Quesnel v. Quesnel

• Decision Date: 24 June 1988
• Docket Number: No. 86-020,86-020
• Parties: Sarah E. QUESNEL v. Carl R. QUESNEL.
• Court: Vermont Supreme Court

Page 644

549 A.2d 644

150 Vt. 149

Sarah E. QUESNEL v. Carl R. QUESNEL.

No. 86-020.

Supreme Court of Vermont.

June 24, 1988.

Patrick L. Biggam, Montpelier, for plaintiff-appellee.

McKee, Giuliani & Cleveland, Montpelier, for defendant-appellant.

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

ALLEN, Chief Justice.

The parties were divorced by decree of the Washington Superior Court after a contested hearing. Defendant husband appeals the trial court's property disposition and its award of permanent maintenance to plaintiff. We affirm.

Defendant first complains that the trial court's division of the marital assets is inequitable because of the respective contributions of the parties to the marital estate. He also assigns error to the award of maintenance, arguing that the court wrongly attempted to equalize the monthly incomes of the parties. Defendant maintains further that the court awarded funds to plaintiff for the education of the parties' adult children and that such an award is not authorized by statute. Finally, defendant contends that the court erred in ordering him to maintain a life insurance policy naming plaintiff as beneficiary.

The primary factor in the breakup of the parties' twenty-four year marriage was a severe drinking problem on the part of defendant. Although divorce had been discussed previously, plaintiff's filing was precipitated by a doctor's announcement that defendant would die within six months if he continued his abuse of alcohol. At the time of the final hearing, plaintiff was working as a customer service representative for an insurance agency, making about $11,500 per year. Defendant was a civil engineer for the state earning approximately $30,000 annually. The parties have two adult children who are attending college. The court's order awarded plaintiff 58.6% and defendant 41.4% of the total marital assets, ordered defendant to make maintenance payments of $500 per month and to maintain his life insurance policy or another policy of equal value naming plaintiff as beneficiary.

Defendant's first argument on appeal is that the trial court's division of the marital assets was inequitable. Defendant focuses on the disparity in the parties' monetary contribution to the marriage. He alleges that he contributed 81.7% of the marital estate through his wages. It is clear from the record that the court did consider the contributions of the defendant to the marital estate. It concluded, however, that the significantly lower earning capacity of the plaintiff, the length of the marriage, and the respective merits of the parties warranted a larger award of the marital assets to her. The trial court has wide discretion in formulating awards, and under the circumstances here disclosed we find no abuse of discretion. See Philburt v. Philburt, 148 Vt. 394, 533 A.2d 1181 (1987).

Defendant also challenges the constitutionality of 15 V.S.A. § 751(b)(10) and (11). This challenge is raised for the first time on appeal. Defendant makes no showing of any extraordinary circumstances that would suggest that we should address the issue, and we decline to do so. See State v. Maguire, 146 Vt. 49, 54, 498 A.2d 1028, 1031 (1985).

Defendant next directs our attention to the award to plaintiff of a certificate of deposit in the amount of $20,000. He argues that the award was improper because it was intended for the education of the parties' adult children. In Beaudry v. Beaudry, 132 Vt. 53, 56, 312 A.2d 922, 925 (1973), we held that a trial court's discretion in the area of property settlements and support orders "does not extend to the creation of obligations regarding the children of the parties other than provision for their care, custody and maintenance during minority." Plaintiff requested that the $20,000 be awarded to her and concedes that her stated intention was to use the money to complete the education of the children. But the court imposed no limitations on the award, and the plaintiff was free to use the monies in any way she saw fit. There is no showing that the court abused or withheld its discretion and no error appears.

Defendant attacks the court's award of separate maintenance, arguing that the court erroneously attempted to equalize the incomes of the parties. He maintains that it is inequitable to equalize the income of the parties "when the disparity of training and professional attainment is no different than a doctor and his secretary...." He suggests, instead, that plaintiff could augment her salary by investing the cash settlement awarded by the court, so as to "attain such a standard of living as benefits a person trained as she is and so placed in the employment scale." We note first that the record belies the assertion that the court was attempting to equalize the parties' income. Our calculations indicate that plaintiff's salary and maintenance payments combined will total about $17,000 per year; defendant's annual income, after payment of maintenance, will be approximately $24,000.

