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

ENTRY ORDER

SUPREME COURT DOCKET NO. 2010-197

MARCH TERM, 2011

Jodi Milko } APPEALED FROM: }

v. } Windham Family Court } James J. Milko } DOCKET NO. F260-8-08 Wmdm

Trial Judge: Katherine A. Hayes

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

Husband appeals from the family court’s final divor ce order. He argues that the court erred in dividing the marital estate and awarding s pousal maintenance. We affirm.

The parties married in 1990, and wife filed for div orce in 2008. Following a three-day divorce hearing, the court issued a written order d ividing the marital estate and awarding wife permanent spousal maintenance. The court found as follows. At the time of the final divorce order, wife was forty-six years old and husband was forty-seven. Both are in good physical health, although husband had a slight reduction of the use of his arm from a 2007 injury. The parties have an eighteen year old daughter who grad uated from high school in June 2009 and was living with mother; husband also acted as a step-pa rent for mother’s older daughter. The court found that husband had begun a relationship with hi s current girlfriend many months before he and wife separated. Wife attempted to resolve the issues in the marriage after learning of the affair, but husband refused.

Turning to the parties’ assets, the court found tha t they owned a home worth $110,000, with a net value of $51,652. They also had various vehicles, some of which had no equitable value due to outstanding loans. The court identifi ed other personal property items as well. In addition wife had a retirement account worth $6326. Husband had three retirement accounts, two of which he had liquidated in early 2009, recei ving approximately $28,000 after taxes. Husband used this money to pay outstanding medical bills of $3339 for himself and the parties’ child, child support of $5752, overdue mortgage pay ments and penalties of $6000, and legal fees of $4413. He used the balance of these funds—appro ximately $11,000—to pay his regular expenses. Husband had one remaining retirement acc ount worth $494 and a life insurance policy with a cash value of $681. The parties had various credit card debts, car loan debts, and personal

loan debts.

The court found that wife worked as a teacher’s aid e, earning $1762 per month. Her monthly expenses were approximately $2900, and she no longer enjoyed the marital standard of living. Since the separation, wife had to cut back on food, eating out, clothing, gifts, and travel.

Husband worked as a diesel truck mechanic for nearl y twenty years. During the marriage, he2

often worked multiple jobs. He was laid off in Nov ember 2009, but found new employment in December 2009 and earned $3120 per month. Husband lived with his girlfriend in a house that she owned. He did not pay rent but paid approximat ely $800 per month for household bills, as well as a portion of the grocery bills. Husband cl aimed other expenses of $1200 per month. The
court noted that, unlike wife, husband was able to eat out and go out to drink and dance once a week. Husband’s girlfriend also took him on a five -day Caribbean cruise in 2009.

Based on these and other findings, the court consid ered the factors set forth in 15 V.S.A. § 751. It found that this was a long-term marriage and the parties’ assets had a total net worth of $60,255. In determining this amount, the court inc luded the value of the retirement accounts liquidated by husband, although it also included as legitimate liabilities the mortgage payments and medical bills that he paid with these funds. T he court did not include as legitimate debts the child support or attorney’s fees because they were clearly not joint debts and it was inappropriate for husband to have used a marital asset to pay suc h debts without consent from wife or the court. The court found that husband had nearly twi ce the earning capacity of wife, and a much greater capacity for future acquisition of assets. His social security income would also be much higher than wife’s would be. Additionally, the cou rt noted that husband had established a new relationship with someone who owned her own home an d had steady employment. In his current situation, he had relatively low living expenses an d access to real estate. Wife was not in a similar position. The court found that the parties ’ daughter continued to reside at home and that she was legitimately somewhat dependent on wife for housing, food, and other resources given her limited earnings and college plans. The court considered this as a factor in determining how

to allocate or divide the marital residence.

The court recognized that husband chose to end the parties’ relationship, but it did not find that his conduct was intentionally cruel or ab usive. It did not conclude that his actions warranted any significant adjustment of the divisio n of the marital estate. Instead, it held that the division of the marital estate must be adjusted to account for husband’s unauthorized disposition of the retirement accounts and for his much greater ability to earn and obtain additional assets in the future. To this end, it awarded wife the marit al home, with the requirement that she provide husband $14,000 of its equitable value by 2013. Th e court credited husband with the full aftertax value of the liquidated retirement accounts as part of his property award, and awarded him his remaining retirement account and life insurance policy. Wife received her own retirement account. Additionally, each party retained the veh icles in his or her possession and financial responsibility for those vehicles. Husband was awa rded his diesel mechanic tools, a motorcycle, a plow truck (if it was still in wife’s possession) , a pickup truck bed, and a dirt bike, while wife received a lawnmower. Each party was responsible f or his or her own credit card debts, personal loans, and attorney’s fees. The court explained th at the intended effect of the above awards was to divide the marital estate roughly equally.

