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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2010-268

                                          MAY TERM, 2011

 Lee Boisvert                                          }    APPEALED FROM:
                                                       }
                                                       }
    v.                                                 }    Superior Court, Chittenden Unit,
                                                       }    Family Division
                                                       }
 Jacques Boisvert                                      }    DOCKET NO. 580-7-09 Cndm

                                                            Trial Judge: M. Patricia Zimmerman

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

        Wife appeals from a final divorce judgment, asserting that the trial court abused its
discretion in dividing the marital property and awarding spousal maintenance. We affirm.

         As the trial court summarized, this was “a long term marriage with a modest standard of
living during the marriage.” The parties were married in 1974 and had two children, a daughter
and son, who were both adults at the time of these proceedings. Father was 61 years old at the
time of the hearing and had worked for many years on the night shift for the postal service,
earning a current base salary of $51,000 per year plus extra pay for overtime, holiday, and night
shifts that increased his compensation to as much as $71,000 annually. He was planning to retire
in the near future. Mother, who was 56, had little education and had worked a variety of jobs,
earning a maximum of $34,800 per year, but had been unemployed since 2004.

       Although a long term marriage, mother left the family home in 1996 to live separately
and did not return until ten years later, in 2006. She moved out again in 2009, and was living
with her brother at the time of the final hearing. Although the parties’ son was 26 years old at
the time of the hearing, he suffers from mental health problems that render him unable to live
independently, and thus he remained in the marital home under the care and support of husband.

        Following an evidentiary hearing, the court issued a final order and judgment of divorce
in June 2010. The court awarded the bulk of the marital assets to husband. This included the
marital home, which had an assessed value of $214,600, but which the court considered to be
inflated, and husband’s Post Office pension plan, which had a current value of $218,500, and
would provide benefits of approximately $1000 per month when husband turns 62. The court
awarded mother $40,000 from husband’s $79,000 Thrift Savings Plan account—the Thrift
Savings Plan is a federal retirement savings program, distinct from husband’s Post Office
Pension—as well as husband’s Prudential whole life insurance policy, which had a cash value of
almost $20,000. The court also awarded wife spousal maintenance of $200 per month for ten
years. This appeal followed.

        Wife contends the trial court’s division of marital assets was so inequitable as to
constitute an abuse of discretion. The court’s statutory duty is to “equitably divide and assign”
the marital property in light of a number of factors, including the length of the marriage, the age,
health, income, and earning power of the parties, the source of the property, and the parties’
respective contributions, monetary as well as nonmonetary. 15 V.S.A. § 751(a), (b). The trial
court enjoys broad discretion in considering these factors and is not required to weigh them
“with mathematical precision.” Dreves v. Dreves, 160 Vt. 330, 333 (1993); see also Slade v.
Slade, 2005 VT 39, ¶9, 178 Vt. 540 (mem.) (“Dividing property to achieve an equitable result is
not a science susceptible to hard and fast rules . . . .”). Thus, we will not disturb the trial court’s
decision absent an abuse of discretion, although a very large disparity in the award of assets may
warrant a “close look” to ensure that the court acted within its broad discretion. Daitchman v.
Daitchman, 145 Vt. 145, 150 (1984).

        Wife asserts that, in awarding a relatively high percentage of the marital assets to
husband, the trial court failed to give sufficient weight to the parties’ long marriage, wife’s
contributions both financially and as a homemaker, and the disparity in the parties’ respective
incomes and prospects for future earnings. Wife’s claim fails to consider, however, that a
portion of the assets awarded to husband included over $10,000 in funds set aside for the benefit
of their son and daughter, whom husband had been supporting in various ways both financially
and otherwise for many years. The court also credited wife with having received $16,000 in
credit card charges paid by husband, as well as a $14,000 court settlement and an $11,000
retirement account, all of which were marital assets that wife had recently spent for herself.

        Furthermore, the record shows that the trial court fully appreciated the parties’ lengthy
marriage, but found that it was mitigated by wife’s voluntary ten-year absence, between 1996
and 2006, from the marital home. Although the reason for wife’s absence was ostensibly to care
for her mother, the court found, and the record showed, that wife lived in her own apartment
during most of this period of time in order to be closer to work. Furthermore, although wife
claims that she contributed financially and non-monetarily to the family home, she conceded—
as husband confirmed in his testimony and the court found—that she contributed nothing to the
payment of the mortgage, groceries, or any household expenses since 1996, when she moved out.
The court also found, and the record showed, that husband served as the primary care provider
for the parties’ emotionally troubled son, not only during wife’s ten-year absence but also during
much of the time before she left. Husband worked the night-shift for the post office and testified
that he would routinely return home in the morning and—with the assistance of his daughter—
prepare the son for school, take him to medical appointments, accompany him to school
meetings, and otherwise attend to his special needs.

