Russell v. Russell, 89-564

Docket NºNo. 89-564
Citation597 A.2d 798, 157 Vt. 295
Case DateAugust 23, 1991
CourtUnited States State Supreme Court of Vermont

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.

Page 799

[157 Vt. 296] 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 [157 Vt. 295] ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

[157 Vt. 296] 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[157 Vt. 297] 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,

Page 800

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[157 Vt. 298] 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 [157 Vt. 299] 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

Page 801

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:

[157 Vt. 300] 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...

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22 practice notes
  • Golden v. Cooper-Ellis, 05-065.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 2 Marzo 2007
    ...draws from our pension cases which have sometimes used the date of separation as a temporal dividing line. See, e.g., Russell v. Russell, 157 Vt. 295, 305, 597 A.2d 798, 804 (1991). Russell is based on the determination in that case that the date of separation was the "date . . . most refle......
  • Lee v. Ogilbee, 18-055
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 7 Septiembre 2018
    ...Mother points to Russell v. Russell for the proposition that the court has discretion to value marital property at the time of separation. 157 Vt. 295, 305, 597 A.2d 798, 804 (1991). In Russell, the trial court used the date of the parties' separation to apportion a pension that was only pa......
  • Lee v. Ogilbee, 2018-055
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 7 Septiembre 2018
    ...Mother points to Russell v. Russell for the proposition that the court has discretion to value marital property at the time of separation. 157 Vt. 295, 305, 597 A.2d 798, 804 (1991). In Russell, the trial court used the date of the parties' separation to apportion a pension that was only pa......
  • In re White, No. 98-390
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 1 Junio 2001
    ...we will also address White's argument regarding the exclusion of Peel's prior testimony on relevancy grounds. Cf. Russell v. Russell, 157 Vt. 295, 305, 597 A.2d 798, 804 (1991) (addressing issue likely to recur on remand). White argues that the Board erred by excluding a portion of the tran......
  • Request a trial to view additional results
22 cases
  • Golden v. Cooper-Ellis, 05-065.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 2 Marzo 2007
    ...draws from our pension cases which have sometimes used the date of separation as a temporal dividing line. See, e.g., Russell v. Russell, 157 Vt. 295, 305, 597 A.2d 798, 804 (1991). Russell is based on the determination in that case that the date of separation was the "date . . . most refle......
  • Lee v. Ogilbee, 18-055
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 7 Septiembre 2018
    ...Mother points to Russell v. Russell for the proposition that the court has discretion to value marital property at the time of separation. 157 Vt. 295, 305, 597 A.2d 798, 804 (1991). In Russell, the trial court used the date of the parties' separation to apportion a pension that was only pa......
  • Lee v. Ogilbee, 2018-055
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 7 Septiembre 2018
    ...Mother points to Russell v. Russell for the proposition that the court has discretion to value marital property at the time of separation. 157 Vt. 295, 305, 597 A.2d 798, 804 (1991). In Russell, the trial court used the date of the parties' separation to apportion a pension that was only pa......
  • In re White, No. 98-390
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 1 Junio 2001
    ...we will also address White's argument regarding the exclusion of Peel's prior testimony on relevancy grounds. Cf. Russell v. Russell, 157 Vt. 295, 305, 597 A.2d 798, 804 (1991) (addressing issue likely to recur on remand). White argues that the Board erred by excluding a portion of the tran......
  • Request a trial to view additional results

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