Stalb v. Stalb

Stalb v. Stalb  (96-537); 168 Vt. 235; 719 A.2d 421

[Filed 4-Sep-1998]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                            No. 96-537


Alan Stalb                                   Supreme Court

                                             On Appeal from
    v.                                       Washington Family Court

Aglaia Stalb                                 February Term, 1998


  Mary Miles Teachout, J.

       Kimberly B. Cheney of Cheney, Brock & Saudek, P.C., Montpelier, for
  Plaintiff-Appellant.

       John R. Durrance, Jr., of Gaston, Durrance & Fairbanks, Montpelier,
  for Defendant-Appellee.


PRESENT:  Amestoy, C.J., Dooley, Johnson and Skoglund, JJ., and Allen,
          C.J. (Ret.), Specially Assigned


       DOOLEY, J.   Defendant wife Aglaia Stalb raises several challenges to
  the trial court's decision to amend its final order reducing the amount
  that plaintiff husband Alan Stalb was required to pay wife in order to
  equalize the parties' investment in the Northfield Inn.  Husband, in turn,
  argues that the mortgage loan buydown option in the corrected and amended
  notice of decision should be deleted, but that the rest of the order should
  be affirmed.  We agree with husband and thus strike down the mortgage loan
  buy-down option and affirm the corrected and amended notice of decision in
  all other respects.

                                     I.

       Husband and wife are both in their fifties and were married before. 
  They both worked in management positions at a New York aerospace company
  and earned similar salaries.  The parties met in 1981, began living
  together in 1982 and married in 1984.  The parties entered into an
  antenuptial agreement in the State of New York to settle property
  distribution issues if their relationship ended in death or divorce.  The
  agreement stated that all jointly-held property would

 

  be divided equally between them and all property held in the individual
  name of either party would remain the property of that individual party. 
  The agreement also provided that the terms of the agreement could be
  changed or modified only by a written instrument.

       At the time of their marriage, the parties lived in a house owned
  partly by the wife and partly by her children. Both parties owned real
  property and pensions.  On January 19, 1989, wife's job was abruptly
  terminated as a result of corporate downsizing.  Wife looked extensively
  for similar work but was unable to find employment.  As a result, the
  parties decided to invest in real estate which wife could manage, providing
  employment for her and potential retirement income for them both.  On a
  trip to Vermont, the parties found an old Victorian house which they
  decided to purchase and develop into a bed and breakfast.  In February of
  1990, the parties purchased the property, took title in joint names,
  re-named it the Northfield Inn, and began renovating it.  The parties
  agreed that the budget for the project would be $400,000 and that each
  would contribute one-half of the investment.  The plan called for wife to
  live in Vermont and manage the Inn, while husband would remain in New York,
  continue working at the same company, and commute to Vermont on the
  weekends to help with the operation of the Inn.

       The expenses for purchasing and renovating the Inn went significantly
  over budget.  In fact, wife contributed $302,670, husband contributed
  $189,651, and the parties obtained a mortgage loan for the Inn through the
  Northfield Savings Bank for $166,256.  Husband continued to make payments
  out of his income in order to cover expenses, but began to complain about
  wife's lack of accounting procedures and her extravagant spending on the
  Inn.  The parties' relationship began to deteriorate and wife became
  secretive about the financial affairs of the Inn.

       In July of 1994, the parties separated, and husband filed for divorce. 
  Husband stopped traveling to Vermont and providing money for expenses of
  the Inn.  In November of 1994, husband was notified that his company was
  downsizing and he would be terminated in January. He has been unable to
  obtain similar employment since that time.

 

       There are three judicial decisions and two master's reports in this
  case.  The family court appointed a master to determine the fair market
  value of the parties' property, the expenses of the Northfield Inn, its
  profit or loss in 1995, and the contribution of each of the parties to the
  Inn, and to make a recommendation regarding spousal maintenance.  He did so
  in reports in August and December 1995.  The family court upheld the
  antenuptial agreement and accepted the master's findings in May 1996.  The
  family court issued its notice of decision, findings and conclusions on
  September 13, 1996.  In its notice of decision, the court attempted to
  equitably divide the parties' property, giving effect to the antenuptial
  agreement.  The trial court concluded, nevertheless, that it would be
  grossly inequitable for husband to receive a one-half share of the
  Northfield Inn when he had contributed only $189,651 and wife had
  contributed $302,671.  The court held that it would be in contravention of
  the parties' "specific agreement to be equal investors in the Northfield
  Inn . . . . to enforce the antenuptial agreement in a literal and technical
  manner" because husband would realize a windfall profit simply because he
  chose to pursue divorce before the parties had equalized their investment.

