Emmons v. Emmons, 334-80

• Decision Date: 09 August 1982
• Docket Number: No. 334-80,334-80
• Court: Vermont Supreme Court
• Parties: Phyllis Ann EMMONS v. Donald E. EMMONS.

Page 1113

450 A.2d 1113

141 Vt. 508

Phyllis Ann EMMONS v. Donald E. EMMONS.

No. 334-80.

Supreme Court of Vermont.

Aug. 9, 1982.

Paul, Frank & Collins, Inc., Burlington, for plaintiff-appellant.

Lisman & Lisman, Burlington, for defendant-appellee.

Before BARNEY, C. J., and BILLINGS, HILL, UNDERWOOD and PECK, JJ.

BILLINGS, Justice.

The plaintiff-appellant obtained a divorce decree from the defendant-appellee on the grounds the parties lived separate and apart for six consecutive months and the resumption of marital relations was not reasonably probable. 15 V.S.A. § 551(7). The trial court made findings of fact and decreed custody of the parties' youngest child, then age 16 years, to the defendant, the other child having already obtained majority, and further decreed the disposition of property. 15 V.S.A. § 751. Plaintiff appeals the award of the custody of the youngest child and the disposition of savings accounts, cash, investments, and an apartment building.

The custody issue is moot because the child involved is now of legal age, so we do not address that claim of error. The sole issue before us is whether the trial court erred in the distribution of marital assets.

Following two years of marital discord and unsuccessful attempts at reconciliation and counseling, plaintiff, who was an assistant professor at a nearby college, moved out of the parties' homestead and took up residence at one of the college's dormitories as a housemother. The parties had been married for twenty years during which time the plaintiff was gainfully employed outside the home for over fifteen years.

At the time of the decree the parties owned a house and fifteen acres of land with a net value of approximately $65,000. The parties agreed that the homestead would be sold as soon as the youngest child reached majority and the net proceeds divided. But the plaintiff claimed the property should be divided equally, while the defendant desired a two-third division to him and one-third to the plaintiff. In addition, the defendant owned an apartment house standing in his name alone with a net value of $55,000, and had approximately $49,300 in other assets, although the defendant disputed the $30,000 valuation for miscellaneous personal property set by the plaintiff. The plaintiff's property consisted of approximately $10,350 in stocks, bonds, cash, and miscellaneous personal property.

The trial court decreed that the net proceeds of the homestead be divided equally and the household furniture be divided as the parties agreed, or sold and the proceeds divided equally if the parties failed to agree. The parties did not appeal this part of the order. The trial court also ordered that all "savings accounts, money, or investments" be decreed to the party having possession and ownership thereof and decreed the apartment house property to the defendant. This part of the order resulted in a large disparity in the division of the property favoring the defendant. On appeal the plaintiff claims that the trial court abused its discretion in dividing the savings accounts, money, investments, and the apartment house unequally because two of its findings are not supported by the evidence: (1) the finding that the plaintiff "abandoned the home," and (2) the finding that there was no evidence from which the trial court could determine what savings and investments the parties had in their possession and their value.

15 V.S.A. § 751 provides that the disposition of marital property in divorce actions shall be "just and equitable, having regard to the respective merits of the parties, to the condition in which they shall be left by such divorce [and] to the party through whom the property was acquired." In the division of property the trial court may consider relevant fault or nonfault as a 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. 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, ¹ 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." Id. (citation omitted).

In the present case, the trial court's finding that the plaintiff had "abandoned the home" is not supported by the evidence. Plaintiff testified that she left the home because of irreconcilable differences with the defendant and because she realized that he would never be the one to move out. She stated that her leaving was "by mutual consent." The defendant testified that, although he believed she left because "she became more interested in her career than the house," he concurred in her decision to leave. This is the extent of the evidence on this issue. There was no evidence that the plaintiff suddenly disappeared unannounced without being heard from for a significant period of time, or failed to maintain contact with her children, or failed to provide any necessary financial support which might be expected under the circumstances. Merely leaving the homestead in and of itself is not sufficient to justify a finding of fault under 15 V.S.A. § 751. Such a result would substantially circumvent the no-fault divorce provision authorized by our statute. 15 V.S.A. § 551(7).

