### VERMONT SUPREME COURT Case No. 23

- AP

- 095 109 State Street Montpelier VT 05609

- 0801 802

- 828

- 4774 www.vermontjudiciary.org

Note: In the case title, an asterisk (*) i ndicates an appellant and a double asterisk (**) indicates a cross

appellant. Decisions of a three

- justice panel are not to be considered as precedent before any tribunal.



### ENTRY ORDER

OCTOBER TERM
, 2023

Brian Leffler* v. Kristina L effler } APPEALED FROM: } } Superior Court, Franklin Unit

, Family Division } CASE NO. 99

- 5

- 20 Frdm Trial Judge: Elizabeth Novotny

In the above

- entitled cause, the Clerk will enter:

Husband appeals from the family division ’ s final divor ce or der , arguing that the court erred in its allocation of parental rights and responsibilities (PRR) and parent

- child contact (PCC), division of marital property , and award of spous al maintenance to wife

. We affirm the provisions of the final order pertainin g t o PRR and PCC and reverse and remand as to the
spous al

- maintenance award and property division

. The parties divorced following a thirty

- two

- year marriage d uring which they had s even children, two of who m are minors. The family d ivision ’ s f ina l order inco rporated the parties ’ complete agreement as to PRR and PCC for the minor children and their partial agreement as to the division of marital property and debt s

. At the time of the final hearing, husband and the two minor c hil dr en resided in Utah, while wi fe rema ined in Vermont

. The parties ’ minor son

, B.L.
, lived with father, while their minor daughter

, M.L.
, lived with one of the ir adult daughters. The stipulation provided th at husba n d w ould have primary PRR for B.L. and wife would have primary PRR fo r M .L ., who
was to contin ue living with her si ster unless or until wife moved to Utah , i n wh ich case M.L. would reside with wife

. The agreement also included a PCC schedule

.
The prop e rty s tipulation provided , among other things, that wife would be award ed the

ma rital hom e , as well as one

- half of husba nd ’ s military retirement pay when he began to dra w it

. The prop erty allocated to husband under the agreement included eigh t ve hicles, amo n g these a 2017 Do dge Ram , a fifth

- wheel trailer, and a 2018 Chevy Cr uz e

. The parties reserved several contested issues fo r reso lution by the trial court, includ ing wife ’ s request for sp ousal maintenance

. B e for e addressing these outs tan ding questions, the trial court made the following findings o f fact

.2 At the time of the f inal hearing, hu s band was fifty

- four yea rs old and the Deputy Chief Planner for the Army Reserve 76th Operational Resp onse Command

. Wife was fifty

- three and ha d recently begun working for an airline

. Early in the parties ’ marriage, husband and wife bo th worked outside the home

. However, as their family grew, wife needed to stay ho me t o care for their c hil d ren and main tain the household

. The parties at times struggled to pay th eir bills , but a s the older children moved

o ut and husband ’ s incom e increased

, their fina ncia l situation improved.

Wife h olds a n ass ociate ’ s degree in account i n g, but wa s unable to complete a bachelor ’s degr ee due to the demands of a household with seven children. Pri or to the first day of the final hearing, the most sh e ha d e ar ned in a year was $35,000 and her retirement savings were nominal

. T he court found that wife was in good he alth and c ould be expect ed to work until she reache d th e age of sixty

- seven, but that even if she completed a bachel or ’s degree or acq uire d a new tr ade skill , sh e lack ed sufficient remaining t ime in the job market t o ad vance her earnings

. Wife ’ s gross monthly income was $4718 , while her reaso nable monthly expenses were $7664

.
In addition to accruing twenty

- four years of military se rvi ce , h usband wo rked for several years at IB M during a break from t h e m ilitary. In the cour se o f his career , husband a cquired lea dership experien ce and a skill set in planning emergency responses to chemical and b iological hazards

. The court found that lik e wif e, h usban d was i n good heal th and c ould be e x pec ted to work full

- t ime until the age of sixty

- seven. His gross mon thly inc ome was $1 3 ,289, including approximately $3000 in non salar y benefits for meals an d housing , and his reasonable monthly
expenses were $ 2965.

H usband will rece ive a $ 520 0 monthl y pension upon his retire ment from the militar y, to be divided equally with wife pursuant to the parties ’ stipulation

. H e plan s to re tire in December 2026 at fifty

- eight

, and subsequently work part

- time a s a subs titute te acher. Given hu sband ’ s h ealth, skills, and experience, t he family division concluded that this choice would represent a volunt ary reduction in hours and i ncome.