       The court ordered husband to pay wife $113,020 to equalize the
  parties' investment in the Inn and then awarded wife sole ownership of the
  Inn.  At the time of the divorce, the Inn had a going concern value of
  $300,000, with a mortgage debt of $166,256 and an equity value of $133,744. 
  The court allocated to husband the three jointly-owned Florida properties,
  which were valued at $139,002 and then ordered husband to pay wife $2,629
  to equalize the property distribution.  Thus, husband was required to pay
  wife a total of $115,649.

       The court next considered wife's claim for spousal maintenance under
  15 V.S.A. § 752(a)(1) and (2).  The court determined that wife, as owner
  and manager of the Inn, would derive from it an annual income of $12,433,
  including the value of the housing it provided her. The court recognized
  that this was not sufficient to meet her expenses, but found that the $800
  monthly shortfall could be eradicated if husband's $115,649 payment to wife
  was applied to the principal of the mortgage on the Inn.  The court
  calculated that this payment would reduce the

 

  outstanding mortgage loan to $50,607 and the monthly payments from $1200 to
  $400.  The reduction in the mortgage payments would bring wife's annual
  income to $22,003, an amount sufficient to provide for her reasonable
  needs.  On this basis, the court denied wife maintenance but required
  husband to pay wife's monthly health insurance premiums until she became
  eligible for Medicare.

       At this point in the litigation, husband appealed the court's
  decision, arguing mainly that the antenuptial agreement prevented the court
  from finding a subsequent oral agreement existed with respect to the
  Northfield Inn.  While the case was on appeal, the trial court decided that
  it had miscalculated the amount husband had to pay to equalize investments
  in the Northfield Inn, a point husband raised in his appeal.  Upon leave of
  this Court, pursuant to V.R.C.P. 60(a), the family court issued an amended
  order reducing the amount husband owed wife from $115,649 to $59,139 and
  allowing wife to elect either (1) a mortgage buy-down option whereby
  husband must pay $113,020 to the Northfield Savings Bank to reduce the
  mortgage on the Northfield Inn, and in turn wife must pay to husband the
  sum of $53,881, or (2) a payment from husband of $59,139 directly to her. 
  Wife appealed this decision claiming that (1) the family court made changes
  that affected the substantive rights of the parties, beyond that authorized
  by Rule 60(a); (2) the antenuptial agreement between the parties is
  unconscionable and cannot be enforced under Vermont law; (3) husband's
  income is marital income, which should be split between the parties and
  cannot be used to pay for his investment share in the Northfield Inn; (4)
  the court found as fact that wife could refinance the Northfield Inn
  mortgage, and reduce the payment amount, with no evidence to support this
  finding; (5) the family court failed to make findings regarding maintenance
  and abused its discretion by lowering the amount of the property settlement
  without considering whether a rise in maintenance payments was necessary to
  offset increased expenses; and (6) the court abused its discretion in not
  reopening the evidence. Husband responded that the amended order should be
  affirmed as long as the mortgage buy-down option is deleted.  If the
  mortgage buy-down option is not deleted or issues in the amended

 

  order are reversed, the husband returns to his original appeal issues: (1)
  the antenuptial agreement must be enforced; (2) oral modifications to the
  antenuptial agreement should not be enforced; (3) if oral modifications to
  the antenuptial agreement are given effect, then the parties' entire oral
  agreement regarding investment in wife's West Islip, New York house and
  Northfield Inn should be enforced; and (4) the order requiring him to pay
  $10,000 of wife's attorney's fees should be vacated.  We do not reach
  husband's alternative arguments because we delete the mortgage buy-down
  option and affirm the amended order in all other respects.