As to spousal maintenance, the court found that wif e did not have the ability to meet her

own needs based on her own income alone and that sh e could not maintain the standard of living enjoyed during the marriage. It considered the fac tors set forth in 15 V.S.A. § 752, and awarded permanent maintenance of $700 per month, to be redu ced to $500 per month when wife turned sixty-seven. Husband appeals from the court’s orde r.3

Husband asserts that the court improperly based its decision on the fact that he had an extramarital relationship and was living with his g irlfriend. He points to the court’s recognition that he shared monthly expenses with his girlfriend , as well as the effect that his relationship had on his standard of living, his ability to acquire f uture assets and income, and his ability to pay maintenance. Husband argues that the “totality of the decision” indicates that the court may have been trying to punish him for finding a new relatio nship. In a related vein, he argues that the court’s findings indicate a predisposition toward w ife’s case. He objects to the court’s finding that wife had lost seventy-five pounds due to emoti onal anxiety—not because it is factually inaccurate but because he alleges that the court fa iled to adequately acknowledge that he suffered an arm injury in 2007. Husband maintains that the court “misunderstood” the evidence in other ways as well, including its assessment of: the part ies’ work capacities; wife’s expenses, income, and ability to earn income in the future; husband’s assault of wife’s oldest daughter; evidence regarding vacations during the marriage, the value and existence of various vehicles, and his willingness to engage in marital counseling. He as serts that these errors, as well as the court’s failure to include wife’s tax refund as income, led to a miscalculation of his spousal maintenance obligation. Finally, he argues that the court erre d in awarding wife the marital home and in assessing the value of this property.

As we have often repeated, the family court has bro ad discretion in dividing marital property, and we will uphold its decision unless it s discretion was abused, withheld, or exercised on clearly untenable grounds. Chilkott v. Chilkott , 158 Vt. 193, 198 (1992). The party claiming an abuse of discretion bears the burden of showing that the trial court failed to carry out its

duties. Field v. Field , 139 Vt. 242, 244 (1981). We have noted that the distribution of property is not an exact science and, therefore, all that is required is that the distribution be equitable.

Lalumiere v. Lalumiere , 149 Vt. 469, 471 (1988).

Husband fails to show that the court abused its dis cretion here. As presented above, the court properly considered the factors set forth by statute, weighed the evidence, and divided the marital estate in a roughly equal fashion. Wife re ceived approximately $44,000 of the parties’ assets, while husband received approximately $39,00 0. There is no support for husband’s assertion that the court was trying to punish him f or having a girlfriend, or that it was predisposed to wife’s case. Indeed, the court expr essly stated that husband’s extramarital affairs did not warrant any significant adjustment to the p roperty award. Certainly, it was appropriate for the court to consider husband’s current living situation in assessing his financial obligations and needs and his current standard of living. See 15 V.S.A. § 751(b) (in dividing property, court may consider all relevant factors, including liabil ities and needs of each party); id . § 752(b)(6) (in determining maintenance amount, court shall con sider all relevant factors, including ability of spouse from whom maintenance is sought to meet his reasonable needs while meeting needs of spouse seeking maintenance).

It was also fair for the court to credit husband wi th the value of the retirement accounts that he liquidated. Husband argues that he was ent itled to dispose of these accounts pursuant to a 2008 temporary maintenance and child support order. In that order, a magistrate recognized that husband was temporarily unemployed but scheduled to return to full-time work in April 2009. In discussing husband’s $800 maintenance obligation to wife, the magistrate stated that husband “may draw upon his resources to meet his obligation s until he is back to work full-time.” Husband asserts that the magistrate could only have been referring to the retirement accounts at4

issue. Yet these accounts did not belong to husban d—they were marital property. 15 V.S.A. § 751(a) (“All property owned by either or both of the parties, however and whenever acquired, [is] subject to the jurisdiction of the court.”). Indeed, the parties had been directly ordered by th e family court in August 2008 not to dispose of any m arital assets, including pension plans. As the family court observed during trial, it would be ver y troubling if the magistrate had issued an order to the contrary. Even if husband somehow cou ld justify taking such action unilaterally, it was certainly equitable for the court to allocate t he value of these accounts to husband in dividing the marital estate. See Clayton v. Clayto n , 153 Vt. 138, 142-43 (1989) (stating that family court had a duty to consider bona fides of h usband’s post-separation transfer of assets in assessing value of all property interests of each p arty under 15 V.S.A. § 751(b)(6)).

