Chaker v. Chaker

• Decision Date: 10 August 1990
• Docket Number: No. 88-357,88-357
• Citation: 581 A.2d 737,155 Vt. 20
• Court: Vermont Supreme Court
• Parties: Ann L. CHAKER v. Mouhanad CHAKER.

Page 737

581 A.2d 737

155 Vt. 20

Ann L. CHAKER v. Mouhanad CHAKER.

No. 88-357.

Supreme Court of Vermont.

Aug. 10, 1990.

Jarvis and Kaplan, Burlington, for plaintiff-appellee.

Paul R. Morwood, Burlington, for defendant-appellant.

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

DOOLEY, Justice.

This divorce action is here for the second time. Following our reversal of the 1985 order, 147 Vt. 548, 520 A.2d 1005, the matter was heard on the merits during July and August of 1987, resulting in extensive findings and an order and decree resolving the property and maintenance issues presented by the parties. Defendant, Mouhanad Chaker, appeals, alleging two errors in the award of maintenance: (a) the court abused its discretion in including a maintenance escalation clause based solely on defendant's income; and (b) the court abused its discretion in awarding permanent maintenance. Defendant also argues that the court committed error in calculating the arrearages owed by defendant and in ordering defendant to pay plaintiff's attorneys' fees. We affirm the maintenance and attorney fees award but vacate and remand the arrearage and related property award.

The following is a summary of the relevant facts, based on extensive findings made by the trial court. Neither party has challenged these findings.

Plaintiff Ann Chaker, who is now fifty-five years of age, met defendant, now age thirty-nine, when he was attending an English language program at the University of Oklahoma as a foreign student from Syria. At the time the parties met, plaintiff owned and ran a rooming house for university students. They were married in July of 1975 (her fifth marriage, his first) and lived in Oklahoma until they moved to Pittsburgh, Pennsylvania in 1977 so that defendant could pursue a graduate degree. In 1979, they came to Burlington, Vermont where defendant started a job with IBM. They separated in 1984 and had no children.

The parties have never had great income or owned extensive property although defendant made about $45,000 per year when the divorce hearing was held in 1987. The trial court concluded that each party had contributed "approximately equally to the marital estate since the date of the marriage." Plaintiff's main contribution appears to be the proceeds from the sale of her Oklahoma rooming house. Defendant's main contribution appears to be his income since he became employed in 1979.

At the time of the marriage, the main asset of the parties was a home in Burlington, valued at $88,000, with an equity of about $45,000. Defendant was entitled to a pension at IBM, but it had not yet vested and there was no evidence of its value. Similarly, defendant had available a life insurance policy of uncertain value. The only other assets of the parties were personal property, including two automobiles.

Although she is a college graduate, plaintiff has not worked outside the home, but she helped defendant during his education, particularly with typing. At the time of the separation, plaintiff had an independent income of $670 per month, the bulk of which is a social security disability payment. Despite her receipt of disability benefits, plaintiff is capable of working and earning an income of approximately $1200 per month. Her monthly living expenses are about $1500 per month, including mortgage payments on the Burlington home.

Defendant's gross income from IBM of $45,000 per year is expected to increase in the future. His monthly living expenses at the time of the divorce hearing were about $1600 per month.

Plaintiff commenced this divorce action in 1984. A temporary hearing was held in September of 1984, resulting in an order giving plaintiff possession of the house and requiring defendant to pay the mortgage, taxes and insurance payments for the house. The order also required defendant to pay temporary maintenance of $625 per month, to cover plaintiff on his IBM health insurance policy and to maintain plaintiff as beneficiary on his IBM life insurance policy.

The final hearing was held in 1985 and resulted in a final order in May of that year. The order awarded the house to plaintiff and required defendant to pay maintenance at the rate of $1000 per month. It required defendant to maintain health insurance coverage for plaintiff and to maintain plaintiff as the beneficiary of the life insurance policy. It concluded that defendant had failed to pay $4883.31 under the temporary order and assessed this as an arrearage. It required defendant to pay plaintiff's attorneys' fees of about $5000.

