Opinion
No. 75-81
Opinion Filed April 6, 1982
1. Divorce — Appeals — Issues Considered
In an action brought by the former wife to enforce the provision of a judgment requiring that the former husband pay weekly support for the parties' two minor children, the former husband's issue that one of the children was emancipated when he ceased making support payments for her was properly raised below and would be considered on appeal where he had testified, over objection, as to his belief that the child was indeed emancipated, where he had filed proposed findings on the issue, and had moved pursuant to the rule of procedure governing amendment of findings by the court for additional findings on the issue of emancipation. V.R.C.P. 52(b).
2. Trial — Findings — Delay
Where nearly one year passed from former husband's request for additional findings until the court amended its original findings, such a delay by the court was inexcusable absent good cause. V.R.C.P. 52(b).
3. Trial — Findings — Determination
It is the duty of the court, in making findings of facts, to sift the evidence and state the facts. V.R.C.P. 52.
4. Trial — Findings — Purpose
The purpose of findings pursuant to the rule of procedure governing findings by the court is to make a clear statement to the parties, and to the supreme court if appeal is taken, of what was decided and how the decision was reached. V.R.C.P. 52.
5. Appeal and Error — Findings — Unsupported Judgment
In an action to enforce provision of a divorce judgment requiring that former husband pay child support for the parties' two minor children, trial court's amendment of original findings, issued nearly one year after former husband had moved for additional findings, which consisted of the statement that "At all times material, the child Kimberly [sic], was not emancipated," did not comply with the requirements of the rule of procedure governing findings by the court, and as a conclusion of law, the statement was not supported by the findings; therefore, the decision of the trial court requiring the payment of arrearages in child support was reversed and remanded for proper findings. V.R.C.P. 52.
Appeal from trial court order requiring payment of arrearages in child support. Chittenden Superior Court, Morrissey, J., presiding. Reversed and remanded.
Louis Lisman, Burlington, for Plaintiff.
Matthew I. Katz of Latham, Eastman, Schweyer Tetzlaff, Burlington, for Defendant.
Present: Barney, C.J., Billings, Hill, Underwood and Peck, JJ.
At their 1968 divorce the parties entered into a stipulation, later incorporated into the judgment. It provided in relevant part that defendant was to pay $32.50 weekly for the support of the parties' two minor children, David and Kimberley. This obligation was to terminate "upon the emancipation, death, marriage or attaining of majority of either minor child." In April, 1977, upon the eighteenth birthday of the youngest child Kimberley, defendant ceased making support payments for her. Plaintiff sought enforcement of the original judgment pursuant to V.R.C.P. 80(j), and the superior court ordered, inter alia, defendant to pay the arrearages in child support. Defendant appeals, claiming that reversal is required because the trial court failed to render proper findings on the issue of whether or not Kimberley was emancipated at the time he discontinued support payments.
Defendant concedes that the fact that Kimberley attained eighteen years of age, and hence the age of majority, does not necessarily constitute "emancipation" as that term is used in the parties' stipulation. See 1 V.S.A. § 173; Burke v. Burke, 134 Vt. 400, 360 A.2d 574 (1976) (lowering of age of majority to 18 does not affect child support agreements made prior to statutory change).
Although the emancipation question was not raised in the clearest possible fashion, it was certainly brought to the attention of the trial court. Defendant testified, over objection, as to his belief that the child in question was indeed emancipated. Moreover, defendant filed proposed findings on the issue. Finally, he moved pursuant to V.R.C.P. 52(b) for additional findings on the issue of emancipation. The point was thus urged below and will therefore be considered on appeal. See University of Vermont v. Town of Mendon, 136 Vt. 400, 402, 392 A.2d 415, 416 (1978).
At the outset, we express our disapproval of the court's lengthy delay in making and releasing its finding on the question of emancipation. Nearly one year passed from defendant's request until the court amended its original findings to include the cursory statement: "At all times material, the child Kimberly [sic], was not emancipated." Absent good cause such a delay is inexcusable. Rice v. Martin, 139 Vt. 104, 105, 423 A.2d 849, 850 (1980); Anderson-Friberg Co. v. S. G. Phillips Corp., 137 Vt. 565, 566, 409 A.2d 560, 561 (1979). We need not, however, determine at this point whether the delay resulted in prejudice to defendant because we hold that the above-quoted finding does not comply with the requirements of V.R.C.P. 52.
"It is the duty of the court, in making findings of facts, to sift the evidence and state the facts . . . ." Lynda Lee Fashions, Inc. v. Sharp Offset Printing, Inc., 134 Vt. 167, 170, 352 A.2d 676, 677 (1976). The purpose of V.R.C.P. 52 findings is to make a clear statement to the parties, and to this Court if appeal is taken, of what was decided and how the decision was reached. Valsangiacomo v. Paige Campbell, Inc., 136 Vt. 278, 280, 388 A.2d 389, 390 (1978); Wells v. Village of Orleans, Inc., 132 Vt. 216, 221, 315 A.2d 463, 466 (1974). These objects were not satisfied by the trial court's conclusory statement that the child was not emancipated. To the extent this statement is a conclusion of law, it is not supported by the findings; considered as a finding of fact, it does not satisfy the purposes of V.R.C.P. 52.
Reversed and remanded for findings in accordance with this opinion.