Ba sed on these and other findings, the family division resolved all outs tandi n g i ss ues as to the division of property

. Wife received 65% of the equity in the marital estate, while husband received 35%

. The co urt found that wife was entitled to compensatory maintenance because her significant contributions to the househol d ov er the pa rt ies ’ long marriage made h usband ’ s earnings possible. It set maintenance at $ 3500 pe r month until husband ’ s projected r etirement from the military in December 2026

— at which point, the court anticipated that both parties would beg i n d rawing on husband ’ s p en sion

— and $500 thereafter unti l the dea th of one of the parties

.

O n appeal, husband challen ges the allocation of PRR and PCC, the division of marital property , and the spou sal maintenance award. We review the family division ’ s determination s on these poi nts for a n abuse of discretion, and its factual findings f or clear error

. S ee MacCormack v. Mac Cormack , 2015 VT 64, ¶ ¶ 3, 10 , 1 99 Vt. 233 ; Delozier v. Delozier , 161 Vt. 377, 381

- 82 (1994)

.
At the outs et, we note that “ o ur review is confi ned to the record and evide nce adduced at
t rial [,] ” and “ we cannot cons i der facts not in the record. ” Hoove r v . Hoover
, 171 Vt. 256, 25 8 (2000) (declining t o consider ad ditional facts proffered on appeal an d not part of trial court3 record ) ; V.R.A.P. 10(a ) (providing t hat r ecord on appeal consists of items filed in su perior c o urt , transcript of proceedings, and re cord of actions from super ior cour t)

. Husband ’ s briefs * inc lude

var ious uncited factual assertions which are no t par t of the record below

. Cf. V.R.A.P. 28(a)(4) ( providing that appellant ’ s brief must con tain citatio n s t o part s of t he record on which ap pellant rel ies ). Wife ’ s bri ef includes a motion to strike por tions of husband ’ s principal brief on this basis

. Though wife ’ s motion is denied because it does not id entify sp ecific portions of husb and ’ s brief w hic h are outside the rec ord or arguments base d thereon, we will not consi der husband ’ s asserti ons where the y are unsupported by the record. See Hoover , 171 Vt. at 258.

To the extent husband suggests we should consider information o utside th e record bec a use he alleges he was not afforded ad equate h earing time below and receiv ed ineffective
repres entation, we disagree. Assuming for the sake of argument that these circumstance s were present, n either would alter the scope of appellate review

. See id

. Fur t her , h usband raised no objection to the way t he family division allocated hearin g time below a nd has theref ore failed to
preserve any related challenge for appeal. LaRiviere v. She a , 2023 VT 33, ¶ 11 ( finding husband fa iled to pres erve argumen t th at trial court did not afford him adequate hearing time to present evi dence where he did no t raise it be low). Nor is this a proceeding in which husband ha s a right
to effective assistance o f counsel

. S tate v . C lark , 164 Vt. 62 6, 627 (1995 ) (mem.) ( “ A cla im of ineffective assistance of counsel re st s on the constitutional ri ght to counsel under the Sixth and Fourt eenth Ame ndments

. At a proceeding where there is no constitutional right to counsel, such a claim is inapplicable. ” ( citation omi tted) ) ; s ee a lso , e

. g., Emery v. Em ery , No. 2006

- 299, 2007 W L 5313349, *1 (Vt. May 1, 2007 (u npub. mem.) [ h ttps://perma. cc/67QF

- KRTU ] ( rejecting wife ’ s argument that she received in effective assistance of counsel in divorce proceeding and notin g that “ [a] p art from sho w ing a violation of du e process in certain typ es of civil case s involving a constitutional libe rt y interes t, there is no con sti tutional or statut ory r ight to effective assistance of counsel in civil cases, and th e only potential rem edy is a mal prac tice sui t ag ain st the attorney ” ).

W ith this context, we turn first to husband ’ s challenge to the cour t ’ s o rder as to PRR and PCC

. Husband argues that the court erred in awarding primary PRR for M. L. to wife , given tha t M. L. lives in Utah with her adult sist er, while wi f e l ive s in Vermont

. He contends th at th is arrangement is unfair to their adult daught er because th e court neither consulted with her

, provided for her to re c eive money for M.L. ’ s support, nor awarded he r legal authority to act on M.L. ’ s beh a l f. Where these arguments inco rporate factual a ssertions which are not part of the

re cord

, we do no t consider th ose assertions for the reasons set forth abo ve. See Hoover , 171 Vt.
at 258.