Our divorce statute provides under 15 V.S.A. § 551(7) for divorce without fault after a six month separation. 15 V.S.A. § 751 permits fault to be a factor in the division of the marital property. But, the two sections should not be read in isolation from one another. It is a fundamental rule of statutory construction that statutes dealing with the same subject matter should be construed with reference to each other as parts of one system. Villeneuve v. Town of Underhill, 130 Vt. 446, 453, 296 A.2d 192, 197 (1972). To hold that the mere act of separation itself can be grounds for a finding of fault under 15 V.S.A. § 751 is to take away with one hand what was given with the other. If this were the case, whoever left the homestead first for the purpose of obtaining a divorce under the six month separation provision, 15 V.S.A. § 551(7), would jeopardize his or her right to the marital property. This would thwart the clear legislative purpose of enacting 15 V.S.A. § 551(7). We are not deciding that fault can never be a factor in the division of property in no-fault divorces granted under 15 V.S.A. § 551(7). We are simply holding that the mere act of separation by itself cannot be grounds for a finding of fault under 15 V.S.A. § 751 in such cases.

The other finding challenged on appeal is also unsupported by the evidence. The trial court found as follows: "Each party has some savings and investments in their respective names and possession. There is no evidence from which the Court can find just what such personalty is or its value." This is clearly erroneous. The uncontradicted testimony of the parties establishes that at the time of the hearing the plaintiff held some $4,850 of savings and investments while defendant controlled approximately $19,300.

The trial court's reliance on these erroneous findings in dividing the property with such disparity was a clear abuse of discretion. Field, supra, 139 Vt. at 244, 427 A.2d at 352; Palmer v. Palmer, 138 Vt. 412, 416, 416 A.2d 143, 146 (1980). Because the trial court failed to carry out its duty to make a "just and equitable" division of the property as required by 15 V.S.A. § 751, a remand is necessitated. Field, supra, 139 Vt. at 245, 427 A.2d at 352.

Reversed and remanded for hearing on division of saving accounts, money and investments, and apartment property; affirmed as to the merits of the divorce and other property division.

PECK, Justice, dissenting.

My disagreement with the majority involves fundamentals. They have, I believe, intruded improperly into the trial court's prerogative of assessing credibility and finding facts; moreover, they have engaged in an exercise of statutory construction which, in my view, is not only fallacious, but serves no legitimate purpose, and finally, they have failed to analyze the record in the light of the statutory mandates of 15 V.S.A. § 751. Accordingly, I am compelled, respectfully, although not reluctantly, to dissent.

In reaching its conclusion the majority has relied heavily on modifying evidence which, of course, it should have excluded entirely. In appeals of this nature, we are required to view the evidence in the light most favorable to the prevailing party. Trudeau v. Conway, 139 Vt. 167, 168, 423 A.2d 854, 855 (1980). Both "[t]he weight and credibility of the evidence and its persuasive effect are for the trier of fact," not this Court. Id. at 168, 423 A.2d at 856. "As we have often stated, the trier of fact is given the sole determination of the weight of the evidence, the credibility of witnesses, and the persuasive effect of the testimony." Capital Candy Co. v. Savard, 135 Vt. 9, 12, 369 A.2d 1361, 1362 (1976). Furthermore, this Court has held frequently that the trial court has wide discretion in the distribution of property under § 751. The majority acknowledge this, but when confronted by a broad discretionary act on the part of the trial court, they ignore valid supporting evidence and legitimate findings based thereon, to criticize the act as unsupported, and as an abuse of discretion. In other words, they have evaded the spirit of these rules by the simple expedient of saying that certain important findings are not supported. In my view those findings are not only sufficient but amply supported by evidence,...