Gravel v. Gravel

• Decision Date: 24 July 2009
• Docket Number: No. 07-486.,07-486.
• Citation: 980 A.2d 242,2009 VT 77
• Parties: Suzanne GRAVEL v. Richard GRAVEL.
• Court: Vermont Supreme Court

980 A.2d 242

2009 VT 77

Suzanne GRAVEL v. Richard GRAVEL.

No. 07-486.

Supreme Court of Vermont.

July 24, 2009.

Benjamin W. King of Downs Rachlin Martin, PLLC, Burlington, for Plaintiff-Appellee.

Sheldon M. Katz of Clark, Werner & Flynn, P.C., Burlington, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

¶ 1. DOOLEY, J.

In this contested divorce action, husband appeals from the family court's maintenance award and division of marital assets. As for the division of assets, husband argues that wife's portion of the property division was excessive, that the family court erred in applying the statutory factors listed in 15 V.S.A. § 751(b), and that the court erred in its valuation of husband's business. With respect to the maintenance award, husband argues that it is unsupported by the record and is excessive in both duration and amount. Husband further argues that the court erred in not awarding wife the parties' small business in lieu of maintenance. Husband also argues that the court wrongfully held him in contempt. We affirm.

¶ 2. Husband and wife were married in 1993, and the marriage lasted thirteen years. At the time of the divorce, wife was forty-nine years old and husband was forty-eight. The parties owned two significant assets: the marital house and Northeast Handling Systems, Inc. (NHS), husband's crane sales, service, and maintenance business. The parties contested the fair market value of NHS, with both relying on the opinion of an expert witness. Wife's expert initially valued NHS at $153,000, and husband's opined that NHS was worth $85,000-125,000. As the testimony progressed, an issue arose regarding the proper year in which to credit an account receivable of approximately $110,000 and the effect the year of inclusion had on the experts' valuations. The business had credited this receivable to 2007, but wife's expert eventually testified that it should have been credited to 2006, and, as a result, that the valuation of NHS should be increased to $281,000. To ensure that the issue was properly developed, the court recessed the hearing and ordered the parties to engage in additional discovery with respect to the account receivable. Three months later the hearing resumed and the court heard additional testimony, but excluded the testimony of a new and additional expert witness offered by husband. Finding wife's expert more qualified and her opinion more reliable, the court adopted wife's expert's opinion and determined that NHS's fair market value was $281,000.

¶ 3. The family court decided to divide equally the value of the parties' two significant assets. The court awarded wife sole ownership of the marital home and husband sole ownership of NHS. The court awarded wife $70,000 to compensate for the disparity in the value of these two assets. The court ordered husband to pay wife a monthly sum, plus three percent interest, to pay off this debt over ten years.

¶ 4. The court determined that husband earned about $5,000 per month working at NHS, and wife earned $1,907 per month working at a convenience store. The court awarded wife $1,500 per month for ten years in spousal maintenance.

¶ 5. After the court issued its written findings, husband moved for the court to correct errors or to order a new trial. The court considered husband's various arguments and rejected them in a written decision. Husband subsequently filed a motion to alter or amend the final order, requesting that the court award wife NHS in lieu of spousal maintenance. The court denied this motion.

¶ 6. Wife filed a motion for contempt and sanctions predicated on husband's failure to pay the amounts owed to her under the court's order. The family court found husband in contempt for nonpayment and ordered husband jailed daily from 5 p.m. to 5 a.m. until he paid this amount. Husband purged this contempt two days later. Husband appeals the division of marital assets, the maintenance award, and the contempt order.

¶ 7. Before we discuss the merits of this appeal, we address the approach husband's counsel has taken to this appeal. The arguments made in husband's brief refer to the trial judge personally by name and leave the impression that the judge, rather than wife, or her counsel, is husband's adversary. Indeed, husband's brief commences with the general accusation that husband's trial counsel, "if subpoenaed," would state that the judge "demonstrated a bias against [husband] off the record and engaged in improper conduct" and conducted the trial "in a biased manner." Husband's counsel argues in various ways that a normal standard of review should not apply to the decisions of a trial judge guilty of such misconduct. These kinds of statements are inappropriate in an appellate brief, and we warn husband's counsel that we consider them to be beyond the limit of proper advocacy. Wife is entitled to a decision based on the merits of the issues before us and not on husband's counsel's personal displeasure with the trial judge. We will accord the trial court discretion in its rulings where appropriate under our standard of review, despite counsel's improper assault on the judge's integrity.