                                     II.

       We start with the amendments the family court made to the final order
  while the case was on appeal because these are at the heart of wife's
  appeal issues.  The amendments were based on a mistake the court made in
  equalizing the parties' investments in the Northfield Inn.  The court found
  that wife had invested $113,020 more than husband.  In its decision, the
  court stated that it would require husband to increase his investment in
  the Inn by this amount; but in its order, it directed that husband pay
  $113,020 to wife.  This order had the effect of increasing husband's
  investment in the Inn while decreasing wife's investment, creating a
  disparity in favor of the wife.

       The family court recognized its mistake, and reduced the amount
  husband had to pay wife on account of the Inn, from $113,020 to $56,510. 
  The court also recognized, however, that the payment reduction would reduce
  the income available to wife and attempted to ameliorate the impact by
  creating an option for wife to require husband to buy down the mortgage by
  $113,020, thereby reducing the mortgage payments, and to equalize the
  investment by a payment from wife to husband.  Both parties oppose this
  buy-down option, although for very different reasons.  Because the
  corrected order reduces wife's property settlement by $56,510, with no
  offsetting increase in maintenance, she is now the appealing party, with
  husband defending the amended order as long as the buy-down option is
  eliminated.

       Wife's first argument is that the family court in its corrective order
  went beyond its

 

  limited power under Rule 60(a) and made changes that affect the substantial
  rights of the parties. See Greenmoss Builders, Inc. v. Dunn & Bradstreet,
  Inc., 149 Vt. 365, 367, 543 A.2d 1320, 1322 (1988); State v. Champlain
  Cable Corp., 147 Vt. 436, 439, 520 A.2d 596, 598-99 (1986); V.R.C.P. 60(a)
  (clerical mistakes and errors in judgments "arising from oversight or
  omission" may be corrected by court on its own initiative; if case is
  pending on appeal to the Supreme Court, leave of this Court is required);
  V.R.F.P. 4(a)(1) (Vermont Rules of Civil Procedure apply to divorce
  proceedings).  In reviewing this argument, we note first that husband was
  continuing in his appeal to insist that the judgment was miscalculated as
  the family court later found, and his position was correct.  Therefore, if
  the appeal had continued without the family court's request for a remand,
  we would have been forced to reverse the judgment because of the error.

       The family court may, during the appeal of a divorce action, grant a
  motion to modify the divorce judgment.  V.R.F.P. 12(d).  In any event, this
  Court remanded the case for the family court to reconsider the amount
  husband was directed to pay to equalize the property distribution.  See 11
  C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2873, at
  431-32 (1995) (appellate court may remand to consider Rule 60(b) motion). 
  Husband's appeal was in substance a request that the calculation error be
  corrected.  Even if power to make the correction did not exist under Rule
  60(a), it clearly existed under Rule 60(b)(1), and, thus, the court could
  modify the judgment under this rule.  See Greenmoss Builders, Inc., 149 Vt.
  at 367-68, 543 A.2d  at 1322-23.

                                    III.

       Wife's first argument on the merits is that the antenuptial agreement
  signed by the parties in the state of New York is unconscionable and cannot
  be enforced under Vermont law.  In relevant part, the agreement provides
  that in case of divorce the marital property would be distributed in the
  following manner: (1) "[A]ll property held in the joint names of the
  parties shall be divided equally between them," and (2) "all property held
  in the individual name of

 

  either party, shall be the property of that individual party."  Further,
  the agreement provides that the rights and obligations of the parties under
  the agreement "shall be construed according to the laws of the State of New
  York."

       The antenuptial agreement is a contract: "Therefore, if the contract
  is valid where made, it will be interpreted here according to the law of
  the state of its making, so long as to do so will not violate the public
  policy of the State of Vermont."  Rogers v. Rogers, 135 Vt. 111, 112, 373 A.2d 507, 509 (1977).  Consequently, we begin by examining the validity of
  the antenuptial agreement under New York law.

