trial.

While the parties were still living together, the plaintiff was severely injured in a motorcycle accident. Shortly after he began the divorce action, he received a net settlement of a tort action arising out of this accident amounting to $143,000. Cit...

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23 cases
  • Lopiano v. Lopiano, (SC 15899)
    • United States
    • Supreme Court of Connecticut
    • 29 December 1998
    ...(1980); Maricle v. Maricle, 221 Neb. 552, 378 N.W.2d 855 (1985); Platek v. Platek, 309 Pa. Super. 16, 454 A.2d 1059 (1982); Bero v. Bero, 134 Vt. 533, 367 A.2d 165 None of these approaches mirrors exactly how courts in this state view their authority in dissolution proceedings. In Connectic......
  • Johnson v. Johnson, 471PA85
    • United States
    • United States State Supreme Court of North Carolina
    • 12 August 1986
    ...689 S.W.2d 383 (Mo.App.1985) (F.E.L.A. settlement); Landwehr v. Landwehr, 200 N.J.Super. 56, 490 A.2d 342 (1985); Bero v. Bero, 134 Vt. 533, 367 A.2d 165 (1976). But see Ettinger v. Ettinger, 107 Misc.2d 675, 435 N.Y.S.2d 916 (N.Y.Sup.Ct.1981); N.Y.Dom.Rel.Law § 236(B)(1)(d)(2) (McKinney Su......
    • United States
    • Court of Appeals of Columbia District
    • 5 February 1997
    ...pardon,] the undesirable fact of criminal conduct might still be of concern on the issue of probable fidelity to ethical standards." Id. 367 A.2d at 165. As the Supreme Court of Florida explained in State v. Snyder, 136 Fla. 875, 187 So. 381 (1939), "the very fact of embezzlement is cause f......
  • Weisfeld v. Weisfeld, 86-2038
    • United States
    • Court of Appeal of Florida (US)
    • 8 September 1987
    ...Landwehr, 200 N.J.Super. 56, 490 A.2d 342 (1985) (same); Platek v. Platek, 309 Pa.Super. 16, 454 A.2d 1059 (1982) (same); Bero v. Bero, 134 Vt. 533, 367 A.2d 165 (1976) (same); Brown v. Brown, 100 Wash.2d 729, 675 P.2d 1207 (1984) (same); cf. Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla......
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