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Damone v. Damone9/14/2001
marital estate, with the personal injury settlement proceeds to be distributed to the parties consistent with the agreement they both sought to have enforced by the court.
II.
Defendant also contends that the trial court abused its discretion when it included the proceeds from the medical malpractice settlement in its determination of the award of maintenance to plaintiff. When the court addressed plaintiff's request for maintenance, it examined the financial status of each of the parties, taking into account plaintiff's likely need to reduce her work hours to enable her to care for the children. As noted, it also imputed income to the parties based on interest to be generated from the personal injury settlement proceeds, after the marital and personal debts are discharged. It concluded that plaintiff should be awarded rehabilitative maintenance of $500 per month for five years.
"A court has broad discretion in determining the amount and duration of a maintenance award, and we will set it aside only when there is no reasonable basis to support it." Stickney v. Stickney, 170 Vt. 547, 548-49, 742 A.2d 1228, 1231 (1999) (mem.) (citing Chaker v. Chaker, 155 Vt. 20, 25, 581 A.2d 737, 740 (1990)). This discretion is not without its limits. See id. at 549, 742 A.2d at 1231 (citing Klein v. Klein, 150 Vt. 466, 473, 555 A.2d 382, 386 (1988)).
As the court's distribution of the settlement proceeds was incorrect, so too was its maintenance award, which was calculated based in part on anticipated income generated by the property distribution. See Semprebon v. Semprebon, 157 Vt. 209, 216, 596 A.2d 361, 365 (1991) (recognizing interrelationship of maintenance and property awards in final divorce order); 15 V.S.A. ยง 752(b)(5) (in determining whether to order maintenance, court must consider property apportioned to the party seeking maintenance). Interest income from each party's awarded share of the settlement proceeds was factored into the maintenance calculation. Therefore, the maintenance award of $500 per month must be vacated and, on remand, recalculated to account for the corrected marital property distribution.
III.
Finally, defendant argues that the court committed error when it admitted and relied upon the GAL's testimony regarding the parental preferences of the children.
Rule 7(d) of the Vermont Rules for Family Proceedings provides that a GAL may state a position to the court, but that position must be based on evidence contained in the record. V.R.F.P. 7(d); Gilbert v. Gilbert, 163 Vt. 549, 554, 664 A.2d 239, 241 (1995); Johnson v. Johnson, 163 Vt. 491, 496, 659 A.2d 1149, 1152 (1995).
At the close of evidence, the court asked the GAL two specific questions: whether the children had a position to state to the court, and what her own view was as to the best interests of the children. The GAL responded that the children had told her they wanted to live with their mother while maintaining liberal contact with their father, and that "I share that view. I feel that based on the evidence presented in the last three days and also based on my conversations with people involved, I feel that [parental rights and responsibilities] should be awarded to the mother." Defendant did not object to the GAL's testimony.
Plaintiff claims that we may not address the error by the trial court in admitting and relying upon the GAL's statements because defendant failed to properly object to the testimony, as required by V.R.E. 103(a)(1). We agree. Rule 103 requires that for error to be predicated upon a ruling admitting evidence, a substantial right of a party must be affected and "a timely objection or motion to strike [mu
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