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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-253

                                       JANUARY TERM, 2015

 David Finlayson                                       }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit,
    v.                                                 }    Family Division
                                                       }
                                                       }
 Linda Finlayson                                       }    DOCKET NO. 269-9-12 Wmdm

                                                            Trial Judge: Katherine A. Hayes

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

        Wife appeals from a final divorce judgment of the superior court, family division. She
contends the trial court erred in dividing the marital estate by: (1) failing to give sufficient weight
to the identity of the party through whom certain marital property was acquired; and (2) failing to
sufficiently consider husband’s expectation of inheritance through a family testamentary trust.
We affirm.

        Following a lengthy marriage, the parties were divorced pursuant to a final order issued
in May 2014. They had three children, all of whom had reached the age of majority. Both
parties were in their fifties at the time of the divorce, in reasonably good health, and employed
full time, husband as a self-employed plumber and wife as a nurse. Neither party sought spousal
maintenance.

         The court found that husband was the beneficiary of a testamentary trust established in
his father’s will, which authorized the payment of not only income but principal to his
stepmother, in accordance with her needs, and on her death to be divided equally between
husband and his brother. At the time of the father’s death in 2006, the trust had a value of
$780,978. In September 2013, its value had been reduced to $640,058. At the time of the
divorce, husband’s stepmother was 71 years old, and in reasonably good health. The court found
that there was a “significant probability” that husband would inherit some funds from this
account upon his stepmother’s death, but that “there [was] no competent evidence as to the
specific value of any such inheritance” or the date of inheritance. The court thus concluded that
while it could properly “consider” husband’s possible future acquisition of funds from the family
trust, in light of his stepmother’s age and health it was “quite possible that [his] share of the trust
will be significantly less than 50% of the present value of the account,” or it could ultimately be
“more than that amount.”           See 15 V.S.A. § 751(b)(8)(A) (providing that court “may
consider . . . competent evidence as related to [the parties’] expectations of gifts or an
inheritance” but may not “speculate” as to the value of the gifts or inheritance absent “competent
evidence of such value”).
        In dividing the marital estate, the court determined that—in regard to funding the parties’
respective retirements—it would not assign husband an interest in any of wife’s accumulated
retirement assets “in the expectation that he will receive sufficient funds from his family trust,”
and the court thus awarded wife all of “her retirement assets, which have a total value of
$79,324.” The balance of the marital estate the court determined to divide equally. It awarded
wife the marital home and a Merrill Lynch investment account containing funds which she had
inherited from her grandmother and her father, and the increase in value of the funds during the
marriage. To offset these awards, the court awarded husband “the sum of $170,632,”
representing his share in the equity of the residence and the Merrill Lynch investment account.

       Wife subsequently moved to reconsider and amend the judgment. The court granted the
motion in part, finding that it had overstated wife’s retirement funds by $23,808, leaving a total
of $56,516, but otherwise declined to modify the judgment. This appeal by wife followed.

       Our review is deferential. The family court enjoys “broad discretion when analyzing and
weighing the statutory factors” governing the division of a marital estate. Wade v. Wade,
2005 VT 72, ¶ 13, 178 Vt. 189. The family court’s responsibility when fashioning an equitable
award is to “explain the underlying rationale for its decision,” which this Court will not disturb
absent a showing that the family court abused its discretion. Id.

        Wife first contends that, in dividing the funds in the Merrill Lynch account, the court
erroneously failed to consider “the party through whom the property was acquired,” as permitted
by 15 V.S.A. § 751(b)(10)), and that, if it had considered the origin, “a disproportionate share of
the Merrill Lynch account should have been awarded to [wife].” The record does not support the
claim. The court addressed this factor directly, finding that the Merrill Lynch funds were
derived from wife’s inheritances, while also noting that a portion of the funds had enabled the
parties to build a barn and horse paddock on the property and to remodel their kitchen, while
further observing that husband had used funds provided by his father to pay off a mortgage. As
we have explained, the source of an asset is not necessarily of “controlling” significance in a
property division, but one factor among others in the determination of an equitable division.
Culver v. Culver, 133 Vt. 191, 193-94 (1975) (“[T]he original source of funds from which
marital property was acquired is not of controlling significance in resolving the issue of property
disposition.”). Here, the trial court relied on the length of the marriage and the parties’
respective contributions, ages, and incomes to settle on an equal division of the principal marital
assets. Wife has not shown that this was an abuse of the court’s broad discretion. Accordingly,
there is no basis to disturb the award.

        Wife also contends the trial court erred in failing to offset “something close to the present
value of 1/2” of the testamentary trust in which husband is a co-beneficiary. She maintains that
the court found an “equal chance” that the corpus of the trust would grow or decline, and
therefore should have utilized its current value. She questions the equity of concluding that a
party with $55,516 in retirement assets is “in the same position, looking toward retirement,” as a
party with a half-interest in a trust with a current value of $640,000. The court did not, however,
find an “equal chance” that the trust would grow or decline, but merely noted that both were
possible, and that while it was likely husband would inherit some funds, there was no evidence in
the record to place a specific value on the amount of husband’s inheritance. Under these
circumstances, we cannot conclude that the trial court abused its discretion in considering the
testamentary trust in assigning the retirement assets without placing a specific value, current or
otherwise, on the trust corpus. See Wade, 2005 VT 72, ¶ 13 (noting trial court’s “broad
                                                 2
discretion” in analyzing and weighing property-distribution factors); 15 V.S.A. § 751(b)(8)(A)
(providing that trial court may consider expectation of inheritance but “shall not speculate as to
the value of an inheritance or make a finding as to its value unless there is competent evidence of
such value”). Accordingly, we find no basis to disturb the judgment.

       Affirmed.



                                                BY THE COURT:


                                                _______________________________________
                                                John A. Dooley, Associate Justice

                                                _______________________________________
                                                Beth Robinson, Associate Justice

                                                _______________________________________
                                                Harold E. Eaton, Jr., Associate Justice




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