The court similarly did not err in determining the value of the marital home, and indeed, husband does not even claim that this finding is cl early erroneous. According to husband, the court should have given more weight to evidence tha t supported his position on value. As we have often stated, it is the exclusive role of the family court, not this Court, to weigh the

evidence. See Kanaan v. Kanaan , 163 Vt. 402, 405 (1995) (explaining that trial co urt’s findings

are entitled to wide deference on review because it is in unique position to assess credibility of witnesses and weigh evidence presented). Wife test ified that the house was worth $90,000 to $100,000, and she was competent to so testify. See 12 V.S.A. § 1604 (“The owner of real or personal property shall be a competent witness to t estify as to the value thereof.”). Husband believed it was worth between $125,000 and $135,000 . The court acted well within its discretion in concluding that the value lay between these two positions and estimating its value at $110,000. Husband points to a property tax bill as further support for his position on value. This document was excluded on hearsay grounds without ob jection, however, and husband waived any claim of error on appeal. See Bull v. Pinkham Eng’g Assocs. , 170 Vt. 450, 459 (2000) (“Contentions not raised or fairly presented to the trial court are not preserved for appeal.”).

Finally, husband fails to show that the court erred in awarding wife the marital home while he received a cash portion of the equity. By dividing the estate in this manner, the court did not order husband to support his child past the age of majority by providing her a residence or paying for her college education, as husband sug gests. It did not order husband to provide for the child because she was “potentially disabled.” The cases cited by husband do not persuade us otherwise. See, e.g., Milligan v. Milligan , 158 Vt. 436, 443 (1992) (in dividing marital esta te, family court had no power to order that certain pen sion funds be used to create educational trust for children’s use beyond age of majority); Beaudry v. Beaudry , 132 Vt. 53, 56 (1973) (parent could not be ordered to pay child support once chil d turned eighteen). The family court may consider all relevant factors in equitably dividing marital property and in determining which party, if either, should receive the marital home. In reaching its conclusion, it was reasonable for the court to consider the fact that the parties’ da ughter, who had just graduated from high school and planned to attend a local college, was residing with wife. We find no basis to disturb the court’s decision. In so concluding, we reject husb and’s various challenges to the court’s assessment of the weight of the evidence and his qu ibbling over minor facts that have little to no impact on the court’s final decision. Husband fail s to show that the court abused its discretion in dividing the marital estate.

We similarly reject husband’s challenges to the cou rt’s maintenance award. The family court may award maintenance, either rehabilitative or permanent, to a spouse when it finds that5

the spouse lacks sufficient income and/or property “to provide for his or her reasonable needs” and the spouse is unable to support himself or hers elf “through appropriate employment at the standard of living established during the civil mar riage.” 15 V.S.A. § 752(a); see Chaker v.

Chaker , 155 Vt. 20, 25 (1990). The maintenance must be i n the amount and for the duration the court deems just, based on the consideration of sev en nonexclusive factors. See 15 V.S.A. § 752(b). Once the family court finds grounds for awarding maintenance, it has broad discretion in determining the duration and amount. Chaker , 155 Vt. at 25. We will set aside a maintenance award only if there is no reasonable basis to suppo rt it. Id

.

As with the property award, all of husband’s argume nts go to the court’s assessment of the weight of the evidence. None demonstrate that the court’s award lacks a reasonable basis. The parties were married for almost twenty years. Wife earns $1762 per month, and she claimed monthly expenses of approximately $2900. This incl uded a monthly mortgage and home equity loan payment of $856, a car lease payment of $300, and a minimum credit card payment of $229. Husband was ordered to pay $700 per month in mainte nance. While husband complains, for example, that wife is paying for their child’s food and cell phone expenses, the maintenance award in fact falls $500 short of wife’s claimed mo nthly expenses. Husband’s remaining challenges, such as whether wife should be credited with the value of her income tax return and whether wife should be expected to work more hours, are of a similar nature. It is for the family court, not this Court, to evaluate the weight of th e evidence. We have considered all of husband’s arguments and find them all without merit

.

Affirmed

.

BY THE COURT:

_______________________________________ Paul L. Reiber, Chief Justice

_______________________________________ John A. Dooley, Associate Justice

_______________________________________ Marilyn S. Skoglund, Associate Justice