       The validity of antenuptial agreements in New York is governed by
  statute.  The statute provides that such an antenuptial agreement
  pertaining to property is valid if certain formalities are met, including
  "provision for the ownership, division or distribution of separate and
  marital property."  N.Y. Dom. Rel. Law § 236, Pt. B(3)(2) (McKinney 1986). 
  The statute's coverage of property distribution is different from its
  coverage of maintenance.  Antenuptial agreement provisions relating to
  maintenance are valid only if "such terms were fair and reasonable at the
  time of the making of the agreement and are not unconscionable at the time
  of the entry of final judgment."  Id. § 236, Pt. B(3)(3).  Although the
  difference does not necessarily mean that property distribution provisions
  of antenuptial agreements are immune from challenge on fairness grounds, it
  does mean that judicial review of such provisions is necessarily limited. 
  See Zipes v. Zipes, 599 N.Y.S.2d 941, 946-47 (N.Y. Sup. Ct. 1993).

       Generally, New York courts have held that antenuptial agreement
  provisions on distribution of property may be reviewed only under
  traditional equity standards of unconscionability or overreaching.  See
  Goldman v. Goldman, 500 N.Y.S.2d 111, 113 (N.Y. App. Div. 1986); Pennise v.
  Pennise, 466 N.Y.S.2d 631, 633-34 (N.Y. Sup. Ct. 1983).  Under this
  standard, the agreement will not be enforced if it shocks the conscience
  and confounds the judgment of any man of common sense, Pennise, 466 N.Y.S.2d  at 633, or if no person in his or her senses would make it and no
  honest and fair person would accept it, Clermont v.

 

  Clermont, 603 N.Y.S.2d 923, 924 (N.Y. App. Div. 1993).

       Under any of the standards that have been adopted in New York, the
  antenuptial agreement in this case was valid when made.  We reach this
  conclusion based on the facts found by the family court.  At the time of
  the signing of the agreement, the parties had similar management positions,
  with similar salaries, and both owned substantial property.  Although wife
  did not have separate counsel at that time, she was advised to obtain
  separate counsel by the firm preparing the agreement.  She was
  knowledgeable about divorce issues, having litigated her first divorce
  extensively and with counsel.  The agreement states that wife received
  adequate legal counsel or chose to waive it.

       The agreement is not unfair on its face.  It lists the separate
  property of each of the parties.  As wife acknowledges, each party had
  assets of approximately equivalent value at the time of the agreement.  The
  agreement states that the parties are aware of the equitable distribution
  law and that each has had the opportunity to make "complete financial
  inquiry of the other."

       Even if the antenuptial agreement was valid when made under New York
  law, wife argues that it should not be enforced now under Vermont law. 
  Although Vermont courts will generally enforce antenuptial agreements
  signed in other states, we have recognized that we will not enforce an
  agreement that contravenes the public policy of Vermont.  See Padova v.
  Padova, 123 Vt. 125, 129, 183 A.2d 227, 230 (1962).  Thus, in the absence
  of "fraud, duress or other unconscionable advantage" the agreement will be
  enforced according to its terms.  Rogers, 135 Vt. at 114, 373 A.2d  at 509.

       Our leading case on the enforcement of antenuptial agreements is
  Bassler v. Bassler, 156 Vt. 353, 593 A.2d 82 (1991).  In that case, we held
  that even if an antenuptial agreement is valid when made, we will not
  enforce it if, at the time of the divorce, it would leave one spouse a
  public charge, or close to it.  See id. at 361, 593 A.2d  at 87.  We adopted
  the following language from Marschall v. Marschall, 477 A.2d 833, 840-41
  (N.J. Super. Ct. 1984):

 


     Clearly there must be some level of unconscionability which would
     bar enforcement of an antenuptial agreement no matter what
     disclosure had been made.  An agreement which would leave a
     spouse a public charge or close to it, or which would provide a
     standard of living far below that which was enjoyed both before
     and during the marriage would probably not be enforced by any
     court.

  Id. at 361-62, 593 A.2d  at 87.  We refused to enforce an antenuptial
  agreement in Bassler because it denied the wife any interest in the husband
  s property and wife was receiving public assistance at the time of the
  divorce.  Id. at 362, 593 A.2d  at 88.

