Russell v. Russell, 89-564

• Citation: 597 A.2d 798,157 Vt. 295
• Decision Date: 23 August 1991
• Docket Number: No. 89-564,89-564
• Parties: Janet D. RUSSELL v. James V. RUSSELL.
• Court: Vermont Supreme Court

Page 798

597 A.2d 798

157 Vt. 295

Janet D. RUSSELL v. James V. RUSSELL.

No. 89-564.

Supreme Court of Vermont.

Aug. 23, 1991.

William E. Roper of Neuse, Smith, Roper & Venman, Middlebury, for plaintiff-appellee.

John J. Bergeron and Norman C. Smith of Bergeron, Paradis, Coombs & Fitzpatrick, Burlington, for defendant-appellant.

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

MORSE, Justice.

This appeal from a divorce judgment entered eighteen months after the hearing on the merits presents such a procedural morass that a remand is necessary to reach an outcome in a manner consistent with the civil rules.

Following a divorce hearing held May 2, 1988, the trial court filed, on August 18, 1988, a document entitled, "Findings of Fact, Conclusions, and Notice of Decision." In it, the court directed the husband's counsel to prepare a judgment. The decision divided the parties' net equity in marital property relatively equally and awarded the wife $300 a week in maintenance. For a pension distribution, the court stated:

The parties shall share equally in pension pay when payment is received by [the husband]. Any pension which [the wife] may become entitled to through her employment or earnings shall be considered in any calculation or formula. [The husband] shall be required to pay or cause to be paid such portion of his pension as will enable [the wife] to have no less pension income than [the husband], including social security payments. [The husband] shall preserve [the wife's] interest so as to best accomplish equal pension payments when both are retired and living.

The parties had addressed whether the husband would provide the wife's health insurance, but the notice of decision was silent on that issue.

Although no judgment was prepared as ordered, on August 24 and August 29 the husband and the wife respectively filed V.R.C.P. 52(b) motions to amend the notice of decision. These motions were argued orally, without additional evidence, on September 13, 1988. Neither of the parties nor the court acknowledged that Rule 52(b) applies only post judgment ("after entry of judgment"). On November 2, 1988, the court filed a second "Notice of Decision upon Motions" amending its original notice of decision and, among other things, providing the wife with health insurance as additional maintenance. The court stated The insurance shall continue not only for the three-year period requested but until she remarries, is covered by Medicaid or its equivalent, or regularly lives with another as a spouse.

On December 1, 1988, the husband submitted a proposed judgment order to the court. The wife objected to portions, and the husband responded to the objections. A conference was held to discuss the proposed final order on February 22, 1989. The day before, February 21, the wife filed a motion to "reconsider" under V.R.C.P. 60(b)(2) and 15 V.S.A. § 554. This motion alleged that the wife had quit her job due to a worsening diabetic condition and needed more maintenance. At the February 22 conference, the court scheduled the motion to reconsider for evidentiary hearing. On July 14, 1989, that hearing was held, and on September 6, 1989, the court filed a "Memorandum of Decision upon Further Hearing." The court increased maintenance from $300 to $400 a week, but temporarily increased it by $800 a month "while [the husband] has no substantial college expenses to meet for the children of the parties," to end in any event on July 1, 1993. The court also added a provision that the husband pay the wife $10,000 in trust to be applied toward the purchase of a home. On November 2, 1989, the court filed a "Final Order and Decree of Divorce."

The husband raises six issues on appeal.

I.

The husband claims the court abused its discretion in awarding the wife permanent, rather than rehabilitative, maintenance.

The parties were married in December 1963, shortly after the wife graduated from high school, and raised four children. During the marriage, the wife was primarily a homemaker. She had some experience with home decorating and as a secretary. At the time of the first divorce hearing, the wife worked at the Medical Center Hospital of Vermont as a secretary, earning $7.50 per hour. The husband was then 51 years old, the wife 44. The court found the wife's health during the summer of 1988 to be as follows:

She is diabetic to the extent that she suffers depression and her eyesight is diminished and she suffers blurriness at times. She is overweight. She is participating, since September 1987, in an experimental diabetic research program associated with the University of Vermont College of Medicine. She is not dependent yet on the drug insulin, but she is on a severe diet.

