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= ; &= nbsp; &nb= sp;  = ; &= nbsp; ENTRY ORDER
= ; &= nbsp; &nb= sp; SUPREME COURT DOCKET NO. 2004-348
= = &n= bsp; &nbs= p; = <= /span>FEBRUARY TERM, 2005
Erlene Shannon &= nbsp; &nb= sp;  = ; &= nbsp; } = APPEALED FROM:
= ; v. &nb= sp;  = ; &= nbsp; &nb= sp;  = ; &= nbsp; } = Windham Family Court
Damian Gaffney &= nbsp; &nb= sp;  = ; &= nbsp; }
} DOCK= ET NO. F201-7-03 WmDmd
Trial Judge: Katherine A. Hayes=
&= nbsp; &nb= sp;  = ; In the above-entitled cause, the Clerk will enter:
Husband appeals the family court’s final divorce order, arguing that the court abused its discr= etion in several respects concerning its distribution of the marital assets. We affirm.
The parties married in 1992 aft=
living together for approximately ten years. They separated in October 2003.
Husband first argues that the f= amily court abused its discretion by awarding wife the marital residence notwithstanding (1) the parties’ agreement at trial that he would be awarded the house, and (2) the evidence demonstrating that he alone had pu= rchased the land upon which the house was built and taken out a loan to build the house. We find no abuse of discretion. See Lewis v. = Lewis, 149 Vt. 19, 22 (trial court has wide discretion in dividing marital property). The parties were considering an unsigned draft agreement awarding husband the house conting= ent upon his being able to obtain refinancing so that he could pay wife her sh= are of the equity in the home. H= usband never was able to obtain the necessary financing because of credit problem= s, however, and the parties acknowledged at the final hearing that they were = still contesting issues concerning the house.&n= bsp; Accordingly, the court recognized that it would have to start from scratch with respect to the house. The court found that both parties had contributed financially to up= keep of the home and had put roughly an equal amount of sweat equity into the home. The parties were joint= ly liable on a second mortgage. The fact that husband had made the initial financial investment did not preclu= de the court from awarding the home to wife.= See 15 V.S.A. § 751(a) (court has jurisdiction over all proper= ty owned by either party, however and whenever acquired; title to property is immaterial, except where equitable distribution can be made without distur= bing separate property); Milligan v. Milligan, 158 Vt. 436, 440 (1992) (= court has power to distribute marital assets in whatever manner it finds just and equitable, regardless of prior owner).
Husband contends, however, that= the family court erred by valuing his equity in the marital home at $11,000, t= he amount he paid for the land in 1987, rather than at its appreciated value = at the time of trial—$25,000. Husband misconstrues the court’s order. The court plainly required wife t= o pay husband $11,000 to arrive at the desired overall property division—fifty-five percent for husband and forty-five percent for wife—not to establish the value of the land associated with the mari= tal home.
Next, husband argues that the f=
court erred by failing to exclude from the marital estate that portion of =
retirement account that he earned before the parties married in 1992. Husband acknowledges that the cou=
awarded him the entire retirement account, which was worth about $13,000, =
contends that, by including the entire account as part of the marital esta=
the court skewed the overall property award in favor of wife. Putting asid=
fact that the parties lived together a number of years before they married=
find this argument unavailing. Husband’s
testimony indicates that he worked full-time for the employer from which t=
account arose between 1991, one year before the parties married, and 1998.=
Husband presented no evidence at =
final hearing concerning what percentage of his retirement account had been
earned before the parties married.
Under these circumstances, he cannot claim on appeal that the court
erred by distributing his entire retirement account as a marital asset.
Husband also argues that the fa=
court erred by failing to ascribe any value to wife’s horse tack.
Finally, husband argues that the
family court erred by failing to grant his motion for contempt, which alle=
that wife had violated the court’s temporary order by taking items f=
the marital home and moving into the house while husband was living out of
state. The record does not
demonstrate that wife violated the temporary order, and the court did not =
by denying the motion as moot upon issuance of the final divorce order.
BY THE COURT:=
Paul L. Reiber, Chief Justice= span>
John A. Dooley, Associate Justice= span>
Frederic W. Allen, Chief Justice (Ret.),
Specially Assigned= span>