¶ 8. We first address the property division and particularly the valuation of the marital assets. As noted, there were two significant assets in this case: the marital home and NHS. All the valuation issues relate to NHS and most involve the court's decision, as discussed above, that some of the accounts receivable had been allocated to the wrong year for purposes of determining the income of NHS from which the business could be valued by the income capitalization method. Husband argued that because both the work and the income from the work occurred in 2007 the receivable should be credited to that year and not to 2006. He further argued that such receivables had been credited to the later year in the past and, although this receivable was much larger than had occurred in the past, its allocation followed past practice. The effect of this action, however, was to place extraordinary income beyond the time period for which a valuation could be determined.

¶ 9. Wife's valuation expert first offered a valuation consistent with treating the receivable as outside the valuation year of 2006, but questioned the allocation of the receivable to the later year. She testified that if the receivable were allocated to 2006, her opinion of the value of NHS would be much higher. As a result of this testimony, the trial court declared a three-month recess to allow wife discovery related to the proper year to which the receivable should be credited. This opening of the valuation issue caused husband to employ an additional expert witness to testify that the assignment of the receivable to 2007 was proper, but husband failed to disclose this witness until the eve of trial. Because of the late disclosure, the trial court as a discovery sanction refused to allow the expert to testify.

¶ 10. Husband raises two evidentiary issues with respect to the valuation: (1) the court erred in ruling that the testimony of husband's expert was irrelevant and therefore inadmissible, and (2) the court erred in prohibiting husband from cross-examining wife's expert witness. These arguments are puzzling because they do not reflect what actually happened. The testimony of the expert was excluded as a discovery sanction because husband failed to timely disclose this witness; he makes no argument here that the sanction was unsupported or excessive. Husband was able to extensively cross-examine wife's expert witness, but the court found irrelevant the particular question he cites on appeal, and he makes no argument that the question was relevant. Both of the challenged rulings involve trial court discretion. See State v. Brochu, 2008 VT 21, ¶ 49, 183 Vt. 269, 949 A.2d 1035 (relevancy ruling is discretionary); Lamell Lumber Corp. v. Newstress Int'l, Inc., 2007 VT 83, ¶ 18, 182 Vt. 282, 938 A.2d 1215 (decision to impose sanctions is discretionary and will be overturned only for abuse of that discretion). Husband has not addressed the exercise of that discretion and certainly has not shown abuse of discretion. Accordingly, we find no error.

¶ 11. Husband challenges the substance of the valuation decision. As we summarized above, the court was faced with two expert valuations of NHS. The court found wife's expert's opinion more persuasive because she included the disputed $110,000 in the year the court determined was more appropriate. The court found that wife's expert was "more qualified" and that her opinion was "more reliable," and agreed that the business was worth approximately $281,000. Husband argues that the court abused its discretion by adopting wife's expert opinion because: (1) wife's expert changed her valuation methodology mid-trial; (2) her value defies common sense because the increase in value in the short life of the business was astronomical; (3) her valuation is too high in relation to annual sales; (4) NHS has no value beyond its physical tangible assets because it is totally dependent on husband's work; and (5) her valuation deviated from well-established valuation standards, because the capitalization rate wife's expert used failed to account for the risk due to NHS's size and earnings variability, and she relied on only one method of valuation. Husband also argues that the court erred in failing to determine whether NHS's historical information was a reasonable indication of its future earnings and in adopting wife's expert's assumed growth rate.

¶ 12. Some of husband's arguments — for example, the argument that NHS has no value beyond its physical assets because it is entirely dependent on husband's work — were not raised below and, therefore, were not preserved for appeal. See Bell v. Bell, 162 Vt. 192, 201, 643 A.2d 846, 852 (1994) (refusing to consider the wife's argument concerning payment of taxes on...