Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-319

                                         APRIL TERM, 2015

 May Chiles (May Mantell)                              }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Addison Unit,
    v.                                                 }    Family Division
                                                       }
                                                       }
 John Vaughan Chiles                                   }    DOCKET NO. 234-12-12 Andm

                                                            Trial Judge: Linda Levitt

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

       Husband appeals a final divorce order, arguing primarily that the family division of the
superior court abused its discretion in awarding wife maintenance. We affirm.

        The basic facts surrounding the history of the marriage are not in dispute. Wife, forty-
four years old and in good health at the time of the final divorce order, has a master’s degree in
Fine Arts from Stanford University and was working as a graphic designer in Palo Alto,
California for $45,000 per year when in 1999 she moved to Vermont to live with husband.
Husband, fifty-two years old and in good health at the time of the final divorce order, cofounded
a business in the late 1990s fabricating and selling glass heating and blowing equipment. Wife
came into the marriage with few assets and significant debt. By the time the parties married in
2006, the same year their child was born, husband had bought out his partners and became the
sole owner of the business. Since coming to Vermont, wife has worked a series of part-time
jobs, including freelance graphic design and photography, waitressing, and teaching at a local
college. The family court found that her monthly income at the time of the final divorce hearing
was $1473 not including husband’s temporary monthly payments of $843. The court found that
husband had reported a monthly net income of $5100 not including health insurance premiums
paid by his business.

        The parties separated for good in December 2012. They agreed to share physical and
legal parental rights and responsibilities, and thus the only issues at the final divorce hearing
were: (1) how to distribute the marital property; and (2) what, if any, maintenance should be
awarded to wife. Following an evidentiary hearing that lasted just over one day, the family court
issued a decision that: (1) awarded husband approximately ninety percent of the marital assets
totaling a little over $200,000 when factoring in debts; and (2) required husband to pay wife
monthly maintenance in the amount of $1000 per month for five years. Husband appeals,
arguing that the court abused its discretion in making the maintenance award, erred in ruling on
an issue that it had indicated it would not rule on, made certain erroneous findings, and omitted
certain findings. Regarding his first and primary claim of error, husband contends that the
family court erred by awarding maintenance without finding that plaintiff was unable to support
herself through appropriate employment, and by not providing any reasonable basis for the
amount and duration of the award.

        The family court may order rehabilitative or permanent maintenance if it finds that the
spouse seeking an award lacks sufficient income and property to provide for his or her
reasonable needs and “is unable to support himself or herself through appropriate employment at
the standard of living established during the civil marriage.” 15 V.S.A. § 752(a)(2). The court
must enter a maintenance award in an amount and for a duration that it deems just considering all
relevant factors, including: (1) the financial resources of the party seeking maintenance and that
party’s ability to meet his or her needs independently; (2) the time and expense necessary for that
party to acquire sufficient education or training to find appropriate employment; (3) the standard
of living established during the marriage; (4) the duration of the marriage; (5) the age and health
of each party; and (6) the ability of the party from whom maintenance is sought to meet his or
her reasonable needs while meeting those of the party seeking maintenance. Id. § 752(b). “The
reference to reasonable needs should not be looked at in relation to subsistence.” Strauss v.
Strauss, 160 Vt. 335, 338 (1993). As evident from its plain language, the focus of § 752 is “on
the parties’ financial resources, needs, and their relative abilities to become or remain self-
supporting following divorce.” Jenike v. Jenike, 2004 VT 83, ¶ 9, 177 Vt. 502 (mem.). In
general, the purpose of maintenance is “to correct the vast inequality of income resulting from
the divorce and to equalize the standard of living of the parties for an appropriate period of
time.” Strauss, 160 Vt. at 338 (citation omitted). “The purpose of rehabilitative maintenance is
to assist the recipient-spouse in becoming self-supporting.” Id. at 339. The family court “retains
broad discretion in fashioning both the amount and duration of a maintenance award,” Downs v.
Downs, 159 Vt. 467, 469 (1993), and thus we will not disturb a maintenance award unless the
appealing party demonstrates that “there is no reasonable basis to support [it].” Quesnel v.
Quesnel, 150 Vt. 149, 151 (1988), overruled on other grounds by Theise v. Theise, 164 Vt. 577
(1996).

        Husband first contends that the family court erred in awarding maintenance without
finding that plaintiff was unable to support herself through appropriate employment. We
disagree. To be sure, the family court found that wife had not applied for a series of well-paying
jobs that were available to her, and that she could easily increase her monthly earnings,
particularly after the parties’ child started school. The court also found, however, that before
coming to Vermont to live with husband, wife was earning $45,000 per year working as a
graphic designer in the Bay Area of California, but “was unable to earn that amount in
Vermont.” This finding is consistent with wife’s testimony that opportunities for graphic design
work in Addison County, Vermont versus the Bay Area were “[n]ight and day.” The court may
award maintenance to a spouse who lacks income or property to meet his or her reasonable needs
and is unable to support himself or herself through appropriate employment at the standard of
living established during the marriage. Mother’s property award is extremely minimal factoring
in her debt. It is clear that the court factored wife’s lack of effort to maximize her income into
the decision to award husband ninety percent of the marital property. In essence, he argues that
wife’s lack of sufficient effort to achieve full-time employment at the salary she earned in
California should result in both a denial of maintenance and a distribution of property heavily
weighted in his favor.