As described above

, t he f amily division ’ s or d e r as t o PRR and PC C in c orp orates a signed agreement between the pa rties resolving all related issues

. A t no time did h usband objec t to the
court ’ s incorporation of the a greement ; instead, when que r ied by the court, the parties each
te stified th at th ey en tered t h e a greement voluntarily and believed its terms were in the i r minor children ’ s best interests

. Th e court then f ound the agre ement was in the c hildren ’ s bes t int erests and , as the parties request ed, incorpora ted it in the fi nal d ivorce o rde r.

* After submitti ng his principal and reply briefs, husba nd filed a doc um ent styled

“ I nformation B rief

. ” Following an appellant ’ s reply brief, “ [ n]o furt h er brie fs may be filed without Court permi s sion. ” V.R.A.P. 28 (c)

. Because such permission wa s neither sought nor
g ranted, we do not f urther con sider this filing or its en c losures in r esolving this appeal

.4 The family division did not err in finding the agreement was in the chi ld ren ’s best inter ests and adopting it based on the parties ’ test imony

. “ Agreements regar ding pa rental rights and responsibilities are presumptively in th e best inter e s t s of the child, and such agreem ents may be disregarded only when the court finds that the agree ment is no t in th e best inter ests of the ch ild or that i t was in voluntari ly enter ed into. ” Damone v. Damone , 172 Vt. 504, 511 (2001) ; see also 15 V.S.A. § 66 6 ( a) ( “ A ny agreement b etween the p arents that divi des or shares parental rights and respo nsibilit i es shall be presu med to be in the best inte rests o f the child. ” ). It w as for the parties, not the trial court, to determine whether their agreeme nt was also a c ce ptable to their ad ult daughter and make any other arrangements necessary to effectuat e its provisions. And
t hough husband alleges that h e was not aff or ded sufficient time or a mechanism to offer
t estimony from the children relevant to PRR and PCC

, this contention was never presented to the family division

. To the contrary , the record ref lects that a hearing date was reserved for issues

re lated to PRR, but the parties instead chose to present the court with the ir stipulation

. Th e refore, these argument s w ere not preserved f or our review. See Bull v. Pinkham Eng ’ g Assocs. Inc. , 170 Vt. 450 , 459 (2000) ( “Contentions not raised or fairly pres ented to th e trial court are not preserved for appeal. ” ). The cou rt ’ s incorpo r ati on of the parties ’ agreement regard ing PRR and PCC is a ffirmed.

We turn next to the spous al maintenance award

. On appeal , hu sband does not challenge the decision to award m aintenan ce, b ut instead ar g ues that the award should be reduced in both
amount a nd duration b eca use the court : erred in its findings as t o the parties ’ monthly expenses ; d id not appropriately value his c ontributions to the marriage ; should not have conclud ed his pl ans following his projected military retirement represent ed a vo luntary redu ction in wag es and hours ; and or dered maintenance in an amount exceeding that necessary to support wife at the stand ard of living es tablished during the marriage

. Because we agree tha t the family division ’ s finding as to husband ’ s reasonable monthly e xp enses was c lea r ly erro neous , we re verse and remand wit hout reaching the remainder of his arguments.

The calculation of a pro spectiv e obli gor ’ s expenses is foundational to a court ’ s deter minatio n of the amount and duration of maintenance , which is established after consider atio n of “ the abi lity of the spouse f rom whom maintenance is sought to meet [their] reasonable nee ds while meeting those of t he spouse seeking maintenance. ” 15 V.S.A. § 752(b) (6). Here, the court determined that husband ’ s reasonable monthly expen ses were $29 6 5, and then calculated his dispo sable income by d educting this figure from his mont hly income

. It concluded that based on husband ’ s subst antial dispos able income, he coul d well af

ford to make monthly maintenance payments of $3500 through Dece mber 2026 an d $5 00 th erea fter.

“ Although we accord wide discretion to the court in fash i oning a maintena nce award, the award must be supported by sufficient findi ngs. ” Straus s v. St rauss , 160 Vt. 335, 340

- 41 (1993). In reviewing th ose findings , we conside r th em “ in the light m ost favorable to the prevailing party below, disregarding the ef f ect of any modif ying evidence, ” and w e will not set them a s ide unless they are clearly erroneo us. Solsa a v. Solsaa , 2008 VT 138, ¶ 6, 185 Vt. 587 (mem.) (qu otation omit t ed)

. Findings are cl early erroneous wher e they “ are not supported by any reasonable, credible record evidence. ” City of Bu rlington v. Sist ers & B ros. Inv. Grp

. , 20 23 VT 24 , ¶ 1 2

.

