Soutiere v. Soutiere

• Decision Date: 17 February 1995
• Docket Number: No. 93-451,93-451
• Citation: 163 Vt. 265,657 A.2d 206
• Parties: Pauline B. SOUTIERE v. Roger A. SOUTIERE.
• Court: Vermont Supreme Court

Page 206

657 A.2d 206

163 Vt. 265

Pauline B. SOUTIERE v. Roger A. SOUTIERE.

No. 93-451.

Supreme Court of Vermont.

Feb. 17, 1995.

Kurt M. Hughes of Murdoch & Hughes, Burlington, for plaintiff-appellee.

Norman R. Blais, Burlington, for defendant-appellant.

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

GIBSON, Justice.

Defendant husband appeals from a final divorce order of the Chittenden Family Court, alleging error in the court's admission of expert testimony on battered-woman syndrome, and also challenging the court's property and maintenance awards in favor of plaintiff wife. We affirm.

Plaintiff and defendant married in February 1966. The parties remained together for twenty-seven years, and raised two daughters. During the marriage, defendant was the primary income-provider, working at IBM for twelve years before taking early retirement in 1992. In his last full year of employment in 1991, defendant earned over $41,300. Defendant supplemented his IBM income with work as a barber, bringing in an additional $200 to $500 a week. Defendant, age fifty-one at the time of divorce, continues to work as a barber. Although plaintiff worked as a beautician prior to marriage, at defendant's behest she stayed home and raised the parties' children. Only when the children were older did she seek work outside the home. At that time, her employment was limited by defendant's demand that she not work in any job where there would be men in the workplace. At the time of divorce, plaintiff was forty-seven years old, and had been working for six years part-time in a retail shop. In 1992, plaintiff's earnings were just over $4,300. Plaintiff does not enjoy good health, in part due to defendant's abusive treatment of her during the marriage, and this limits her ability to work.

The family court found that the parties' marital assets totalled $177,500, not including the value of defendant's IBM pension. The court also found that plaintiff and defendant had roughly equivalent credit card debt of about $6,000 and $6,550, respectively. The court awarded plaintiff 59% of the parties' property, including the marital residence, for a total value of $105,250, plus 75% of defendant's pension. Of this amount, $11,681 was attributed to defendant's arrearages in paying temporary maintenance, property taxes and unreimbursed medical bills. The court also awarded plaintiff $125 a week in permanent maintenance, or $6,500 annually.

Before analyzing defendant's claims of error, it is appropriate to address one point that appears in each claim. Defendant faults the court because, with only minor modifications, it adopted the extensive findings of fact, conclusions and order proposed by plaintiff. This practice is specifically authorized by V.R.C.P. 52(a)(2), and made applicable to divorce proceedings by V.R.F.P. 4(a). As long as the findings reflect careful review of the evidence, they are not reversible because they are based on a party's proposals. Reporter's Notes to 1987 Amendment to V.R.C.P. 52(a). The findings here embody a thorough review of the evidence as well as consideration of each of the relevant statutory factors in determining the award of property and maintenance.

We reiterate, however, that the better practice is for the court to prepare its own findings. Proposals often have an unnecessarily adversary tone. Thus, plaintiff proposed, and the court adopted, a conclusion that read, "There are not enough assets in the entire marital estate to compensate the Plaintiff adequately for the Defendant's behavior." Defendant cites this sentence as proof that the court intended a one-sided property award to punish defendant. The reality is different, as set out below, but the language chosen provides support for defendant's complaint.

Defendant first challenges the court's allowance of expert testimony concerning plaintiff's affliction with a version of post-traumatic stress disorder (PTSD), commonly known in this context as battered-woman syndrome. At trial, plaintiff testified to numerous instances of physical and psychological abuse she suffered during her marriage to defendant. Although defendant denied many of plaintiff's allegations, he admitted at trial to making plaintiff shave her pubic hair while on their honeymoon, marking her entire body with lipstick and writing profanity on her stomach while she was pregnant, and swearing at plaintiff and accusing her of infidelity if she returned home from work late. Plaintiff secured a relief-from-abuse order against defendant in 1992.

To help explain the impact of the abuse on plaintiff, she offered expert testimony on PTSD and battered-woman syndrome. Plaintiff argued that the testimony was relevant and helpful on the property and maintenance issues before the court. Defendant objected to the expert testimony, arguing that expert testimony on post-traumatic stress disorder resulting from abuse was admissible only to explain the victim's bizarre behavior and that the expert was prohibited from giving her opinion that plaintiff suffered from PTSD or battered-woman syndrome. The court accepted plaintiff's offer and admitted the testimony.

