This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic Reporter
APPEALED FROM: Superior Court, Windsor Fam. Division. DOCKET NO. 67-2-08 Wrdm. Trial Judge: William D. Cohen.
Reiber, C. J., Skoglund, and Crawford, JJ.
In the above-entitled cause, the Clerk will enter:
Wife appeals a final divorce order issued by the family division of the superior court, arguing that the court abused its discretion by inequitably dividing the marital property and by not awarding her maintenance. We reverse and remand the matter for the court to reconsider the property distribution and maintenance.
The parties married in 2001, when wife was in her early forties and husband in his late forties. No children were born of the marriage. The parties separated in 2007, when wife moved into what had had been the parties' vacation home in Weathersfield, Vermont, which husband purchased in 2002. What had been the marital home is located in New Jersey.
The Weathersfield property has been the subject of other legal proceedings. Husband refinanced the property on three occasions, the last in 2008. In her February 2008 divorce filing, wife claimed the property as her primary residence and asked the court to award it to her free and clear of any encumbrances. In January 2011, the mortgagee commenced a foreclosure action on the property, naming only husband as a defendant. Despite not being named in the action, wife filed an answer and affirmative defense claiming that she had established a homestead interest in the property before husband had refinanced it in 2008, thereby making the 2008 mortgage inoperative to convey her homestead interest. The mortgagee responded that wife did not have a homestead interest in the property because she possessed neither a legal nor an equitable title to the property. The civil division of the superior court granted summary judgment to wife, and husband appealed. We recently reversed that decision, concluding that wife had no legal or equitable title to, and therefore no homestead interest in, the property. See Brattleboro Savings & Loan Ass'n v. Hardie, 2014 VT 26, ¶ ¶ 17, 19.
Meanwhile, on May 20, 2011, following a March 17, 2011 hearing, the family division of the superior court made brief oral findings and conclusions in support of its final divorce order. The court first concluded that, although wife was entitled to approximately $15,000 in maintenance arrearages based on a temporary order requiring husband to pay wife $2500 per month in maintenance, it would not award ongoing maintenance beyond June 2011. In so ruling, the court noted the parties' high standard of living during the marriage, husband's reduced income, wife's minimal efforts to obtain work during the previous two years, and wife's employability. In making these general findings, the court did not specify the income or expenses for either party so as to enable this Court to evaluate whether the court acted within its broad discretion in declining to award maintenance.
Regarding the property division, the family court explained what property it was awarding to whom, but provided no reasoning for its decision and did not indicate the statutory factors upon which it was basing its decision. Essentially, apart from personal property, the court awarded wife the Weathersfield property and husband the rest of the marital estate, including the marital home and other real property, as well as his entire retirement account. Regarding the Weathersfield property, the court made wife responsible for all debts and encumbrances associated with the property.
The ensuing July 1, 2011 final judgment order, which was prepared by husband's attorney, contained no findings or conclusions, but confirmed the court's decision from the bench. The order awarded wife the Weathersfield property free and clear of any interest by husband but subject to all debt associated with the property, including the 2008 mortgage. Wife was ordered to indemnify husband against any debt from the property and to refinance the property within six months so as to remove defendant's name from the existing mortgage.
On August 31, 2012, in response to post-judgment motions from both parties, the court confirmed that it had intended to award wife the Weathersfield property subject to the 2008 mortgage and promissory note. The court noted that wife knew the property was " underwater," but nonetheless wanted to live there and save the house from foreclosure " because she felt (correctly) that she had a reasonable defense to the foreclosure proceedings. In other words, [wife] asked for the risk, because she saw the potential benefits." The court further explained as follows:
As a result, the court agreed to " award" [wife] the house, along with the accompanying note and mortgage, thus assigning to [wife] the benefits and risks of her choice. It was then up to [wife] to see what she could do in terms of defending against the pending foreclosure action (she was successful) and refinancing the debt obligation (success to be determined). The court notes that [wife] is not without leverage in the refinancing negotiations: she holds title to a house free and clear, and the bank is holding unsecured debt. In the final analysis, the court is persuaded that the equitable ...