Gulian v. Gulian

• Citation: 790 A.2d 1116
• Decision Date: 09 November 2001
• Docket Number: No. 99-207.,99-207.
• Court: United States State Supreme Court of Vermont
• Parties: Carole GULIAN v. George GULIAN.

790 A.2d 1116

Carole GULIAN v. George GULIAN.

No. 99-207.

Supreme Court of Vermont.

November 9, 2001.

Motion for Reargument Denied December 4, 2001.

Kimberly B. Cheney of Cheney, Brock & Saudek, P.C., Montpelier, for Plaintiff-Appellant.

Marsha Smith Meekins of Roesler, Whittlesey, Meekins & Amidon, Burlington, for Defendant-Appellee.

Present: AMESTOY, C.J., DOOLEY, MORSE and JOHNSON, JJ., and DIMOTSIS, District Judge, Specially Assigned.

JOHNSON, J.

Mother Carole (Gulian) Warner appeals from a divorce judgment of the Washington Family Court. She contends that the trial court abused its discretion in (1) setting the amount of maintenance because the award did not equalize the incomes between her and father George Gulian; and (2) setting the duration of maintenance at nine years, terminating when the youngest child reached the age of majority. We reverse the trial court's award because the court did not separate the maintenance award from the child support award; thus, as a matter of appellate review we cannot determine whether the court did in fact abuse its discretion in awarding maintenance. We also reverse the court's decision to link the duration of the award to the age of the litigants' children because this step implicitly allocated maintenance for child support.

The parties were married in 1983. At the time, mother was 27, had earned her B.A. and was practicing as an accountant full time for approximately $16,000 per year. Father was 34, had earned a Masters, a degree in accounting and was a C.P.A.; he made approximately $32,000 per year. By mutual agreement, mother quit her job to raise a family. The couple had three children, the youngest of whom was born in 1989. The parties were married for almost fifteen years before separating in 1997. Following the separation, mother, then 42, found employment with the State of Vermont Transportation Agency earning approximately $2000 per month. Mother suffers from migraine headaches, which have impeded her ability to work full time. With medication, however, she expects to be able to work 40 hours per week within a year. Father remained employed at National Life Insurance where he has been employed since 1991. His income is approximately $5800 per month and is expected to continue to increase at five percent per year.

The parties' property included a house in Barre, worth approximately $250,000 mortgage-free, as well as substantial assets in various checking, savings, retirement, and brokerage accounts totaling approximately $250,000. The parties agreed to and the court approved a property division that awarded each party an equal share of these assets. The house was ordered sold, and the proceeds were divided equally.

At trial, the principal issue in dispute was the amount and duration of maintenance payments from father to mother. As background, the trial court stated that spousal maintenance is intended to rectify the inequalities of the parties' financial positions and noted the rehabilitative and compensatory elements of such an award. The court then determined that mother needed $1700 per month for the first year following the divorce and $1500 per month until the year 2007 to support herself and to "ensure that the children are maintained at [the marital] standard of living when living with her." Other than this statement, the court did not explain how it arrived at these figures. According to the court, spousal maintenance is to last until 2007 because that is when the youngest child will turn eighteen.

No child support was awarded because the court determined that the amount recommended by the child support guidelines would be de minimis. For purposes of the child support worksheet, the court determined that each party's monthly income should include the amount of spousal maintenance awarded. Thus, on the child support worksheet, the court calculated mother's monthly income in the first year to be $3699 ($1999 salary plus $1700 maintenance). and father's monthly income to be $4107 ($5807 salary minus $1700 maintenance). Using these figures, the guidelines recommend a support obligation of two dollars.

On appeal, mother argues that both the amount and duration of the maintenance awards were an abuse of discretion. First, mother argues that the court's award treats her differently from similarly situated women. She contends that a maintenance award must equalize the incomes between the parties to compensate her fully for her contribution to the marriage. Second, mother argues that the duration of the award is inadequate. Mother sought a maintenance award that would last fifteen years, equal to the length of the marriage. Terminating maintenance when the youngest child turns eighteen is arbitrary, she believes, because this termination date is based on the children's needs rather than the mother's.