       Wife's argument is that the divorce order will provide her a standard
  of living far below that realized during the marriage primarily because
  husband can keep his pension, which is more valuable than hers because he
  worked longer at the aerospace company.  Under the amended order, however,
  wife has almost $500,000 in assets.(FN1)  Of that, about $300,000 represents
  the value of her separate property.  The remainder is the equity value of
  the Northfield Inn and the equalization payment husband must make to her. 
  We do not believe that the property distribution places her in such a
  disadvantageous position that we can say that enforcement of the
  antenuptial agreement is unconscionable.

                                     IV.

       Wife next contends that the family court improperly failed to enforce
  the oral agreement governing the purchase of the Northfield Inn.  According
  to wife, the court should have required that husband's share come from his
  separate property rather than from his income.  Wife's position is that
  this income was "marital income," that she was entitled to a 50% share of
  it in any event and, thus, that when husband used his income for his share
  of the purchase price 50% of that contribution should have been credited to
  her.

 

       We agree that the court found that the oral agreement contemplated
  that husband's contribution to the price of the Inn would come from the
  proceeds of the sale of property he owned separately.  He was unable to
  sell his property, however, and the vast majority of his contribution came
  from his income.

       Whether husband's contribution came from his income or his property is
  a distinction without a relevant difference.  Although a spouse's income
  may be "marital income" in the sense that it is available to pay future
  maintenance, the other spouse has no right to the income prior to a
  maintenance award.  Neither income capacity, nor the income itself is
  property subject to equitable distribution.  See Wilcox v. Wilcox, 365 N.E.2d 792, 795 (Ind. Ct. App. 1977); Stern v. Stern, 331 A.2d 257, 260
  (N.J. 1975); cf. Downs v. Downs, 154 Vt. 161, 165-66, 574 A.2d 156, 158
  (1990) (increased earning capacity caused by professional degree is not
  property subject to equitable division).  Both our property distribution
  and our maintenance statute use the terms "property" and "income" in ways
  inconsistent with wife's position that income is a form of property.  See
  15 V.S.A. §§ 751(b)(3) (factor in dividing property is "source and amount
  of income of each of the parties"), 752(a)(1) (requirement for maintenance
  is that spouse seeking it  lacks sufficient income, property or both ). 
  Indeed, if income were a form of marital property to be distributed between
  the parties, there would be no need for maintenance. Of course, to the
  extent that the income goes to purchase property that is "owned by either
  or both of the parties" at the time of the divorce, the property is subject
  to equitable distribution.

       In all practical respects, husband's income was the equivalent of the
  proceeds of the sale of separate property, which was solely husband's under
  the antenuptial agreement.  Prior to the maintenance order, wife had no
  specific claim on that income, and husband was free to use it to purchase
  his share of the Northfield Inn.

                                     V.

       The next two issues relate to the failure of the court to award
  permanent maintenance to wife beyond payment for her health insurance.  To
  put the issues in context, we first summarize

 

  the family court's reasoning.

       The court recognized that the Northfield Inn income alone would not
  provide wife a reasonable living because a high percentage of the income is
  needed to pay the mortgage obligation.  The court found that the inn was
  providing a net income of $12,433, including the amount of wife's living
  costs it covered.  In its original opinion, however, it determined that if
  husband's property equalization payment of $115,649 were applied to reduce
  the mortgage and the mortgage were refinanced to reduce the payments, the
  annual income would increase to $22,000.  Wife, moreover, would start
  receiving retirement income in three years, increasing her income
  eventually to $36,000 per year.  Because this income would be sufficient to
  meet wife's reasonable needs except for medical insurance, the court denied
  permanent maintenance except for payment of wife's medical insurance.  The
  court held that it was fair to require husband to pay for wife's medical
  insurance because the parties had originally agreed she would run the inn
  without the benefit of medical insurance as usually provided by an
  employer.  The court did award temporary maintenance of $800 per month
  until husband made the property equalization payment.  Wife did not appeal
  the maintenance decision.

       The amended decision reduced the property equalization payment to
  $59,139, with the buy-down alternative that would require the husband to
  pay the bank $113,020 and receive $53,381 from the wife.  Despite the
  reduced payment, the court found that the need for maintenance remained the
  same because the mortgage would be reduced as in the original order and
  wife could make the $53,381 payment to husband from stocks, a certificate
  of deposit and savings that were not being used for ongoing living
  expenses.

