Wood v. Wood

• Decision Date: 07 June 1983
• Docket Number: No. 248-81,248-81
• Citation: 465 A.2d 250,143 Vt. 113
• Parties: Bailey C. WOOD v. Prudence WOOD.
• Court: Vermont Supreme Court

Page 250

465 A.2d 250

143 Vt. 113

Bailey C. WOOD v. Prudence WOOD.

No. 248-81.

Supreme Court of Vermont.

June 7, 1983.

Valsangiacomo & Detora, P.C., Barre, for plaintiff-appellant.

Lisman & Lisman, Burlington, for defendant-appellee.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

BILLINGS, Chief Justice.

Plaintiff-appellant Bailey C. Wood was granted a judgment of divorce on April 30, 1981, on the ground that he and his wife, Prudence Wood, had lived separate and apart for six consecutive months with the resumption of marital relations not reasonably probable. 15 V.S.A. § 551. The court found both parties to be at fault, but found that plaintiff's fault was "substantially greater than that of defendant." The decree granted care and custody of the parties' two minor children to defendant, with plaintiff given reasonable visitation rights. It further provided for a division of the parties' real and personal property, with approximately two-thirds to defendant, and one-third to plaintiff. Finally, it ordered plaintiff to pay alimony in the amount of $50.00 per week for a period of three years, "unless [defendant] sooner remarries, dies or becomes employed full time, at which time same shall terminate," and to pay weekly child support in the amount of $75.00 per child, or $150.00 total, until each child reaches majority. On appeal, plaintiff contests those portions of the decree regarding alimony, support, and property division.

An extensive factual recitation is unnecessary. Suffice it to say that after several years of marital tension, plaintiff commenced an affair with a female co-worker. Defendant first learned of this affair some two years later, when her husband's girlfriend unexpectedly arrived at the Wood household and "explained everything" to her. Plaintiff, for a time, agreed to terminate the relationship, but after a few months the affair recommenced. In 1978, plaintiff left defendant and their children, first residing with his girlfriend for several months, and then taking an apartment of his own. At the time of trial, plaintiff was still involved in that relationship.

In addition, sometime just prior to trial plaintiff learned that he had been named as beneficiary to one-third of a late aunt's estate. Although he had seen the will, looked over the inventory and discussed the matter with his brother, an attorney acting as estate executor, plaintiff was unable to recall at trial anything about his expected inheritance: neither how much he was due to receive nor when he might expect to receive it. In this regard, the court found that plaintiff had "made no effort to determine when distribution will be made and in what amount."

Plaintiff first claims that the alimony and child support order is not supported by the findings, and that the findings in turn are unsupported by the evidence. Plaintiff particularly takes issue with the following finding:

30. While plaintiff's wages alone are insufficient to cover substantial alimony and child support payments, considering the inheritance and the fact that he periodically stays with [his girlfriend] and eats at her residence, thereby reducing his own expenses, he is able to pay $50.00 weekly in alimony and $150.00 per week in child support.

Plaintiff maintains that any evidence at trial concerning the inheritance was far too vague and uncertain to support the court's order, and that there was little evidence, and no findings, concerning any savings which might accrue to him on account of his visits with his girlfriend. Therefore, he concludes, the only basis for the order was his salary, and since the court found his wages alone "insufficient," he argues that the entire alimony and support order must fail.

We cannot agree. It was undisputed that at the time of trial plaintiff earned a salary of $25,000 annually, with a take home amount of approximately $340.00 per week. Moreover, there was evidence that in arriving at this net amount plaintiff may have inflated some of his weekly deductions and exemptions. For instance, he listed a weekly telephone deduction of $25.00, when in fact some weeks this amount was not deducted at all. In addition, he had taken only two exemptions for tax purposes, when he was actually eligible to claim three exemptions and thereby increase his weekly take home pay. Defendant, on the other hand, was unemployed at the time of hearing, was receiving food stamps, and was several thousand dollars in debt. The court found that her weekly expenses, for herself and her children, were $317.54, and that other than the alimony and child support from plaintiff, which at the time of trial were $500 in arrears, she had no other income.

While the disputed finding is subject to differing interpretations, we are bound, if at all possible, to construe it in support of the judgment. Villeneuve v. Town of Waterville, 141 Vt. 154, 156, 446 A.2d 358, 359 (1982). Bearing this in mind, we note that the finding does not simply state that plaintiff's wages were insufficient to cover alimony and support payments; rather, it states that such income alone could not cover "substantial" alimony or support. A reasonable construction of this language is that the court refused to impose too heavy a monetary burden on plaintiff. Instead, it ordered him to pay only $50.00 per week in alimony, to cease after three years, and $75.00 per week in support of each child. Given the relative resources and needs of the parties, this can hardly be considered a "substantial" monetary burden.

Moreover, under 15 V.S.A. § 754, as in effect at the time of trial, the court was granted wide discretion to award alimony as it deemed just, having due regard to the circumstances of the parties. In ordering support payments pursuant to 15 V.S.A. § 292, then in effect, the court was free to award such amounts as it deemed "expedient." Therefore, the trial court could properly consider both plaintiff's pending...