        As for the parties’ income and employment prospects, the trial court was careful to
recognize husband’s greater income, but also found that he was sixty-one years old and about to
retire, which would reduce his income substantially. The court further noted that wife was six
years younger than husband, in reasonably good health, and could be expected to seek additional
training and return to the work force. To provide support in the interim, the court awarded wife
more than half, or $40,000, of husband’s Thrift Savings Plan account, and husband’s Prudential
whole life insurance policy with a cash value of nearly $20,000, for a total of about $60,000, as
well as $200 per month spousal maintenance for a period of ten years.

        Thus, contrary to wife’s claim, this not a case where the trial court failed to provide
careful and reasoned findings based on the record evidence to support the disparate property
division. Cf. Harris v. Harris, 162 Vt. 174, 183 (1994) (reversing award of approximately eight
percent of marital estate to wife where “the only tenable reason the court gave for its minimal
award to the mother” was that most of the assets “came from the paternal grandfather”); Dreves.
160 Vt. at 334-35 (reversing property award where court failed to adequately explain facially
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inequitable division apart from bare explanation that most assets were originally attributable to
husband). Rather, the court explained that it had deliberately structured an uneven property
distribution based on the record and the findings described above. We cannot conclude,
therefore, that the decision was unreasoned or clearly erroneous, and thus find no basis to disturb
the award.

        Wife also claims specific inequity in the award to husband of the marital home, asserting
that the trial court failed to consider wife’s contributions to the household and improperly
considered the interests of the parties’ mentally disabled adult son. The claim is unpersuasive.
The court recognized that there was “some evidence that [wife] contributed some of her salary to
the household” before 1996, and husband testified that wife had performed some “traditionally
female” responsibilities during this time, but—as noted—the weight of the evidence showed that
husband had principally cared for the children and paid all of the carrying costs of the home. A
court may properly take into account the parties’ contributions in awarding the marital home, and
we therefore find no error in this regard. See Williams v. Williams, 158 Vt. 574, 577-78 (1992)
(holding that trial court’s discretion in awarding marital home is “broad,” and may factor in all of
the statutory criteria, including the parties’ respective contributions). As for the parties’ son,
while the statute refers to the “desirability of awarding the family home . . . to the spouse having
custody of the children,” 15 V.S.A. § 751(b)(9), the statutory factors are not exclusive, and we
discern no reason why the court could not consider the uncontroverted evidence of father’s plan
to continue to care for the parties’ disabled adult son in the family home. See Mizzi v. Mizzi,
2005 VT 120, ¶ 5, 179 Vt. 555 (mem.) (noting the “nonexclusive” nature of the statutory criteria
for dividing marital property under 15 V.S.A. § 751(b)).

        Wife also contends that the court improperly denied her an interest in husband’s pension
on the basis that he was the sole contributor to the asset. A court may consider the source of a
marital asset—including a pension plan—in determining its proper distribution and may award a
pension exclusively to the party whose contributions created it where the court finds it to be
equitable. See Myott v. Myott, 149 Vt. 573, 578-79 (1988) (upholding court’s award of
husband’s pension to husband free and clear of any interest in wife where statutory factors
supported overall property division). Here the court found that wife had contributed little to
husband’s ability to work and fund the pension plan, and concluded that it was equitable that
husband receive the asset free of any interest of wife. The court was within its discretion in so
concluding, and we discern no basis to disturb its decision.

       Finally, wife contends the court’s award of spousal maintenance was insufficient. “A
court has broad discretion in determining the amount and duration of a maintenance award, and
we will set it aside only when there is no reasonable basis to support it.” Stickney v. Stickney,
170 Vt. 547, 548-49 (1999) (mem.). Wife asserts that the award of $200 per month is inadequate
to meet her needs and fails to account for the parties’ respective incomes. In making the award,
the court here specifically found that the $60,000 property award to wife could be used for
investment or to meet her living expenses, and also found that wife was able to work and would
be expected to seek employment to supplement the property settlement. These were proper
considerations and were supported by the record evidence. See 15 V.S.A. § 752(b)(1) (in
determining maintenance award, court may consider “the property apportioned to the party” and
“the party’s ability to meet his or her needs independently”). Wife claims that, to meet her
reasonable needs, she would have to supplement the maintenance award by earning as much as
$33,000 to $36,000 per year, which she argues is unrealistic and unreasonable. The court found,
however, that wife had earned $34,800 per year in her last job, in 2003, a finding which she does
not challenge. Thus, the record does not support wife’s claim.

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            Wife also summarily claims that the court improperly calculated husband’s support of
their adult son into the property and maintenance awards. The court merely noted that husband
had the responsibility of caring for their son and was dedicated to continuing to do so. As
discussed, we find no error in this regard.

       Affirmed.

                                            BY THE COURT:


                                            _______________________________________
                                            Denise R. Johnson, Associate Justice

                                            _______________________________________
                                            Marilyn S. Skoglund, Associate Justice

                                            _______________________________________
                                            Brian L. Burgess, Associate Justice




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