Lewis v. Lewis

• Decision Date: 04 December 1987
• Docket Number: No. 85-183,85-183
• Court: Vermont Supreme Court
• Parties: Donna R. LEWIS v. Victor R. LEWIS, St. Johnsbury Fruit Co. and Vermont Mutual Insurance Co.

Page 170

538 A.2d 170

149 Vt. 19

Donna R. LEWIS v. Victor R. LEWIS, St. Johnsbury Fruit Co. and Vermont Mutual

Insurance Co.

No. 85-183.

Supreme Court of Vermont.

Dec. 4, 1987.

Steven A. Adler of Gensburg & Axelrod, St. Johnsbury, for plaintiff-appellee.

Swainbank, Morrissette, Neylon & Hickey, St. Johnsbury, for defendants-appellants.

Before ALLEN, C.J., PECK, J., BARNEY, C.J. (Ret.), COSTELLO, District Judge (Ret.) and MARTIN, Superior Judge, Specially Assigned.

PECK, Justice.

This is an appeal and cross-appeal from the trial court's distribution of assets in a divorce judgment. Disputed here is the disposition of the parties' business property consisting of a grocery store and corporation. We affirm.

Defendant-appellant husband raises four issues on appeal: (1) whether the trial court erred in finding that the parties agreed to an equal division of the corporate assets in the event of liquidation; (2) whether the trial court erred in ordering defendant to execute a promissory note to plaintiff-appellee wife payable within a two year period when she had proposed a more protracted payment and the court made no finding regarding defendant's ability to pay; (3) whether the trial court erred in failing to acknowledge defendant's request to receive 75% of the business assets, and in failing to explain its reasons for the distribution it ultimately made; and (4) whether the trial court's order pertaining to the default provision of the promissory note was fatally vague. On her cross-appeal, plaintiff raises two issues: (1) whether the trial court abused its discretion awarding defendant a majority of the marital property; and (2) whether the trial court's finding of fault on the part of plaintiff is supported by the evidence and whether, in any event, the trial court placed an undue emphasis on such finding.

In February, 1985, a divorce was granted on grounds that the parties had lived separate and apart for at least six months and that the resumption of marital relations was not probable. 15 V.S.A. § 551(7). Spousal maintenance was neither requested nor awarded. Joint custody of the children was awarded, and child support was not granted to either party.

Challenged here is the disposition of the parties' business property, a grocery store and corporation. The parties purchased the original store on favorable terms from defendant's mother. Both defendant and plaintiff actively participated in the operation of the business during the course of the marriage. The business was successful and grew in both size and value. After the parties separated in June, 1983, defendant operated the business until it was destroyed by fire in July of 1984.

The insurance company presented the parties with two alternatives after the fire: rebuilding the store at the expense of the insurance company, or receiving a lump sum payment if the store was not rebuilt. As the parties had not yet elected their insurance remedy at the time of the judgment below, the trial court structured its order to include alternate terms. If defendant chose to accept a lump sum payment for liquidation of the business, plaintiff would be awarded 50% of the value of the corporation. However, if defendant elected to rebuild, plaintiff would be awarded $149,840.00 (40% of the value of the business) payable by promissory note within two years of filing the order, or upon sale of either the business assets or stock of the corporation. The parties agreed that defendant would have total control of the corporate stock. While this appeal was pending, defendant elected to rebuild the store.

Defendant first challenges that portion of the trial court's order dealing with the cash settlement alternative. He argues that it is based upon an erroneous finding that the parties had agreed to divide the business property equally in the event of liquidation. Since defendant chose to rebuild the store rather than liquidate the business and receive the lump sum payment, this issue is moot and we need not consider the question further. See In re S.H., 141 Vt. 278, 280, 448 A.2d 148, 149 (1982).

Defendant next challenges the trial court's order that he execute a $149,840.00 promissory note to the plaintiff, payable in two years, as compensation for her interest in the family business. Defendant complains that plaintiff herself, in her proposed findings, proffered a more protracted payment schedule than that adopted by the trial court. We recognize that trial courts have wide discretion under 15 V.S.A. § 751 in formulating awards of property upon divorce. Roberts v. Roberts, 146 Vt. 498, 499, 505 A.2d 676, 677 (1986) (citations omitted). Unless it is shown that such discretion was abused, withheld or exercised on clearly unreasonable grounds, this Court will allow the decree to stand. Ruhe v. Ruhe, 142 Vt. 429, 431, 457 A.2d 628, 630 (1983). The court is not bound by stipulations between the parties, but acts within its discretion in making a different disposition of the property based on evidence before it. See Rudin v. Rudin, 132 Vt. 30, 33, 312 A.2d 736, 738 (1973); Hopkins v. Hopkins, 130 Vt. 475, 296 A.2d 266 (1972).

As a general matter, in disposing of marital property the trial court should give great weight to any agreements between the parties. In this case, however, the trial court did not abuse its discretion by ordering a two year payment on the note. The court's findings contain facts that could support the two year payment period, including defendant's employability and that defendant was awarded property in a net amount of nearly $422,000.00--a sum far exceeding the amount of the note.

Third, defendant challenges the trial court's award of $149,840.00 to the plaintiff, representing 40% of the value of their business. He argues that the court's findings fail to provide a rationale for this division, and it fails to explain its rejection of defendant's proposed division that would have provided plaintiff with only 25% of the business assets.

15 V.S.A. § 751 provides factors which a court may consider when making a disposition of marital property. Among the factors considered are the source of the property, vocational skills and employability, age and health of the parties, the value of all property interests, the needs of each party, as well as "general justice and equity." Field v. Field, 139 Vt. 242, 244, 427 A.2d 350, 352 (1981). We have noted that " 'the 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.' " Roberts, 146 Vt. at 499, ...