Even were defendant correct in his contention, however, we would find no error. Defendant has the burden of showing that there is no reasonable basis to support the maintenance award. Buttura v. Buttura, 143 Vt. 95, 99, 463 A.2d 229, 231 (1983). Under the provisions of 15 V.S.A. § 752(a), a court may properly order maintenance payments if it finds that the spouse seeking maintenance lacks sufficient assets and income to "provide for his or her reasonable needs," and "is unable to support himself or herself through appropriate employment at the standard of living established during the marriage...." 15 V.S.A. § 752(a)(1) and (2) (emphasis added). Here, the court's maintenance award is supported by its findings, and defendant has failed to carry his burden on appeal.

Defendant also challenges the court's requirement that he maintain his current life insurance policy, or another policy of "like amount," naming plaintiff as beneficiary. He cites 15 V.S.A. § 762, which provides that a court "may assign insurance benefits to a spouse or children, and may require the spouse who is required to make the assignment to execute a blanket assignment giving notice of the assignment to the provider of the insurance benefits." Defendant argues that this section does not empower a trial court to order that an insurance contract be maintained. We disagree. The statute refers not to the cash value of the insurance policy but to its benefits. If the maintenance of an existing policy could not be ensured, then an assignment of benefits would have little meaning. ¹ We hold that, in cases where an insurance policy is already in effect, § 762 authorizes the trial court to order that the insured party maintain the policy for the benefit of the spouse. ²

AFFIRMED.

PECK, Justice, concurring in part and dissenting in part.

I concur with the resolution reached by the majority on all issues except that relating to maintenance by defendant of his current life insurance policy for the benefit of the plaintiff. As to this latter issue I must dissent.

I have no quarrel, as such, with the holding of the majority that, "in cases where an insurance policy is already in effect, [15 V.S.A.] § 762 authorizes the trial court to order that the insured party maintain the policy for the benefit of the spouse." In this case, however, the court went beyond simply ordering defendant to maintain his existing policy. The court's order purported to offer defendant an option to maintain either his current policy or "another life insurance policy of like amount."

Passing for the moment the probable prejudice to the defendant resulting from the court's order, I note that, to the extent the order addresses the insurance policy requirement, it is couched in the alternative. Thus, at the very outset, the order violates our own general rule that "a judgment must not be ... in the alternative." Lash Furniture Co. v. Norton, 123 Vt. 226, 228, 185 A.2d 734, 736 (1962). I do not find this precedent to have been overruled or modified.

Of even more egregious concern, however, is the fact that the alternative insurance segment of the order is not supported at any level as to its viability. The findings, certainly, are a blank on the question, as well they might be; I am unable to find even a scintilla of evidence from which the trial court might have determined that defendant's option to obtain another policy was at all viable. It was simply plucked out of the air, sua sponte, without the slightest opportunity afforded defendant to present evidence on the question should he desire to do so.

It is no answer to say that defendant failed to request a finding, and, therefore, waived it. See V.R.C.P. 52(a). I cannot believe that the majority intends to go so far as to hold that a judgment does not require some evidence in the record to support it. It is puzzling, moreover, how the defendant could be expected to request a finding on a matter that was not even in the case, and which he had no earthly reason to anticipate.

I cannot, of course, overlook the question of prejudice. Normally, error which does not result in prejudice will not require reversal. Corti v. Lussier, 140 Vt. 421, 424, 438 A.2d 1114, 1116 (1981). But in this case, without the benefit of evidence, nothing can be determined one way or the other. We can only speculate on the possibilities (obviously, defendant could not present or argue facts outside of the record in his appeal to this Court, even though he never had the opportunity to do so below).

The possibilities of prejudice here, however, are several and indeed, probable. Defendant is older now than at the time his current...