Young v. Young, 28-75

• Citation: 134 Vt. 87,349 A.2d 225
• Decision Date: 09 December 1975
• Docket Number: No. 28-75,28-75
• Parties: Elaine P. YOUNG v. Sidney E. YOUNG.
• Court: United States State Supreme Court of Vermont

Page 225

349 A.2d 225

134 Vt. 87

Elaine P. YOUNG v. Sidney E. YOUNG.

No. 28-75.

Supreme Court of Vermont.

Dec. 9, 1975.

Theodore S. Mandeville, Jr., Bishop & Crowley, Inc., Rutland, for plaintiff.

Bloomer & Bloomer, Rutland, for defendant.

Before BARNEY, C. J., SMITH, DALEY and LARROW, JJ., and GREGG, D. J., Specially Assigned.

DALEY, Justice.

The plaintiff was granted a divorce from the defendant by the Rutland Superior Court on December 26, 1974. The defendant does not challenge the divorce itself in his appeal here, but he raises several issues relative to the lower court's decision requiring equal division of the substantial real and personal properties acquired by the parties during their marriage and the procedures by which this division is to be carried out.

Some of the issues now before us were presented to the court below by the defendant's motion, dated December 27, which was never heard. While a hearing in that forum undoubtedly would not have precluded subsequent appeal, certainly in defendant's confusion caused by the existence of two sets of findings of facts and conclusions of law in this case could have been cleared up. The prior set, filed November 14, was essentially a prelude to a judgment order to be drawn by counsel for the plaintiff. Containing no order granting or denying a divorce, it did not settle 'the rights of the parties on the issues made by the pleadings.' Woodward v. Porter Hospital, 125 Vt. 264, 265, 214 A.2d 67, 70 (1965). The second set, which contains the order granting the divorce and from which the appeal lies, supersedes the first and is controlling for purposes of review.

Furthermore, comparison of the two sets reveals that the rights of the defendant have in no way been impaired or prejudiced. The dual findings and conclusions are identical in substance.

The defendant contends that the order requiring equal division of the properties must also be reversed because it is based upon a false premise. In support of this argument, he points to two conclusions of law made by the lower court:

That the absence of liquidity places both parties in a very precarious financial position, and the Court concludes therefore, that the properties owned by the parties should be equally divided between them. (Emphasis added).

That the only liquid asset is the securities.

We will not speculate as to the intent of the lower court underlying the first conclusion. By either of its two possible plain meanings, it is a nonsequitur. Neither the absence of liquidity nor the parties' precarious financial position by themselves justify equal division.

Nor are either among those factors set forth in 15 V.S.A. § 751. Under that statute, in disposing of the property subsequent to the granting of a divorce, when there are no minors involved, the court should consider the respective merits of the parties, the condition in which a divorce would leave them, and the party through whom the property was acquired. It is vested with wide judicial discretion in this area, and the burden is on an appellant to show that this discretion was wrongfully exercised. van Loon v. van Loon, 132 Vt. 236, 238, 315 A.2d 866 (1974); Lafko v. Lafko, 127 Vt. 609, 617, 256 A.2d 166 (1969).

The trial court's conclusion concerning the absence of liquidity is a legally insufficient basic reason for ordering equal division of the properties. While the same result might have been, and still may be, reached without this conclusion, and while some findings were made that show that the § 751 factors were considered, it would work an injustice on the defendant to allow that order to stand where the absence of liquidity apparently received greater consideration. See ...