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Jaro v. Jaro

Supreme Court of Vermont

September 14, 2018

Donna M. Jaro
Todd M. Jaro

          Supreme Court On Appeal from Superior Court, Chittenden Unit, Family Division. Kirstin K. Schoonover, J.

          Catherine E. Clark of Clark, Werner & Flynn, P.C., Burlington, for Plaintiff-Appellee.

          Peter F. Langrock of Langrock Sperry & Wool, LLP, Middlebury, for Defendant-Appellant.

          Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          ROBINSON, J.

         ¶ 1. Husband, Todd M. Jaro, appeals a final divorce order issued by the superior court, family division. Husband challenges the court's property division, and asserts the court erred in awarding him an amount of spousal maintenance outside the statutory guideline without stating a reason for diverging from the guideline. 15 V.S.A. § 752(b)(8). We affirm.

         ¶ 2. The trial court found the following. The parties married in 1989 and separated in 2016-a long-term marriage. When wife Donna Jaro filed for divorce in September 2016, she was fifty years old and in good health. Husband was fifty-four years old and was in relatively good health, although he had well-managed diabetes and, beginning late in the marriage, depression. The parties have two grown children.

         ¶ 3. Neither party attended college. Wife spent long hours taking care of the household and children, and was also the primary breadwinner. She works for the Department of Homeland Security, with an annual salary of $135, 000. Husband worked as a mechanic in various repair shops during the marriage, and at one point set up a home garage. The parties spent at least $70, 000 to set up this venture. Husband was voluntarily underemployed throughout the marriage. He currently has a job doing maintenance work and working on cars for forty hours per week at eighteen dollars per hour, grossing around $38, 000 per year. The trial court found that husband could earn as much as twenty-five dollars per hour, or $52, 000 per year, given his work experience and skills as a mechanic.

         ¶ 4. In 2007, husband started his own business as an independent tool distributor. The parties bought a $75, 000 truck and $40, 000 in tools for this business, which operated at a loss. The truck and tools are currently at an auction house. Wife proposed to sell them to help pay marital debt; she asked to control the sale because she stated that husband had refused to cooperate. Wife believed she could get $50, 000 for these items, which the court found credible. The record reflects that husband valued these items at $75, 000 and was willing to accept them in "his column" of the property division balance at that higher value.

         ¶ 5. Wife introduced a January 2015 report showing accounts receivable from this tool business of $66, 223 and testified that they were collectible. Husband acknowledged that he was not actively pursuing those accounts; he explained that they were old and opined that he could collect $5, 000 of that amount. The court found that "with a little effort" husband could probably collect at least $20, 000.

         ¶ 6. Both parties had retirement accounts. Wife had a Thrift Saving Plan (TSP) and a government pension (FERS). The value of the TSP was $268, 260.00 at the time of separation, and by June 2017 it had increased to $305, 401.99. However, wife owes $16, 000 in loans taken against the TSP account during the marriage to support husband's businesses and to pay off marital debt. Husband held three retirement accounts totaling $15, 219.

         ¶ 7. The marital home, where wife was living at the time of the final divorce, was worth $355, 000, with a mortgage of $286, 672 and net equity of $68, 238. The court itemized nearly $39, 000 of marital debt in husband's name, as well as around $134, 000 in joint marital debt, including the $16, 000 loan against wife's TSP account and nearly $80, 000 of student loan debt for the parties' daughter on which wife was a cosigner.

         ¶ 8. The trial court made extensive findings based on testimony from wife and the daughter that husband was physically abusive to both throughout the marriage. The court found that husband had harmed the family physically and emotionally as a result. The court found that there was no evidence that these behaviors were caused by husband's depression. In addition, the court described various instances of financial mismanagement and other malfeasance by husband after separation, resulting in unpaid bills and depletion of marital assets.

         ¶ 9. Based on the above, the court explained that, although it normally divides marital property evenly in a long-term marriage, in this case husband's abusive behavior during the marriage and his actions at the end of the marriage and ensuing separation that depleted the parties' assets prompted the court to depart from an even split. The court awarded husband $90, 000 from wife's TSP-substantially less than half of the value of the parties' combined retirement accounts (which totaled around $320, 000 at the time of the final hearing). With respect to wife's FERS pension, the court awarded husband forty-five percent of the marital portion. The court awarded the marital home to wife and required her to pay husband half the equity-$34, 119. The court awarded wife additional marital property worth $86, 754 and debt of $66, 465.[1] The assets awarded to wife included husband's ...

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