Turner v. Turner

• Decision Date: 16 January 2004
• Docket Number: No. 03-068.,03-068.
• Citation: 844 A.2d 764
• Court: Vermont Supreme Court
• Parties: Brenda TURNER v. David TURNER.

844 A.2d 764

Brenda TURNER v. David TURNER.

No. 03-068.

Supreme Court of Vermont.

January 16, 2004.

Present: AMESTOY, C.J., DOOLEY, JOHNSON, SKOGLUND and REIBER, JJ.

ENTRY ORDER

¶ 1. Wife appeals from the trial court's final divorce order. She argues that the trial court erred in: (1) determining the value of the parties' second home; (2) unfairly dividing the marital assets; and (3) refusing to award the full amount of attorney's fees that she requested. We affirm in part and reverse and remand the trial court's partial award of attorney's fees.

¶ 2. Husband and wife were married for approximately sixteen years and have one child together. They were separated in July 2001, and wife initiated divorce proceedings. Both parties are in their late forties and in good health. Both are employed. Wife proposed a property distribution that would afford her approximately 39% of the value of the marital property, while husband would receive 61%. After a hearing, the court made extensive findings and distributed the parties' assets. Although the court disagreed with several of wife's proposed valuations of the marital assets, such as the value of the marital home and husband's business, it did not disagree with the general plan of distribution that she proposed. The court awarded wife the marital assets she requested, which resulted in husband receiving a 57% share of the marital assets and wife a 43% share.

¶ 3. The court also awarded wife $1000 of the $8000 in attorney's fees that she incurred. The court explained that under the "American rule" of attorney's fees parties are generally expected to bear their own fees in litigation unless a statutory or rule-created exception exists. The court found that while certain statutory exceptions existed, none applied in this case, and there was no general right to attorney's fees in divorce proceedings under Vermont law. Thus, the court declined to consider the parties' respective incomes and financial circumstances in making its award. The court concluded that, in the absence of any generalized statutory authority to award attorney's fees, it could depart from the American rule only in an "exceptional case," and then only where the party against whom fees were sought acted in an obstructionist or unconscionable manner. See DJ Painting, Inc. v. Baraw Enters., Inc., 172 Vt. 239, 246, 776 A.2d 413, 419 (2001). After reviewing the pleadings in the context of the overall case, the court concluded that wife had been forced to pay for five hours of extra legal work due to husband's unnecessary intransigence. It thus awarded her $1000 and denied her request for additional attorney's fees. Wife filed a post-judgment motion for new findings, conclusions of law, and order, which the court denied in all aspects relevant here. Wife then appealed to this Court.

¶ 4. Wife first argues that the court erred in determining the fair market value of the parties' second home ("little house"). Specifically, she argues that the court erred by subtracting the costs needed to improve the property from the appraised value, rather than accepting the appraisal "as is" and adding those numbers to the appraisal if, in fact, those expenditures were incurred.

¶ 5. We find no clear error in the court's determination of the property's fair market value. See Kanaan v. Kanaan, 163 Vt. 402, 405, 659 A.2d 128, 131 (1995) (Court will not disturb trial court's findings of fact unless they are clearly erroneous). The trial court is entitled to wide deference on review because it is in a unique position to assess the credibility of the witnesses and weigh the evidence presented. Id. In this case, the appraiser assessed the "as is" value of the property at $115,000. The appraiser noted that the house needed extensive repairs, including repairs to the roof, porch, septic system, bathroom, and interior surfaces, which reduced its value by $7000. The court agreed with appraiser on the cost of the repairs; contrary to appellant's argument, however, the court did not subtract those costs from the property value. Rather, in its final order, the court explicitly rejected the appraiser's estimate with regard to the "as is" value of the property, stating that "upon review of the appraisal and based on the testimony of the parties and [the appraiser], the court agrees with the defendant that the Little house is worth less than [the appraiser] suggests. Accordingly, the court concludes and finds that the Little house has a present value of 108,000." The court's finding is supported by the evidence, and it is not clearly erroneous.