       In her appeal, wife challenges the court's conclusion that the
  mortgage could be refinanced to reduce the payments as unsupported by any
  evidence.  More broadly, she challenges the decision as unsupported by any
  findings on the standard of living during the marriage and any analysis of
  the statutory maintenance factors, 15 V.S.A. § 752(b).  We begin with the
  latter challenge.

 

       At the outset, we note that this was not a classic case for an award
  of significant permanent maintenance.  Cf. Soutiere v. Soutiere, 163 Vt.
  265, 272, 657 A.2d 206, 210 (1995); Strauss v. Strauss, 160 Vt. 335,
  340-42, 628 A.2d 552, 554-55 (1993); Klein v. Klein, 150 Vt. 466, 474, 555 A.2d 382, 387 (1988).   It was a second marriage for each, the duration was
  not long, and there were no children.  Both parties initially had good jobs
  with similar incomes, and both have similar qualifications for future
  earnings.  The parties had similar roles during the marriage.  Although the
  issue is characterized as maintenance, wife really seeks a permanent
  subsidy of a business that fails to produce income commensurate with the
  capital investment and the work effort.

       Wife argues that the family court failed to find the standard of
  living during the marriage, failed to consider the interrelationship
  between the property award, particularly its reduction, and the need for
  maintenance, and failed to equalize the parties' income.  We do not agree
  that the court failed to find the standard of living during the marriage. 
  There were extensive findings about how the parties lived and the
  relationship between their finances and their lifestyle. Indeed, the $800
  per month temporary maintenance payment was intended to continue husband's
  historic contribution to wife's expenses to maintain her income.  The
  marriage actually went through three different standard of living periods. 
  At first, both husband and wife were earning relatively high incomes from
  their aerospace company jobs and could live well.  Then, wife lost her job,
  and eventually the parties' lifestyle centered almost exclusively around
  the operation of the inn.  Finally, husband lost his job and had only
  unemployment compensation income.

       Where the parties could not maintain the lifestyle of earlier times
  because of the income reductions, we do not see the need for precise
  specification of the living standard, even if such precision is ever
  required.  See Kohut v. Kohut, 164 Vt. 40, 43-44, 663 A.2d 942, 944 (1995).
  Moreover, the standard of living during the marriage is one factor in
  determining the amount of maintenance, see 15 V.S.A. § 752(b)(3), and there
  were other significant factors in this case. For example, we emphasized in
  Delozier v. Delozier, 161 Vt. 377, 382-83, 640 A.2d 55, 58

 

  (1994), that "[t]he longer the marriage, the more closely reasonable needs
  should be measured by the standard of living established during the
  marriage."  This was a relatively short marriage. See id. at 383, 640 A.2d 
  at 58 (although there is no precise point at which marriage becomes
  long-term, awards of permanent maintenance are made in marriages of fifteen
  years or more).

       Also, contrary to wife's argument, the court did consider the
  interrelationship between the property award and the need for maintenance;
  indeed, the whole justification for the decision was based on this
  interrelationship.  Although the amended order did result in wife receiving
  less than the original order, it was a correction of a calculation error,
  not a decision to change the property distribution to disadvantage wife. 
  We have previously stated that property should often be viewed as a nest
  egg for retirement and a spouse cannot be put in the position of selling
  off property to meet basic living expenses, see Klein, 150 Vt. at 475, 555 A.2d  at 388, but these general principles are not offended here.  Wife was
  awarded her nest egg for retirement, the Northfield Inn.  As a result, she
  was property-rich and income-poor.  Much of her property, other than the
  inn, was not available as income for living expenses.  In these
  circumstances, it was not unreasonable to require her to use her other
  property to reduce her debt load on the inn and bring her income up in
  relation to her needs.

       Finally, we have not held that family courts must equalize income in
  every case.  In fact, we have held that "[a]wards based only upon the
  single criterion of the payor's income . . . would rarely be acceptable."
  Delozier, 161 Vt. at 385, 640 A.2d  at 59.  Here, other factors, such as the
  length of the marriage  and the lack of any compensation justification,
  suggest that income equalization is not appropriate.  See id. at 386, 640 A.2d  at 60.

