Kohut v. Kohut, No. 93-529

• Docket Nº: No. 93-529
• Citation: 164 Vt. 40, 663 A.2d 942
• Case Date: July 21, 1995
• Court: United States State Supreme Court of Vermont

Page 942

663 A.2d 942 164 Vt. 40 Eileen J. KOHUT
v.
William KOHUT. No. 93-529. Supreme Court of Vermont. July 21, 1995.

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[164 Vt. 41] Sandra L. Baird and Anne S. Locke, Burlington, for plaintiff-appellee.

[164 Vt. 42] Douglas L. Molde and Leslie Black of Molde & Black, P.C., Johnson, for defendant-appellant.

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

MORSE, Justice.

Defendant-husband appeals a final order of the Chittenden Family Court challenging, among other things, the maintenance award to plaintiff-wife. We affirm.

The parties were married for thirteen years and had three children before they legally separated in 1991. The couple lived in a $400,000 home and owned two expensive cars and a luxury boat. Both agree, however, that they lived beyond their means. The home was sold to pay the marital debts, and the remaining proceeds of $7,087 were put in escrow awaiting the final disposition of marital property.

The court found that defendant had an earning capacity of $65,000 based on his annual salary at a job which he voluntarily left shortly before the final hearing. It further found that plaintiff was a licensed practical nurse with a part-time job and an earning capacity of $9,000 annually. Plaintiff was on welfare at the time of the final hearing because defendant had failed to pay temporary maintenance and child support payments as previously ordered. The court ordered the payment of $500 per month in permanent maintenance because it concluded that plaintiff was unable to meet her expenses without maintenance in addition to child support for the couple's three children, and because plaintiff's earning capacity would never equal defendant's.

Defendant first argues that because plaintiff did not seek permanent maintenance he was deprived of the opportunity to be heard on the issue. He relies on this Court's decision in Nichols v. Nichols, 133 Vt. 370, 371, 340 A.2d 73, 74 (1975), where we remanded after holding that failure to request alimony or to indicate that alimony was an issue deprived that defendant of an opportunity to be heard. In Nichols, the plaintiff struck out a maintenance request from a printed form, and there were no temporary maintenance orders in effect prior to the final hearing. Id. In contrast, here, plaintiff requested maintenance in writing by typing that request onto a printed form. In addition, a temporary maintenance order was in

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effect, and defendant had already moved to modify that maintenance order three times. At the commencement of the final hearing, defendant, representing himself pro se, explicitly agreed with plaintiff's counsel that everything, including maintenance, was a contested issue. Defendant was on notice that maintenance was an issue, and it was not an abuse of discretion for the court to award maintenance. [164 Vt. 43] See Nevitt v. Nevitt, 155 Vt. 391, 398, 584 A.2d 1134, 1138 (1990) (not abuse of discretion to award maintenance where husband aware wife seeking "other relief as may be appropriate" and that court would consider maintenance at later hearing).

Defendant next attacks the sufficiency of the family court's findings. In order for this Court to overturn a maintenance award, the party seeking reversal must show there is no reasonable basis for the family court's decision. Johnson v. Johnson, 155 Vt. 36, 40, 580 A.2d 503, 506 (1990). Maintenance may be awarded under 15 V.S.A. § 752(a)(1) where a party has insufficient income and property to meet reasonable needs. In determining the amount and period of time for which maintenance is to be awarded, the court must consider a number of factors, including the reasonable needs of the recipient and the standard of living established during the marriage. 15 V.S.A. § 752(b)(3); Naumann v. Kurz, 152 Vt. 355, 357, 566 A.2d 1342, 1343 (1989). Findings are not required for each factor, as long as the court's decision reflects that the appropriate factors were taken into consideration, and the court is not required to make findings on factors where no evidence is presented. Cf. Poulin v. Upham, 149 Vt. 24, 26 n.*, 538 A.2d 181, 182 n.* (1987) (applying standard to 15 V.S.A. § 665(b) factors governing best interests of the child).

In this case, we conclude that there was a reasonable basis for the court's decision to award maintenance and that the findings regarding the reasonable needs of plaintiff were sufficient to support a mere $500 a month maintenance award. The family court was clearly influenced by plaintiff's need to resort to public assistance. We too believe that financial dependence upon the state demonstrated an obvious lack of personal income, property, or both, thereby justifying a maintenance award under 15 V.S.A. § 752(a).

We cannot fault the court for not fashioning a maintenance award based on the exact standard of living established during the marriage. The parties agree that they lived beyond their means and were constantly borrowing money and receiving substantial assistance from defendant's parents. Because it was unlikely that such a lifestyle was sustainable after the divorce, it was not error to fail to make a finding on this factor. See Bell v. Bell, 162 Vt. 192, ----, 643 A.2d 846, 850-51 (1994) (parties' standard of living would have declined, with or without dissolution of marriage; therefore it was proper not to base maintenance on standard of living established during marriage). Additionally, we have never required mathematical [164 Vt. 44] exactitude in quantifying the amount of an award. Klein v. Klein, 150 Vt. 466, 468-69, 555 A.2d 382, 384 (1988).

Plaintiff submitted her child support guideline information she had supplied in support of the temporary award of $600 per month. Consequently, the findings that the couple enjoyed an income of $65,000 per year during the marriage, that plaintiff required welfare assistance after the marriage, and that plaintiff's income would never equal defendant's were adequate to support the $500 per month maintenance award against an attack by defendant, who benefits from such a nominal award. ^*

Defendant next contends that the trial court erroneously determined that he had the ability to pay maintenance because it wrongfully imputed his income using his former $65,000 salary. The trial court found that defendant voluntarily quit his job...