Trial courts have wide discretion in making evidentiary rulings, and we will not overturn the court's decision in the absence of an abuse of discretion. State v. Hunt, 150 Vt. 483, 501, 555 A.2d 369, 380 (1988).

V.R.E. 702 makes admissible expert testimony that will help the trier of fact understand the evidence or determine a fact in issue. Expert testimony in the form of an opinion is not objectionable merely because it embraces an ultimate issue the fact-finder must decide. V.R.E. 704; see also State v. Norton, 134 Vt. 100, 104, 353 A.2d 324, 326 (1976) (officer's opinion testimony that defendant was under influence of intoxicating liquor was properly admitted as opinion evidence in driving-under-the-influence prosecution). Indeed, "[o]pinion evidence has no probative value greater than the reasons which support it. It does not establish a material fact as a matter of law and is not of controlling effect." Norton, 134 Vt. at 103, 353 A.2d at 326.

In determining property and maintenance issues, the family court is authorized by statute to consider certain relevant factors. See 15 V.S.A. §§ 751(b) (property) & 752(b) (maintenance). In this case, expert testimony was offered and admitted to assist the court in this respect. See 15 V.S.A. § 751(b)(2) (health of parties); id. § 751(b)(4) (employability); id. § 751(b)(12) (respective merits of parties); id. § 752(b)(5) (physical and emotional condition of parties); cf. Knock v. Knock, 224 Conn. 776, 621 A.2d 267, 274 (1993) (expert opinion that wife manifested battered-woman's syndrome admissible to help court determine child custody); In re Marriage of Mitchell, 248 Mont. 105, 809 P.2d 582, 585 (1991) (in proceeding to modify custody, social worker could testify as expert on proper custodian and, as basis for her opinion, state that she believed one parent had abused the child). In addition, plaintiff offered the expert's testimony to explain why she had remained in the marriage for so long despite defendant's abusive treatment. Cf. Blair v. Blair, 154 Vt. 201, 203-05, 575 A.2d 191, 192-93 (1990) (trial court erroneously relied on popular misconception that abused wife could have left abusive husband at any time).

Defendant argues that the expert's opinion should not have been admitted because it was based on the expert's belief that plaintiff was the victim of abuse, both physical and verbal, at the hands of her husband. He argues that controlling here is a line of decisions arising from child sexual-abuse prosecutions where we prohibited expert opinion testimony that the victim had been sexually abused. See, e.g., State v. Weeks, 160 Vt. 393, 400, 402-03, 628 A.2d 1262, 1266-67 (1993); State v. Sims, 158 Vt. 173, 178-81, 608 A.2d 1149, 1152-54 (1991).

Defendant reads the criminal cases as an outright ban on the use of expert testimony on PTSD unless it is offered solely to explain bizarre behavior of the victim. In the context of this case, the testimony was relevant and helpful on issues distinct from those tried in child sexual-abuse prosecutions. Unlike child sexual-abuse prosecutions, the severity and long-lasting effects of defendant's abuse on plaintiff's emotional health, her future counselling needs, and her potential employability were at issue during the trial. The severity of the victim's injury is not pertinent in child sexual-abuse prosecutions where the trier of fact must determine only whether the charged conduct occurred and the perpetrator's identity.

We note that defendant's cross-examination of plaintiff's expert adequately protected against the trial court giving undue weight to the expert's opinion that plaintiff suffered from PTSD as a result of defendant's abuse. See Cappiallo v. Northrup, 150 Vt. 317, 319-20, 552 A.2d 415, 417 (1988) (with assistance of cross-examination, it is for fact-finder to measure worth of expert's opinion); cf. MMOE v. MJE, 841 P.2d 820, 826-27 (Wyo.1992) (evidence of psychologist concluding that mother had sexually assaulted child was admissible; "the existence of sexual abuse and the method of determining whether the son had been sexually abused became a battle between experts," which trier of fact could resolve by deciding which expert was more convincing). We conclude that the family court judge properly exercised his discretion in admitting the evidence after finding the expert's opinions helpful "to understand the evidence" bearing on property distribution and maintenance.

We briefly address defendant's two other arguments concerning property division and the award of permanent maintenance. Defendant attacks the property distribution as overwhelmingly one-sided in plaintiff's favor. That characterization might be accurate if we ignore the value of a condominium in Craftsbury Common, which the court included as...