       The family court has broad discretion in fashioning a maintenance
  award.  See Tracey v. Gaboriault, ___ Vt. ___, ___, 691 A.2d 1056, 1061
  (1997).  We will not overturn an award unless it has no reasonable basis to
  support it.  See Soutiere, 163 Vt. at 272, 657 A.2d  at 210. We find a
  reasonable basis in this case for limiting permanent maintenance to the
  cost of health insurance.  There was no abuse of discretion.

 

       We also think the court's discretion is an answer to wife's complaint
  that there was no evidence that she could refinance the mortgage on the Inn
  after paying down the principal.  It was not the court's obligation to come
  up with an exact scenario that would allow wife to remain in the inn and
  make sufficient income from it.  It may be that the investment in the Inn
  needs to be moved elsewhere to make sufficient income.  The point is that
  wife received enough investment property to allow her to generate an
  income, along with her retirement benefits, to meet her reasonable needs in
  the future.

                                     VI.

       Wife's final appeal argument is that the family court should have
  granted a post-judgment motion to reopen the evidence or amend the
  judgment.  The motion offered a letter from the bank to show that wife had
  not made extra payments of mortgage principal, as found by the court, and
  claimed that husband had improperly attempted to obtain certain insurance
  proceeds after the judgment was issued.

       The issues raised by the motion were collateral and did not go to the
  rationale for the family court's decision.  As to the bank evidence, there
  was no showing why it could not have been offered during the trial.  See
  V.R.C.P. 60(b)(2) (relief from judgment for newly discovered evidence may
  be granted if movant shows the evidence could not be discovered prior to
  trial through the exercise of due diligence); Olde & Co. v. Boudreau, 150
  Vt. 321, 324, 552 A.2d 793, 795 (1988) (failure to produce evidence not
  grounds for relief under Rule 60(b)).  As to the evidence of husband's
  post-judgment conduct, the family court was in the best position to
  evaluate its significance to its conclusions and judgment.  The family
  court has wide discretion in acting on a Rule 60(b) motion.  See Slansky v.
  Slansky, 150 Vt. 627, 629, 556 A.2d 94, 95 (1988).  There was no abuse of
  that discretion.

       Finally, husband cross-appeals, contesting the mortgage buy-down
  option.  He claims that he would have to liquidate $180,000 in assets to
  make the payment to the bank because he would pay about $70,000 in income
  taxes because of the liquidation.  He argues that this is an

 

  unnecessary and punitive requirement.  Wife has not opposed this argument.

       We agree that the option unnecessarily creates a substantial tax
  obligation.  The same result as the buy-down option would be accomplished
  if wife takes husband's $59,139 payment, adds to it the $53,881 wife would
  have to pay husband under the buy-down option, and pays the sum to the bank
  to reduce the mortgage indebtedness.  Since the obligation to pay the bank
  is entirely controlled by wife, it makes no sense to require a method that
  requires the liquidation of more assets than necessary.  Accordingly, we
  strike the buy-down option from the final judgment.

       Section 6 of the judgment order is amended to read as follows:

      Plaintiff shall pay the sum of $59,139 to defendant within 30 days
      from the date of this order.  Interest at the legal rate shall accrue
      on any sums not paid in accordance with this order.  Upon
      payment of the sum required by this paragraph, and paragraphs 7
      and 9 below, defendant shall quitclaim her interest to the plaintiff
      in properties awarded to him.  Until payment is made, that
      property shall secure Plaintiff's interest to the Defendant.

  The amended judgment order is affirmed in all other respects.



                              FOR THE COURT:



                              _______________________________________
                              Associate Justice



  ------------------------------------------------------------------------
                                  Footnotes


FN1.  The family court found that wife owed her children $102,538
  because she used the equity of her New York home to provide part of the
  share of the capital for the Northfield Inn and the children were joint
  owners of the New York home.  There is no written documentation for this
  debt, and it is unclear whether wife owes the children interest on it.  In
  any event, the debt leaves wife's net property value at $400,000.