These issues, however, are subsidiary to the fundamental flaw in the trial court's decision, which is that the court did not award any child support. The court's decision on both the amount of maintenance and the duration of maintenance systematically conflated the inquiries for maintenance and child support. Rather than award mother maintenance and separate child support, the court awarded only maintenance with the result that some of that maintenance must be used for child support. This was error.

I. Amount of Maintenance

In reviewing a maintenance award, the first thing we must do is determine the actual amount awarded. The court employed a process by which it set an amount of "maintenance" without considering whether father would owe any child support under the guidelines with this amount of maintenance. Only then did the court determine that none was required by using this maintenance award when calculating child support.¹ This methodology confounds any attempt to determine the component parts of the award for the purpose of appellate review. More importantly, the court's calculations allow it to reach an unsupportable position — that although mother needs maintenance for her needs and rehabilitation, she has no need for child support to provide adequately for her children.

In not awarding any child support, the court must have presumed that at least some portion of the maintenance award would be available to pay for the children's expenses. In its findings, the court accepted mother's report that her expenses, excluding costs for the children, were approximately $3000 per month. Given that her income was only $2000 per month, some of the $1500 "maintenance" award must have been intended for her children. But maintenance is intended specifically to provide for the spouse's own needs. See 15 V.S.A. § 752(a); Strauss v. Strauss, 160 Vt. 335, 338, 628 A.2d 552, 554 (1993) (maintenance is intended to correct the inequalities in income, equalize the standard of living, and compensate homemaker contributions). Child support, in contrast, is governed by a different statutory regime and intended to serve a different purpose. See 15 V.S.A. §§ 650-658; Ainsworth v. Ainsworth, 154 Vt. 103, 106, 574 A.2d 772, 774 (1990) (one purpose of child support guidelines is to provide children with the same approximate standard of living they enjoyed prior to divorce). Indeed, by linking the maintenance award to the age of the children, see discussion infra, the court provided further evidence that it intended some, if not all, of the award for child support.

Thus, while the family court has broad discretion in determining the amount of maintenance, see Delozier v. Delozier, 161 Vt. 377, 381, 640 A.2d 55, 57 (1994), we must be able to discern this amount before we can determine if there is a reasonable basis to support it. Because the court, in effect, combined child support and maintenance, we simply cannot see how the court exercised its discretion. By rendering its decision unreviewable, the court abused its discretion. See Remes v. Nordic Group, Inc., 169 Vt. 37, 39-40, 726 A.2d 77, 79 (1999). Similarly, we cannot address appellant's argument that the award is inconsistent with our precedent because we do not know the amount of the award.

The difficulty in reviewing the award is illustrated by different attempts to determine the amount of actual maintenance. For example, we can try to figure out how much of the $1500 award is actual maintenance by determining the proper amount of child support owed under the guidelines based on the pre-award income of both parties.² Applying this means of calculation avoids the trap of double counting an award for both spousal maintenance and child support. Using this method, we can speculate that father owes mother approximately $500 for child support according to the guidelines, leaving approximately $1000 for actual maintenance.³ At oral argument, however, counsel for mother argued that the award was split approximately equally between child support and maintenance. Regardless of whose numbers are more accurate, we cannot use them because these calculations amount to fact finding and thus are not appropriate at the appellate level.⁴

II. Duration of Maintenance

Although we are left unsure about whether the amount of maintenance may be within discretion, there is no support for the court's decision terminating maintenance when the parties' youngest child turns 18, or a duration of nine years. Because this duration is apparently based on the needs of the children rather than on the needs of mother, the award is inconsistent with the statutory maintenance scheme. A child support award may end upon the children reaching the age of majority, see Knowles v. Thompson, 166 Vt. 414, 422, 697 A.2d 335, 339 (1997), but that temporal event is unrelated to the reason maintenance is awarded.

In determining whether maintenance is appropriate, the court must consider whether one spouse "lacks sufficient income, property, or both ... to provide for his or her reasonable needs, and is unable to support himself or herself through...