¶ 6. Wife next argues that the court erred in distributing the marital property. Specifically, she maintains that she did not seek 39% of the marital assets, as the court found, but instead requested an equal distribution. She asserts that the court improperly ignored her request that husband pay her $26,932 to equalize her proposed distribution. She also maintains that the court made a finding of fault, but failed to follow through on its finding in distributing the assets. Thus, she argues that the court's findings are clearly erroneous "because it failed to consider many factors, including fault and appreciation of assets as well as major situations that would have made the distribution of assets more equitable."

¶ 7. The division of marital property is governed by 15 V.S.A. § 751, which grants the court authority to "equitably divide and assign the property," and sets out a number of factors that the court may consider in making its decision. Cabot v. Cabot, 166 Vt. 485, 500, 697 A.2d 644, 654 (1997). The trial court has broad discretion to consider the statutory factors and fashion an appropriate order, but it must provide a clear statement as to what was decided and why. Id. We have noted that the distribution of property is not an exact science and, therefore, all that is required is that the distribution be equitable. Lalumiere v. Lalumiere, 149 Vt. 469, 471, 544 A.2d 1170, 1172 (1988).

¶ 8. In this case, the court generally followed wife's plan in distributing the parties' assets. Wife's distribution plan contained the following statement: "$26,932 to equalize from second mortgage on little house plus $1,593.13 reimbursement." The evidence indicates that there is no mortgage on the little house. However, wife testified at trial that it would take about $27,000 to equalize the property distribution and make up the difference between the profit from the sale of the big house and the value of the little house. She stated that husband could take out a mortgage on the little house to pay whatever property settlement was necessary. While the court did not directly address this request, it considered the statutory factors and made extensive findings to support its award. The court noted that the little house had been in husband's family for many years, and that he brought it into the marriage. The court did not find fault, as plaintiff urged. The court awarded wife all of the marital assets she requested. As a result, wife received approximately 43% of the marital assets while husband received approximately 57%. In support of its award, the court explained that, because both parties were gainfully employed and healthy, and in the absence of fault, and because both are capable of working for many more years, the amount of property awarded to each did not need to be precisely equal to be fair. The court explained that the parties appeared to live a modest middle-class lifestyle and dividing the property in a roughly unequal fashion was not unfair to either. We conclude that the court's award was equitable, and we find no abuse of discretion.

¶ 9. Finally, wife asserts that the trial court erred in refusing to award her the full amount of attorney's fees that she requested. She argues that the court misstated the law governing the award of attorney's fees in divorce cases. We agree. Attorney's fees are recoverable in divorce actions generally as "suit money." See 15 V.S.A. §§ 606, 607; Downs v. Downs, 159 Vt. 467, 471, 621 A.2d 229, 231 (1993); Milligan v. Milligan, 158 Vt. 436, 444, 613 A.2d 1281, 1286 (1992) (trial court may award attorney's fees in a divorce action in its discretion). The assessment of such fees is proper "`where justice and equity so indicate.'" Nevitt v. Nevitt, 155 Vt. 391, 399, 584 A.2d 1134, 1139 (1990) (quoting Peatman v. Peatman, 140 Vt. 532, 534, 442 A.2d 1290, 1291 (1982)). The primary consideration in awarding attorney's fees is the ability of the supporting party to pay and the financial needs of the party receiving the award. Id. (citing Ely v. Ely, 139 Vt. 238, 241, 427 A.2d 361, 363 (1981)). As we explained in Ely, 139 Vt. at 242, 427 A.2d at 364:

the peculiar nature of divorce and similar actions, involving almost always the financial circumstances and abilities of the parties as matters in controversy, and being matters of common occurrence in the trial courts, obviates the necessity for a separate hearing, or the taking of particular evidence, on the question of awarding of attorney fees or suit money. In the usual, and vast majority of, cases such allowance borders on judicial routine, and is

...