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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-310

                                       JANUARY TERM, 2015

 Tracey Bushey                                         }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
    v.                                                 }    Family Division
                                                       }
                                                       }
 William Bushey                                        }    DOCKET NO. 415-5-13 Cndmd

                                                            Trial Judge: Linda Levitt

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

        Husband appeals a final divorce order of the superior court, family division, dividing the
parties’ marital property and awarding wife maintenance. We reverse and remand.

        The family court made the following unchallenged findings. The parties, both in their
late forties, were married in 1986 and have two adult children. Wife has cancer. She raised the
parties’ children and was primarily a homemaker during the parties’ long-term marriage. She
also briefly worked as a cleaner and helped out in husband’s auto-garage business. Husband was
the primary wage-earner during the marriage. In addition to running the garage, he engaged in
landscaping and logging and performed other odd jobs. Husband’s garage paid the parties $2500
per month in rent, and they also received $1688 per month for having a cell tower located on the
marital property. Husband claimed that his auto business paid him $600 per week. The parties’
recent income-tax returns reported adjusted annual gross income between $44,000 and $99,000,
but the parties also had significant unreported income, which allowed them to purchase
numerous pieces of equipment and various types of vehicles valued at over several hundred
thousand dollars.

        The parties own three parcels of real property: (1) the marital home, which was appraised
at $304,000 and had an outstanding mortgage of $187,000, $122,000 of which husband used to
purchase an excavator and land in the Town of Lowell; (2) land and a cabin in the Town of
Lowell, which was appraised at $160,000; and (3) the land and building housing the garage
business, appraised at $205,000. Husband’s auto business retains an excessive amount of cash
that has varied over the years. The business itself has not been appraised.

        The family court indicated in its decision that it would attempt to equitably divide the
parties’ real and personal property. The court stated that it would not value the numerous items
of personal property, but rather would award the property to the party possessing and making use
of it. The court further stated that the real estate “shall be divided equally,” and that husband
would “make up the disparity in values by paying off $122,000 of the [marital] home’s mortgage
and executing a note” to wife. In the section of its decision labeled “ORDER,” the court
awarded wife the marital home and the cell-tower lease, with husband paying off $122,000 of the
home’s mortgage within six months and wife refinancing in her name only. The court awarded
husband the Lowell property, the commercial property, and the auto business, but did not
explicitly place any value on the business apart from the value of the land and the building. The
court stated that “to equalize the value of the real property awarded to each party,” husband
would be required to pay wife $63,000 through a three-year note accruing interest at six percent
a year. Finally, the court awarded wife $2000 in monthly maintenance until she reached the age
of sixty-seven.

        On appeal, husband argues that the family court committed reversible error: (1) by failing
to divide the real property equally as it explicitly stated it intended to do, and (2) by not equitably
dividing the parties’ extensive personal property.

         As for the real property, the trial court was not required to divide that property equally.
See Gravel v. Gravel, 2009 VT 77, ¶ 16 (“The distribution of property is not an exact science; all
that is required is that the distribution be equitable.”). However, when a trial court states that it
intends to make an equal distribution of property, its failure to substantially do so is reversible
error. Kanaan v. Kanaan, 163 Vt. 402, 415 (1995). We infer from the trial court’s brief opinion
that the court sought to equalize the division of the three parcels of real estate as follows. First,
the court awarded wife the marital home. Apparently because $122,000 of the mortgage
encumbering the marital home had paid for the Lowell property and excavator, both of which
were awarded to husband, the trial court essentially shifted the indebtedness associated with
those items to husband by requiring him to pay $122,000 of the mortgage debt on the house
within six months. After husband paid down the mortgage by $122,000, the equity in the marital
home awarded to wife would be $239,000. Second, the court awarded husband both the Lowell
property, valued at $160,000, and the commercial property, valued at $205,000, for a total of
$365,000. Third, the court required husband to pay wife $63,000 to equalize the parties’ real
property—for wife, $239,000 plus $63,000 for a total of $302,000, and for husband, $365,000
minus $63,000 for a total of $302,000.

       If the trial court was aspiring to divide the real property equally, its math undercut this
goal: when the trial court shifted the debt associated with the Lowell property to husband
($100,000 of the $122,000 which husband was required to pay toward the mortgage on the
marital residence), it did not adjust the equity or net value assigned to the Lowell property
accordingly. So the trial court treated the Lowell property as unencumbered, with a net value of
$160,000, when in fact husband was required to pay $100,000 of debt associated with that
property. Husband is right: the net effect of this property division was to award wife a
substantially unequal share of the real property.

        With respect to the parties’ personal property, husband contends that the court improperly
awarded wife personal property valued at approximately $100,000 more than the personal
property awarded to him. We reject this argument for several reasons. First, the trial court did
not purport to divide the parties’ personal property equally. It sought only to divide such
property equitably. Second, husband’s own exhibit that he cites in support of his argument does
not in fact support the assertion that the court awarded wife $100,000 more in personalty than
husband. It is not clear how husband reaches this alleged disparity in the distribution of the
parties’ personal property, but, among other things, he attributes to wife cash that the court found
wife used to pay off mutual credit-card debts and her monthly expenses during the parties’
separation, and he also attributes to her $19,700 for a kitchen and bed, even though the court
refused to accept that value for those items. Setting aside these two errors in husband’s apparent
calculations, the discrepancy in the court’s personal property awards is nowhere near $100,000.
Third, husband’s valuations do not include a value for husband’s ongoing business, apart from
the value of the real estate on which it is located. The trial court likewise did not assign a value
to the business, but did award it to husband. The trial court could reasonably have considered
the business to have some value apart from the real property and machinery and tools valued by
the parties.

        In short, husband has failed to demonstrate that the family court’s decision to award
personal property to the party in possession of the property resulted in an inequitable division of
marital property. Kasser v. Kasser, 2006 VT 2, ¶ 30, 179 Vt. 259 (“The family court has broad
discretion in dividing marital property, and we will uphold its decision unless its discretion was
abused, withheld, or exercised on clearly untenable grounds.”).

        Because the reality of the trial court’s property-division award does not substantially
square with the aspiration it expressed, we remand for a redetermination of the appropriate
property division. The trial court is not constrained to revisiting the property division solely as it
relates to real property, but may in its discretion revise the property division relating to personal
property if it concludes that doing so is appropriate to accomplish the goals of 15 V.S.A. § 751.
Moreover, in light of our reversal of the property division, the trial court on remand may also
reconsider the maintenance award. See Billings v. Billings, 2011 VT 116, ¶ 26, 190 Vt. 487
(recognizing that property division and maintenance decisions are interrelated, and concluding
that reconsideration of property distribution warranted reconsideration of maintenance decision).
The court need not hold a new evidentiary hearing, and may rely on the admitted exhibits and
transcript from the initial hearing.

       Reversed and remanded for further proceedings consistent with this opinion.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice

                                                 _______________________________________
                                                 Harold E. Eaton, Jr., Associate Justice
