Weinstein v. Weinstein, 21-AP-295

Case DateJuly 14, 2022
CourtUnited States State Supreme Court of Vermont

Lloyd J. Weinstein*

Jennifer Weinstein

No. 21-AP-295

Supreme Court of Vermont

July 14, 2022

In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

APPEALED FROM: Superior Court, Bennington Unit, Family Division CASE NO. 23-2-20 Bndm Trial Judge: Kerry Ann McDonald-Cady


In the above-entitled cause, the Clerk will enter:

Husband appeals from the trial court's final divorce order. He argues that the court erred in its spousal maintenance award and in dividing the marital estate. We affirm.

I. Facts and Procedural History

The parties married in 1995, and husband filed for divorce in February 2020. The parties are both 50 years old and in good health. Both are licensed attorneys. They have four children together, all of whom are now adults. During the marriage, husband first worked in his father's law firm and then started his own firm in 2003. He worked full-time at the firm and handled the parties' finances. Wife was responsible for all aspects of caring for the parties' children.

The court found it difficult to quantify husband's income due to his indiscriminate use of the law firm's funds to pay for both personal and business expenses. Based on calculations described in more detail below, the court found husband's current income to be $418,105. Although wife's financial affidavit reflected an annual income of $33,264, based on unemployment compensation, she agreed that the court could impute an annual income to her of $40,000 based on the salary previously paid to her when she worked at husband's firm. The court found it fair and equitable to do so. At the time of the divorce hearing, wife had been offered a full-time job as a personal trainer in New York at a $15 per hour wage with health insurance and benefits.

The parties had numerous marital assets, including the marital home, a ski condominium, an apartment in New York, investment accounts, life insurance, and personal property such as jewelry, silver and gold, and fur coats. Each presented expert testimony regarding the business valuation of husband's law firm. As discussed below, the court found the firm's business valuation to be at least $195,000, relying on the opinion of husband's expert. The court also made numerous findings with respect to the parties' debts, finding that husband should be personally responsible for certain business debts and credit card debts.


In making its property award, the court considered the factors set forth in 15 V.S.A. § 751(b). It determined that the factors, on balance, supported a division of assets as equally as possible with husband responsible for the debt. The court explained that husband had substantially more income than wife due to the parties' agreement during their marriage that he would pursue his legal career while wife raised the children. Husband had much greater earning potential than wife; wife had no independent savings or pension to rely on in the future. The court found that wife's law degree was of limited value to her given the length of time that she had been out of the legal field. The evidence showed that wife lacked the financial means to pay the credit card debt. The court added that wife had no access to the parties' credit cards after March 2020 and husband could not distinguish what balance on the cards was due to expenses paid during the marriage and what had accrued since the parties' separation. The court also ordered husband to pay other debts. The marital home was sold prior to the issuance of the final divorce order and the proceeds from the sale were used to pay for expenses related to the use and maintenance of the home. Recognizing that each party needed a place to live, the court awarded the New York apartment to husband and the ski condo to wife. The court additionally awarded husband his law firm.

The court concluded that wife was entitled to an award of spousal maintenance. This was a long-term marriage where, by agreement, husband pursued his legal career while wife raised their children. As a result, husband could now financially support himself and meet his reasonable needs while wife could not. Husband benefitted financially from having wife care for their children. The court found that the parties enjoyed a very comfortable lifestyle during the marriage. They owned three homes, took lengthy vacations, owned or leased luxury cars, and owned jewelry. Husband could continue to enjoy the standard of living he experienced during the marriage due to his advanced legal career. Wife planned to move to New York City, where her estimated monthly rent for a studio apartment was $3900. The court found that this expense alone would not be covered by wife's present income. It found that wife could not support herself through appropriate employment at the standard of living established by the marriage, even if she were to obtain a position in the legal field. The court found, moreover, that wife made diligent efforts to find a position in the legal field and was not "under-employed" by finding work as a personal trainer.

The guidelines set forth in 15 V.S.A. § 752(b)(9) suggested that a monthly maintenance award between $7562.16 and $12,919 for a duration of nine to twenty plus years was appropriate. The court awarded $12,500 per month to wife for seventeen years (ending when the parties reached retirement age), finding this fair and equitable based on the facts and the factors set forth in § 752(b). The court explained that wife's voluntary decision to pursue a new career persuaded it not to grant wife's request for an award that exceeded the guidelines. The court found husband in contempt for failing to comply with the temporary order. Husband failed to pay many household expenses as ordered, such as the mortgage on the marital home, choosing instead to prioritize payments for expenses incurred by the parties' adult children. It found husband in contempt for this and for failing to timely comply with discovery obligations. The court awarded wife attorney's fees for the discovery sanction and awarded wife the total value of husband's life insurance policy ($106,703) as a sanction for his failure to pay household expenses as ordered, removing this asset from the distribution of the marital estate. Husband appeals from the court's order.


II. Analysis

A. Spousal Maintenance Award

Husband first challenges the spousal maintenance award. He argues that the award bears no rational relationship to the economic realities of the parties' circumstances during the marriage. According to husband, the court failed to adequately justify its decision to make an award at the high end of the guideline range. He contends that the parties' standard of living during the marriage was unsustainable and financed by debt. He argues that the court based its decision solely on his income and failed to consider his debts, his ability to meet his reasonable needs, or wife's reasonable needs and her ability to meet those needs. Finally, he argues that the court's determination of his income was based on speculation and that the court should have imputed income to wife as she is an attorney.

The court may award maintenance to a spouse when it finds that the spouse lacks sufficient income or property to "provide for his or her reasonable needs" and the spouse cannot support himself or herself "through appropriate employment at the standard of living established during the civil marriage." 15 V.S.A. § 752(a); Chaker v. Chaker, 155 Vt. 20, 25 (1990). The maintenance must be in the amount and for the duration the court deems just, based on the consideration of several nonexclusive factors. See 15 V.S.A. § 752(b). "Findings are not required for each factor, as long as the court's decision reflects that the appropriate factors were taken into consideration . . . ." Kohut v. Kohut, 164 Vt. 40, 43 (1995). Once the court finds grounds for awarding maintenance, it has broad discretion in determining the duration and amount. Chaker, 155 Vt. at 25. "A maintenance award will be set aside only if there is no reasonable basis to support it." Id. Our review of the court's factual findings is deferential; its findings will stand unless, "taking the evidence in the light most favorable to the prevailing party and excluding the effect of modifying evidence, there is no credible evidence in the record to support them." Kasser v. Kasser, 2006 VT 2, ¶ 16, 179 Vt. 259.

The court's decision reflects that it considered the statutory factors and exercised its discretion in making its award. Its decision did not rest solely on the guidelines, as husband asserts, nor was it based solely on husband's income. Husband fails to show that the court lacked a rational basis for its decision or that its findings were inadequate to allow this Court to understand "what was decided and why." Dreves v. Dreves, 160 Vt. 330, 333 (1993) (quotation omitted). He fails to show that the court's determination of his income or wife's income was clearly erroneous.

As set forth above, the court found that this was a long-term marriage where wife devoted many years of her time to raising their children while husband furthered his career. Husband's income was significantly greater than wife's income; because wife devoted her time to raising their children, wife had limited earning potential and no retirement savings. Her basic living expenses, including food and rent, would greatly exceed her anticipated income. Husband, by contrast, given his income, "profitable law practice," and earning potential, retained the ability to continue living at the standard established during the marriage. See Weaver v. Weaver, 2017 VT 58, ¶ 22, 205 Vt. 66 (explaining that maintenance award is "appropriate in long-term marriages where the court finds...

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