Boone v. Boone
| Decision Date | 04 February 1975 |
| Docket Number | No. 24-74,24-74 |
| Citation | 133 Vt. 170,333 A.2d 98 |
| Parties | Priscilla B. BOONE v. Arthur R. BOONE. |
| Court | Vermont Supreme Court |
Theodore S. Mandeveille, Jr., Bishop & Crowley, Rutland, for plaintiff.
Arthur R. Boone, pro se.
Before BARNEY, C. J., and SMITH, KEYSER, DALEY and LARROW, JJ.
This is a divorce matter. The libelee-husband contests before this Court the propriety of granting any divorce at all, the support provisions for the wife and their only child, and the award of custody and visitation rights, all as set out in the court's order.
The divorce was adjudicated under the provisions of 15 V.S.A. § 551(7), which allows the granting of a divorce under the following circumstances:
(7) When a married person has lived apart from his or her spouse for six consecutive months and the court finds that the resumption of marital relations is not reasonably probable.
This statute falls among those classified as 'no fault' divorce provisions. The function of the trial court remains little changed, however, since it must still evaluate the evidence before it and determine whether the dissolution of the marriage is justifiable in the light of the statutory requirements. Likewise, the function of this Court, to review those determinations with the view of sustaining them if the evidence permits, is not altered. Valeo v. Valeo, 132 Vt. 526, 530, 322 A.2d 306 (1974).
The libelee-husband was represented by counsel in the proceedings below, but elected to conduct his own case before this Court. He argued ably and presented the Court with an extensive and scholarly brief in due form in support of the issues he sought to raise. He has a background in the ministry and is presently executive secretary of the Human Rights Commission of the State of Rhode Island. Undoubtedly this gives him more than usual understanding and awareness of the most recent developments in this field.
He first questions the granting of the divorce itself. He does so on two grounds. The first relates to a claim of lack of factual foundation for granting a divorce under applicable law. The second directly challenges 15 V.S.A. § 551(7) as violating the due process rights of the libelee under the Fourteenth Amendment for two reasons: (1) because the statute, in his view, raises an irrebuttable presumption, since there is no evidentiary way that a libelee can contest the conclusion 'that the resumption of marital relations is not reasonably probable'; and (2) that, in terms of translation into any sort of defense, this phrase is so uncertain in meaning as to be void for vagueness.
Turning first to the issue relating to the quantum and quality of the evidence upon which the decree of divorce depends, this Court, after examination of the record, can only say that it is adequate. A detailed recitation of the evidence relating to counseling attempts, marital and otherwise, personal conflicts, and events leading up to the separation which had persisted for more than eighteen months at the time of hearing, would add little to the opinion. This is particularly so since they represent sufficient evidence to support the factual determination sustaining the decree, and prevent this Court from rejecting it based on any evidentiary shortage. Wetmore v. Wetmore, 129 Vt. 583, 584, 285 A.2d 711 (1971).
The short answer to the due process objection to the granting of the divorce below is that it admittedly was not raised before that tribunal. However, in further answer to the point, the test of the reasonable probability of the resumption of marital relations has a long history in the domestic relations law of this State, enough so that it has the patina of a phrase of art. As so defined it has too long stood legal test to be condemned for uncertainty.
Moreover, as was stated in Place v. Place, 129 Vt. 326, 329, 278 A.2d 710 (1971), the State has the right to prescribe the conditions and causes by which the marriage relationship may be dissolved. There is no illegality or irrationality for the State to impose upon a libelee the burden of persuading the trial court that there is still a prospect for restoration of the marriage. This surely is intended as a safeguard against whimsical or petulant divorce actions. It is within the power of the State, consistent with appropriate policy objections, to allow marital severance for lesser or different reasons. So that, finally, the libelee's point comes down to no more than the assigning of evidentiary responsibility in an area where the State has full authority to do so. No constitutional shortcoming appears here.
With respect to alimony, the decree in this case does not delineate how much of the $135.00 per week is attributable to support of the then four-year-old minor daughter of the parties and how much is for the support of the libelant herself. As is...
To continue reading
Request your trial
-
Palmer v. Palmer, 229-79
...again, a matter for the trial court's discretion, as it has before it "the freshest revelations of family relations." Boone v. Boone, supra, 133 Vt. at 174, 333 A.2d at 101. Unless the exercise of this discretion is shown to be clearly unreasonable or untenable, the trial court's decision w......
-
Zweig v. Zweig, 89-120
...is over. It is the function of this Court to review and uphold judgments granting divorce if the record permits. Boone v. Boone, 133 Vt. 170, 171, 333 A.2d 98, 99 (1975). The trial court's determinations are fully supported by the With respect to the issue of maintenance, this Court defers ......
-
Emmons v. Emmons, 334-80
...factor in arriving at a just and equitable division. Senesac v. Senesac, 135 Vt. 24, 25, 370 A.2d 214, 215 (1976); Boone v. Boone, 133 Vt. 170, 173, 333 A.2d 98, 100 (1975). Trial courts have wide discretion within the limits of 15 V.S.A. § 751 in formulating awards of property. Field v. Fi......
-
Gazo v. Gazo
...rights of visitation can become a nightmare for both parents and a disaster for the child or children involved." Boone v. Boone, 133 Vt. 170, 174, 333 A.2d 98, 101 (1975). The evidence here supported the family court's finding that defendant showed that tolerance and understanding, but plai......
-
Ruminations
...[36] Shedrick v. Department of Social Welfare, 158 Vt. 541,544(1992) [37] Bouvier v. Wilson, 139 Vt. 494 (1981); Boone v. Boone, 133 Vt. 170 (1975); Dutton v. Department of Social Welfare, 168 Vt. 281 (1998). [38] Best, supra note 33, at 23. [39] Id. at 2. [40] Miller-Jenkins v. Miller-Jenk......