Defendant appealed the final order, arguing that the court committed reversible error in allowing his counsel to withdraw during the merits hearing. This Court agreed and reversed and remanded for a new trial. Chaker v. Chaker, 147 Vt. 548, 520 A.2d 1005 (1986). The retrial was held in 1987 and resulted in a new order and decree on June 16, 1988. Plaintiff was awarded the Burlington home, but defendant was awarded a half interest in the equity or $22,500. Plaintiff was awarded maintenance of $700 per month for life or until she remarried or cohabited with an unrelated male. The maintenance award was increased yearly by the same percentage as defendant's gross annual income increased. Defendant was required to maintain plaintiff as his sole beneficiary on his life insurance policy and to cover plaintiff through his IBM health insurance policy.

The court found that since the 1985 order was reversed by this Court, arrearages should be calculated under the prior temporary order. On this basis, the court found that defendant owed an arrearage of $22,352. Since this amount was close to the value of defendant's equity in the Burlington house, the court offset one against the other. Thus, if defendant failed to pay the outstanding arrearage within thirty days, defendant's interest in the home was extinguished. Finally, defendant was required to pay plaintiff's attorneys' fees of $9,388.47 accrued up through the final hearing.

We start with the maintenance issues and consider first defendant's challenge to the award of permanent maintenance. On this point, defendant argues that the court abused its discretion in awarding permanent maintenance of $700 per month in view of its findings that plaintiff's reasonable living expenses were between $1500 and $1600 per month and she was capable of earning $1200 per month.

The relevant statute allows an award of maintenance, either rehabilitative or permanent, to a spouse where the court finds: (1) the spouse lacks sufficient income and/or property to "provide for his or her reasonable needs" and (2) the spouse is unable to support himself or herself "through appropriate employment at the standard of living established during the marriage." 15 V.S.A. § 752(a). The maintenance must be in the amount and for the duration the court deems just, based on the consideration of seven nonexclusive factors. See 15 V.S.A. § 752(b). Part of the purpose of the statute is to provide spousal support in relation to the standard of living established during the marriage. See Klein v. Klein, 150 Vt. 466, 473-74, 555 A.2d 382, 387 (1988) (Klein I ); McCrea v. McCrea, 150 Vt. 204, 207, 552 A.2d 392, 394 (1988) (reasonable needs as set forth in § 752(a)(1) are determined in relation to the standard of living established during the marriage). Another purpose is to recompense a homemaker for contributions made during the marriage. We have also recently held that the statute is flexible enough to allow its use in appropriate cases "to balance equities whenever the financial contributions of one spouse enable the other spouse to enhance his or her future earning capacity." Downs v. Downs, 154 Vt. 161, ---, 574 A.2d 156, 159 (1990).

Once the trial court finds grounds for awarding maintenance, it has broad discretion in determining the duration and amount. See Klein I, 150 Vt. at 472-73, 476, 555 A.2d at 386, 388. A maintenance award will be set aside only if there is no reasonable basis to support it. See Quesnel v. Quesnel, 150 Vt. 149, 151, 549 A.2d 644, 646 (1988). In Downs v. Downs, 154 Vt. at ---, 574 A.2d at 159, we emphasized the breadth of the trial court's power in concluding that it could consider the increased earning capacity of a professional degree in determining an award of maintenance where the spouse's contribution to obtaining the degree is not reflected in the property award.

The breadth of the trial court's discretion is further demonstrated by two cases with facts similar to this case. In Buttura v. Buttura, 143 Vt. 95, 463 A.2d 229 (1983), we affirmed an award of permanent alimony in the face of an argument that plaintiff was meeting her reasonable needs through employment. In doing so, we relied upon "the vast inequality between the parties' financial positions." Id. at 99, 463 A.2d at 231. In Belanger v. Belanger, 148 Vt. 202, 204-05, 531 A.2d 912, 914 (1987), we affirmed time-limited rehabilitative maintenance in similar circumstances where the trial court's purpose was to give plaintiff the opportunity to establish herself financially since she had marketable skills.

A number of factors support the award of permanent maintenance in this case. Although the court found that plaintiff is capable of employment, she is 55 years of age and has not worked outside the home for many years. See 15 V.S.A. § 752(b)(5). She has a back problem for which she receives social security disability payments. The trial court found that plaintiff would lose her social security disability benefits if she went to work. It also found that defendant's earning capacity was "easily three times that of plaintiff" and would become "easily ... five times that of the plaintiff." In addition, plaintiff was the homemaker and supported defendant's efforts to learn English and become educated in the United States to obtain the earning capacity he now enjoys. The trial court evaluated each of the factors in ...