T he cou rt based its finding s o n the eviden c e p r esented at th e hearing, w hich did not include husband ’ s financial af fida vit or any similar docume ntation of his monthly expenses.5 H usband testified that he had been paying app roximately $2035 per month “ relat e d t o his livin g expenses, ” but went on to stat e that his “ b ase rent ” was $2135

, whi le th e t otal of his “ rent, ut il ities, inter net, water, sewer , ” was $2965

— precisely the same figure that the trial court found represented h is reasonable monthly expenses

. However, husband immediately went on to say tha t his monthly expense s al so included payments of $12 05 for the Do dge Ram , $ 300 for the fi fth

- whee l trailer

, and $317 for the 2018 Chevy Cruze

— all of which were awarded to him
p ur suant to the partial prope rty sti pulation

— t hat his monthly credit card pay ment s wer e $450

, and that he owed a debt to an other adult child in the a mount of $17,500 and ha d agre ed to ma ke payment arrangements followin g the finalization of the divorce

.
Wi fe did not cont rover t husband ’s test imony as to his expenses

. Nor can we discer n any basis i n the record on which th e court might have determined t hat husband ’ s monthly expense s were substantially less th an w hat he testi f ied to

. Though husband was living with a new partner , there was no evidence of her income beyond an acknowl edgmen t that she “ h as survivor benefits ”

re lated to an ex

- husband

. A cour t “ ‘ may consider the ef fect t h at [ a new partner ’ s ] income has on the needs and expenses ’ ” of a party from whom maintenance is sought in assessing the ir ability to meet their reasonable n eeds while me eting the needs of the s pouse seek i ng mai ntenance

. Wea ver v. Weaver , 2017 VT 58, ¶¶ 32

- 33 , 2 05 Vt. 66 (q u oti ng Mayville v. Mayvill e , 2010 VT 94, ¶ 16, 189 Vt. 1 )). H owever, we cannot conclude that the court did so here in the absenc e of any finding about hus band ’ s new par tner ’ s income

. Si milarly, w hile hus b and receives a $3000 monthly ben efit f rom the mili t ary for housi ng and sustenance

, it is apparent that the court did not de duct this amount in determining husband ’s reasonable monthly
expe nses because

, in weighing the § 752(b ) factors, the court alternativ ely c alculated husband ’ s disposa ble mon thly income b y d educting his expenses from both his monthly net and gross pay , the latter of which included the hous ing and sustenance benefit

.

Th a t the court d id not explain how it de termin ed husband ’ s reasona ble m onthly expenses is no t itself re v e rsa ble error. Kanaan v. Kanaan , 163 V t . 402 , 407 (1995) ( “ Although it is bette r practice to spe cify the subsidiary facts u p on which ultimate facts are ba sed, it is no t rever sible error to fa il to do so. ” ). However, t h e c ourt ’ s findin g is identi c a l t o an amount that husband testified represents only one portion of his monthl y e xpenses, and we can identify no other record evidence which mi gh t support th e finding

. See City of Bu rlington , 20 23 VT 24, ¶ 1 2

. We therefore conc lude that

, even v iewed in the light most favorable to wife, t he court ’ s finding as to husban d ’ s reasonabl e monthly expenses was clearly erro neous

. Solsaa , 2008 VT 138, ¶ 6

. We reverse and remand the spousal maintenance awar d

.

Th i s c oncl usion necessitate s remand of the proper ty division because it is closely related to the maintenance award. S ee, e.g., Dow ns v. Downs , 154 Vt. 161, 168 (1990) ( “ [B]ecause the property division and maintenance award a re so closely related , the prope r ty di vi sion must be

vaca ted in order to allow the trial court leave to revise i t if necessary. ” (citation omitted)). The court f ound that the property division favored wife by $44,761, which represented approximately
one y ear of spousal maintenance at $ 3 5 00 pe r month and was the refore “ not a full subs titu te for spousal maintenance

, ” suggesting that the court awarded pr operty in lie u of maintenance. See 15 V.S.A. § 751(b) (providing that in making a property settlement, cou rt may consider “ [w]het h er the property settl ement is in lieu of or in addition to maintenance ” ). In addition, wife requested that as part of the pr operty award, husband be ordered to continue paying hou sehold expenses related to the marital residence unt il it was sold. T he court denied the request, concluding that this need was addressed through the spousal

- maint enance award. For these reasons, the court6 must h ave the opportunity to reconsider the property di vision on remand . We therefore do not reach h u sba nd ’ s challenge s to th e court ’ s division of m arital p roperty.

The trial court ’ s award of PRR and PCC is af firmed. Its decisions concerning spo us al maintena nce and the division of marital property are reversed and rem anded

.

BY THE COURT:

Harold E. Eaton, Jr., Associate Justice

Karen R. Carroll, Associate Justice

Nancy J. Waples, Associate Justice