In contrast, at the time of the 1988 hearing, the husband was earning $82,000 a year as a manager at General Electric Company. He also was being treated for depression due to difficulties at work and the breakup of the marriage.

Although the evidence suggested that the wife desired to pursue training in a decorating career, the prospects that she would remotely approach the husband's earning capacity were slim. Spousal maintenance is designed to correct " 'vast inequality between the parties' financial positions' " resulting from divorce. Klein v. Klein, 150 Vt. 466, 473, 555 A.2d 382, 386 (1988) (quoting Buttura v. Buttura, 143 Vt. 95, 99, 463 A.2d 229, 231 (1983)). Therefore, the husband had a responsibility, within the limits of his resources,

"to maintain the wife's standard of living as nearly as possible at the same level she enjoyed during the marriage. The husband, having entered one of the strongest and most fundamental relationships known to the law, must continue to bear its financial burden where he can reasonably do so and where it is necessary in order to prevent a relatively greater hardship to the wife."

Id. at 473, 555 A.2d at 387 (quoting 2 H. Clark, The Law of Domestic Relations in the United States § 17.5, at 254-55 (2d ed. 1987)). Moreover, in a long-term marriage, maintenance serves more than a rehabilitative function; it also compensates the contributions of a homemaker to the family's well-being. Id. at 474, 555 A.2d at 387.

15 V.S.A. § 752(a) specifically provides for permanent maintenance and does not demand any heightened standard for awarding it. Rather, § 752(b) permits the court to award maintenance "in such amounts and for such periods of time as [it] deems just," after consideration of the statutory factors. No abuse of discretion in the award of permanent maintenance has been shown. See Klein, 150 Vt. at 472, 555 A.2d at 386 (trial court has considerable discretion when ruling on maintenance and will be reversed only if no reasonable basis supports its order).

II.

Next, the husband maintains that the court's decision to increase maintenance was error.

Review of this issue is complicated by the trial court's initial failure to enter judgment, instead filing a notice of decision. Nowhere in our rules is "a notice of decision," as a term of art, defined. The phrase is used in V.R.C.P. 52(a) as the event that triggers a party's deadline to request findings of fact and conclusions of law:

In all actions tried upon the facts without a jury ... the court shall, upon request of a party ... made on the record or in writing within 5 days after notice of the decision, or may upon its own initiative, find the facts specially and state separately its conclusions of law thereon....

(Emphasis added.)

Shortly after trial, the parties requested findings. Because the parties had already initiated the requirement that findings be made, they did not need to be notified that the period for requesting findings had begun to run. Instead, the court should have entered judgment as mandated by Rule 52(a). Rule 52(a) states that "judgment shall be entered pursuant to Rule 58." According to V.R.C.P. 58,

Subject to the provisions of Rule 54(b), upon the verdict of a jury, or upon a decision by the court granting or denying relief, the clerk, unless the Presiding Judge otherwise orders, shall forthwith prepare the judgment without awaiting any direction by the court. The Presiding Judge shall promptly approve and sign the judgment, and the clerk shall thereupon enter it. A judgment is effective only when entered as provided in Rule 79(a). Entry of the judgment shall not be delayed for the taxing of costs. Attorneys shall submit forms of judgment upon direction of the Presiding Judge. A form of judgment submitted in accordance with this rule shall be served upon all opposing parties, who shall file any objections to the judgment proposed within five days of service upon them unless the Presiding Judge orders such objections to be filed earlier.

In this case, the correct procedure dictated that the husband's counsel prepare the judgment as instructed by the presiding judge. Instead, no proposed order was prepared and served until December 1, 1988, a month after the court's second notice of decision. Due to protracted legal wrangling, the judgment did not become effective until eighteen months after the final divorce hearing, though it should have been effective much earlier. In short, the court and the parties allowed what should have been a judgment entered within a reasonable time after the court's decision to become an unnecessarily protracted dispute without any apparent end in sight.

Absent a judgment, all motions filed after the court's first (August 18, 1988) notice of decision were not authorized by the Rules of Civil Procedure. The parties' motions to amend pursuant to V.R.C.P. 52(b), seeking, in part, clarification of the maintenance order, were made without an entry of judgment. The wife's request for modification, which came in the form of a V.R.C.P. 60(b) motion filed six months after the notice of decision, was also directed to a nonexistent judgment.

The court's request that the husband prepare a judgment, the...