      The court found that wife’s monthly income was $1473 not including temporary monthly
payments from husband. Wife’s trial exhibit indicates monthly earnings of $1716 from self-
employment and two outside jobs. The court found wife’s monthly expenses to be $4000. Even
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taking into account the $1716 figure, the court’s $1000 in monthly maintenance will still require
wife to earn another $1300 per month, for a total income of $36,000 per year, just to meet her
living expenses, let alone reach the standard of living attained in a marriage with a husband who
earned at least $60,000 per year. In short, the court did not err in awarding maintenance in this
case under the applicable statutory criteria.

        Nor did the court abuse its discretion in the amount or duration of the award. As noted,
the relatively modest $1000 monthly award still requires wife to earn $36,000 per year just to
meet her expenses. The court found that wife was capable of earning more, and in fact the
court’s award will still require her to earn significantly more to meet her expenses. As for the
duration of the award, the parties were married for eight years but separated a year and a half
before the divorce decree was issued. Although the marriage was relatively short and there were
separation periods during the marriage, the parties cohabitated for several years before the
marriage after wife left her job in California to join husband in Vermont. See Wall v. Moore,
167 Vt. 580, 580-81 (1997) (mem.) (concluding that it is appropriate to consider entire length of
cohabitation, not just period of marriage, when equitable) Wife ran a business for years in
Vermont, sometimes at a loss, but she reported earning nearly $13,000 in income from the
business in 2012 and testified that she believed she could be self-sufficient within five years.
Given all of the circumstances, including the length of time that the parties were together, the
parties’ respective financial resources, and the fact that wife was beginning to make a profit with
her business, the court acted well within its discretion in establishing a five-year maintenance
period from the time of the final divorce order. See Johnson v. Johnson, 155 Vt. 36, 42 (1990)
(recognizing difficulty of predicting when spouse would be self-supporting and noting that
disadvantaged party can seek modification if maintenance period proves too short or too long).

        Next, husband argues that the family court deprived him of due process by indicating at
the final hearing that it would not decide how the parties should use the child dependency tax
deduction but then ultimately ordering the parties to alternate the deduction annually. Husband’s
argument is that a constitutional violation occurred because he was unable to argue against the
alternation decision. Assuming husband’s argument would demonstrate a constitutional
violation if he had no opportunity to state his position on allocation of the deduction, we note
that husband’s attorney was able to articulate husband’s position at the final hearing, stating that
wife had not yet demonstrated an ability to earn enough to take advantage of the deduction and
thus the court should not have the parties share the deduction until wife reached a certain level of
income. The court’s preliminary indication that it would not rule on the issue did not preclude it
from doing so upon further consideration. Given the fact that husband made his position clear,
we cannot conclude that the factual predicate for his argument was present.

        Finally, husband challenges three of the court’s findings, as well as the court’s failure to
make other findings. First, husband argues that the court erroneously found that he earned $5100
per month plus the cost of his medical insurance, which was paid for by his business. Husband
contends that this finding is clearly erroneous because, although his business pays his health
insurance premium, that payment is added as income on his tax return. The court’s finding is not
clearly erroneous insofar as husband’s accountant testified that in the most recent year the
business included the premium payments as wages but “in prior years they were not included as
wages.” Moreover, husband’s own testimony indicated that the health insurance payments were
not factored into his calculation of $5094 in monthly income. See Chickanosky v. Chickanosky,
2011 VT 110, ¶ 14, 190 Vt. 435 (“We will . . . uphold the [family] court’s findings of fact unless
they are clearly erroneous, viewing them in the light most favorable to the prevailing party below
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and excluding the effect of modifying evidence. The findings will stand if any reasonable and
credible evidence supports them.” (citation omitted)).

        Husband also challenges the court’s finding that he was physically abusive to wife. This
finding is supported by wife’s testimony that husband physically abused her. In any event, there
is no indication that the family court factored physical abuse into its maintenance decision.

         Next, husband contends that the court erroneously found that wife was unable to earn
$45,000 a year in Vermont. In support of this argument, husband argues that when wife first
moved from California she had a job opportunity in Rutland, Vermont for $50,000 per year.
Wife testified that she was offered a job in Rutland at $50,000 but that when it was time to start
the job she was told that it was not something that they could afford to offer her. As noted, wife
testified that the opportunities for graphic design in the Bay Area and Addison County, Vermont
were “[n]ight and day.” The court’s finding that wife could not earn in Vermont what she earned
in the Bay Area is not clearly erroneous.

        Finally, husband argues that the court erred by not listing as an asset a $3300 retirement
account held by wife and by not making findings on the parties’ standard of living during the
marriage. The court did list as a martial asset wife’s $3300 retirement account. Regarding the
parties’ standard of living during the marriage, the court made findings on each party’s earnings
and expenses, which were a good indication of their standard of living.

       Affirmed.

                                               BY THE COURT:


                                               _______________________________________
                                               Paul L. Reiber, Chief Justice

                                               _______________________________________
                                               John A. Dooley, Associate Justice

                                               _______________________________________
                                               Harold E. Eaton, Jr., Associate Justice




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