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Damone v. Damone9/14/2001
tion did not return. Phillip was told that he might experience permanent back pain caused by the massive tissue, muscle, and nerve loss he had suffered as a result of the surgery. He was left with a fourteen-to sixteen-inch incision site scar, thick cross lines from where surgical staples had been, discoloration from the radiation treatments, and an indentation in his back. The pain he experiences is worse in the winter, and he relies upon a daily prescription of Percocet to manage, but not alleviate, the pain.
In 1995, the Damones filed the personal injury action against the doctors who initially treated Phillip for his back pain. The suit claimed that, as a result of the doctors' negligence, Phillip had suffered both physical and psychological pain, increased disfigurement, permanent disability or increased disability, loss of enjoyment of his life, lost income, and had incurred substantial medical expenses. Robin joined the complaint, alleging in a separate count that as a result of the doctors' negligence she had suffered the loss of care, consort and companionship of Phillip. In June 1998, after the Damones had separated, the case settled. After payment of legal fees, costs and discharge of a medical lien, they received $151,116.11 net from the $250,000 total settlement. Prior to settlement, the Damones negotiated an agreement between themselves - an agreement which was reached only after considerable disagreement between the parties over how much Robin would receive. The agreement provided that should a settlement be reached in the case, after all fees and expenses were paid, Phillip would be entitled to 82½% of the net amount of the settlement, and Robin would be entitled to 17½%. Given the net settlement amount, this agreement would have resulted in a distribution of $123,845.79 to Phillip and $26,270.32 to Robin.
In its distribution of marital property, the court awarded plaintiff her retirement account, valued at $582.41. She also retained an automobile she had purchased after the separation. The court awarded defendant his pension plan, two cars, and the equity in the home, and assigned him the marital consumer debt he had been making payments against, resulting in an award valued at $11,553.55. The court offset the discrepancy between the parties' awards by its division of the personal injury settlement proceeds, with defendant receiving $90,000 and plaintiff receiving $60,116.11. The total allocation for each party resulted in plaintiff being awarded $60,698.52 worth of marital property, and defendant being awarded property worth $101,553.55.
The court also awarded plaintiff primary legal and physical responsibility for the parties' two children, ages thirteen and eleven at the time of the final order. In determining what award of parental responsibility would be in the best interest of the children, it examined the required factors enumerated in 15 V.S.A. § 665(b). It also heard testimony from the GAL regarding the custodial preferences expressed to her by the children, as well as her own opinion of what custodial arrangement would be in the best interest of the children. The court concluded that the best interests of the children would be served by awarding parental rights and responsibilities to plaintiff, subject to defendant's right to parent-child contact.
In addition, plaintiff sought rehabilitative maintenance of $600 per month for a period of ten years. In determining whether a maintenance award was warranted, the court considered the length of the marriage, the age and physical condition of the parties, the level of education of each party, and the standard of living enjoyed during the marriage. It also examined the income brought into the family by
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