Lalumiere v. Lalumiere, 85-462

• Decision Date: 18 March 1988
• Docket Number: No. 85-462,85-462
• Citation: 544 A.2d 1170,149 Vt. 469
• Court: Vermont Supreme Court
• Parties: Raymond J. LALUMIERE v. Kathleen LALUMIERE.

Page 1170

544 A.2d 1170

149 Vt. 469

Raymond J. LALUMIERE v. Kathleen LALUMIERE.

No. 85-462.

Supreme Court of Vermont.

March 18, 1988.

Susan M. Murray of Langrock Sperry Parker & Wool, Middlebury, for plaintiff-appellant.

Marion T. Ferguson of Ryan Smith & Carbine, Ltd., Rutland, for defendant-appellee.

Before ALLEN, C.J., PECK and DOOLEY, JJ., and BARNEY, C.J. (Ret.) and KEYSER, J. (Ret.), Specially Assigned.

PECK, Justice.

The parties were divorced by order of the Addison Superior Court after a contested hearing. Plaintiff husband appeals the trial court's property division and award of rehabilitative maintenance to defendant, and argues that the trial court abused its discretion by failing to order defendant to pay child support. Defendant argues that the trial court erred by failing to award her attorney's fees. We affirm in part and reverse in part.

The parties were married in 1977 and had two children. Over a period of many years defendant suffered from bipolar disease and from substance abuse. As a result of these conditions she was hospitalized in December of 1983, for a period of 30 days, and thereafter spent 30 days in a treatment facility. Upon release defendant resided at a half-way house in Massachusetts and, since June, 1985, has shared an apartment with another adult in Massachusetts. Since the time the parties separated, the children have resided with plaintiff.

At the time of the final hearing, plaintiff earned approximately $17,000 a year. In addition, he had a savings account of $2,000, a mutual fund account worth $1,000, shares of stock valued at $2,800, and three cars, two of which were inoperable. Plaintiff also had an indebtdness of $5,752, and shares of stock in a retirement program worth approximately $5,400. Defendant, in contrast, earned $67 a week and was a part time student.

The parties own two acres of land in Leicester, Vermont, upon which is located a house, not yet completed, and a mobile home in which plaintiff and the children live. The court found the real estate to be worth $15,000, but encumbered by an outstanding loan of $4,000.

In its final order, the court awarded custody of the children to plaintiff, and also awarded him all of the marital property, which included the land, stock, savings account cars and mutual fund. In dividing the marital property, plaintiff was ordered to pay defendant $5,000 in two payments over a six month period. In addition, the court ordered plaintiff to pay defendant $3,000 in rehabilitative maintenance in two payments over a year period.

Plaintiff contends first that the trial court abused its discretion by ordering him to pay defendant $5,000 as a property settlement. He argues that his current income is insufficient to cover the expenses he incurs in supporting himself and the children and, as a result, it is unreasonable to require him to pay a property settlement. 15 V.S.A. § 751 provides that "the court shall settle the rights of the parties to their property ... [and] equitably divide and assign the property," and sets out factors that the court may consider. Among the factors to be considered in making the decision are "the source of the property, the respective merits of the parties, the conditions with which each would be left by the divorce, the needs of the children and a general equitable result." Kinley v. Kinley, 140 Vt. 77, 78, 435 A.2d 698, 699 (1981).

The disposition of property pursuant to a divorce decree is a matter of wide discretion for the trial court. Roberts v. Roberts, 146 Vt. 498, 499, 505 A.2d 676, 677 (1986); Atwood v. Atwood, 143 Vt. 298, 300, 465 A.2d 1354, 1355 (1983). The court's disposition will not be disturbed, "[u]nless the court's discretion was abused, withheld or exercised on untenable grounds or to a clearly unreasonable extent...." Roberts, 146 Vt. at 499, 505 A.2d at 677. "[T]he distribution of property is not an exact science and does not always lend itself to a precise mathematical formula; all that is required is that such distribution be equitable." Victor v. Victor, 142 Vt. 126, 130, 453 A.2d 1115, 1117 (1982).

In this case we find no abuse of discretion. It appears from the record that plaintiff was awarded approximately 70% of the marital assets. Findings were made as to many of the factors set out in § 751. We find no indication that the trial court's discretion was either withheld or abused.

Plaintiff next argues that the trial court erred by awarding defendant maintenance in the absence of a request for it by her. We first note that, when it comes to awarding maintenance, the court has wide discretion, and "corrective action is warranted only where such discretion has been improperly exercised, or has exceeded its bounds." Ruhe v. Ruhe, 142 Vt. 429, 431, 457 A.2d 628, 630 (1983).

In Nichols v. Nichols, 133 Vt. 370, 340 A.2d 73 (1975), this Court held that the trial court erroneously ordered the defendant to pay alimony to the plaintiff, where there was every indication that the plaintiff was not seeking alimony. Id. at 371, 340 A.2d at 73.

This case is factually similar to Nichols. Defendant never requested maintenance, and stated that "[t]he only thing that I'm asking for is reasonable visitation with my children. And a reasonable split on the property." In addition, she never indicated that she needed maintenance. On the contrary, the record shows that defendant was self-sufficient. She had overcome her addictions to drugs and alcohol and was working part-time and going to school part-time. Defendant was also living with her fiance, with whom she shared expenses.

Defendant points to Bero v. Bero, 134 Vt. 533, 367 A.2d 165 (1976), for the proposition that the court may award maintenance even...