Opinion
No. 161-81
Opinion Filed November 2, 1982 Motion for Reargument Denied December 16, 1982
1. Divorce — Property Settlement — Discretion of Court
The division of marital property under the statute governing property settlement is a matter for the discretion of the trial court, and the trial court's decree must stand unless an abuse of discretion has occurred. 15 V.S.A. § 751.
2. Divorce — Appeals — Tests and Standards
Upon appellate review of the trial court's division of marital property, the supreme court will not interfere if a reasonable evidentiary basis supports the trial court's findings and the findings are sufficient to support the conclusions of law.
3. Divorce — Property Settlement — Settlements Upheld
Trial court's order that each party to a divorce action would receive one-half of the proceeds from the sale of their home, one-half of the proceeds from the sale of a vehicle, that the distribution of personal property then in effect be retained with certain changes, and that the former husband would pay the former wife one-third of the proceeds of a certificate of deposit, was affirmed where the trial court's findings were internally consistent, amply supported by the evidence, and adequate to support the distribution.
4. Appeal and Error — Notice of Appeal — Untimely Notice
Where defendant in a divorce action filed a timely notice of appeal on April 22, 1981, plaintiff's cross-appeal filed approximately seven months later on November 24, 1981, was not timely filed and the supreme court could not review the issue raised in the cross-appeal because the untimely notice of cross-appeal failed to vest jurisdiction in the supreme court. V.R.A.P. 4.
Appeal by defendant from that portion of an order granting a divorce which dealt with the distribution of the marital estate; cross-appeal by the plaintiff alleging error in trial court's computation of child support payments due. Washington Superior Court, Morrissey, J., presiding. Affirmed; cross-appeal dismissed.
W. Edson McKee, Montpelier, for Plaintiff-Appellee.
George E. Rice, Jr., Montpelier, for Defendant-Appellant.
Present: Barney, C.J., Billings, Hill, Underwood and Peck, JJ.
This is an appeal by the defendant from that portion of an order granting a divorce which deals with the distribution of the marital estate. We affirm. An attempted cross-appeal by the plaintiff was not timely filed; accordingly, this Court lacks jurisdiction to consider the issue presented.
The trial court ordered the disposition of the marital property pursuant to 15 V.S.A. § 751. It ordered that each party receive one-half of the proceeds from the sale of their home, one-half of the proceeds of the sale of a vehicle, and that the distribution of personal property then in effect be retained with certain changes. It also ordered that the defendant pay the plaintiff one-third of the proceeds of a certificate of deposit recently negotiated by him.
This Court has repeatedly held that the division of marital property under 15 V.S.A. § 751 is a matter for the discretion of the trial court, and that the decree must stand unless an abuse of discretion has occurred. Kinley v. Kinley, 140 Vt. 77, 78, 435 A.2d 698, 699 (1981); Graziano v. Graziano, 139 Vt. 403, 404, 431 A.2d 448, 448 (1981); Palmer v. Palmer, 138 Vt. 412, 416, 416 A.2d 143, 146 (1980). Further, "[u]pon appellate review we will not interfere if a reasonable evidentiary basis supports the court's findings and the findings are sufficient to support the conclusions of law . . . ." Emmons v. Emmons, 141 Vt. 508, 511, 450 A.2d 1113, 1115 (1982). In the instant case the findings of the trial court are internally consistent and amply supported by the evidence. The findings are adequate to support the court's distribution of property, and we find no abuse of discretion. Accordingly, we affirm the trial court's distribution of property.
The defendant's notice of appeal was filed on April 22, 1981. Approximately seven months later, on November 24, 1981, plaintiff filed a cross-appeal alleging error on the part of the trial court in its computation of child support payments due. V.R.A.P. 4 provides that "any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was filed . . . ." Even though the rule provides for a 30-day extension of time upon a showing of excusable neglect, it is clear that the cross-appeal was not timely filed. "We cannot review this [issue], because the . . . untimely notice of cross-appeal fails to vest jurisdiction in this Court." Union Bank v. Jones, 138 Vt. 115, 124, 411 A.2d 1338, 1344 (1980).
Judgment affirmed; appellee's cross-appeal dismissed.