Volume 135 — Vermont Reports

<bold>1. Divorce — Custody and Support of Children — Discretion of</bold> <bold>Court</bold> <block_quote> The trial court has wide discretion in awarding custody and in decreeing visitation rights, and its decision will not be revised unless discretion was erroneously exercised or was exercised upon unfounded considerations or to an extent clearly unreasonable in light of the evidence.</block_quote> <bold>2. Divorce — Custody and Support of Children — Generally</bold> <block_quote> The welfare of the children is determinative in the awarding of custody.</block_quote> <bold>3. Divorce — Property Settlement — Discretion of Court</bold> <block_quote> The trial court has broad discretion in the disposition of marital property between the parties to a divorce. <cross_reference>15 V.S.A. § 751</cross_reference>.</block_quote> <bold>4. Divorce — Property Settlement — Fault</bold> <block_quote> Fault may be considered in the ascertainment of an equitable division of property in a divorce action. <cross_reference>15 V.S.A. § 751</cross_reference>.</block_quote> <bold>5. Divorce — Property Settlement — Children's Rights</bold> <block_quote> Under the statutes, marital property is to be disposed of between the parties, absent a stipulation to the contrary, thus a decree awarding the children the fee in the homestead is erroneous. <cross_reference>15 V.S.A. § 751</cross_reference>.</block_quote>

<bold>1. Damages — Amount and Ascertainment</bold> <block_quote> In arriving at market value the jury is entitled to exercise its own judgment within evidentiary limits, and where damages are not susceptible to reduction to exact dollars and cents, the jury is expected to estimate the appropriate recovery, accurate within some standard of reasonableness, based on the evidentiary data furnished.</block_quote> <bold>2. Damages — Amount and Ascertainment — Opinions</bold> <block_quote> In general, opinion evidence as to value is liberally admitted, thus market value of realty may be established by the testimony of people familiar with the property, its value and the uses to which it may be put.</block_quote> <bold>3. Evidence — Opinion — Value and Effect</bold> <block_quote> As to whether a particular person is competent to testify, the ruling of the trial judge is conclusive unless it appears from the evidence that the judge's decision was clearly erroneous.</block_quote> <bold>4. Damages — Amount and Ascertainment — Elements</bold> <block_quote> There is no exact formula available to determine in every case what elements are properly considered in fixing the market value of property to be condemned, thus if evidence is to be excluded for being immaterial, it must clearly appear that it has no relevancy to any issue in the case.</block_quote> <bold>5. Eminent Domain — Compensation for Loss</bold> <block_quote> In highway condemnation cases the landowner is entitled to compensation which measures the difference between the fair market value of the entire tract before the taking, and the fair market value of the residue after the appropriation, and if the total verdict does not outrun such testimony, it may be sustained. 19 V.S.A. § 221(2).</block_quote>

<bold>1. Appeal and Error — Evidence</bold> <block_quote> Respondent's challenge to verdict of guilty requires court to view the evidence in light most favorable to state, free from modifying evidence.</block_quote> <bold>2. Criminal Law — Evidence — Circumstantial</bold> <block_quote> Where the evidence relied upon by the prosecution to establish the elements of a crime is entirely circumstantial, the circumstances proved must exclude every reasonable hypothesis except that the respondent is guilty.</block_quote> <bold>3. Trial — Instruction — Circumstantial Evidence</bold> <block_quote> A jury need be instructed that it has to be able to exclude every reasonable hypothesis of innocence before it can find the accused guilty only in those cases where the state's evidence is wholly and entirely circumstantial, and where a combination of direct and circumstantial evidence is presented, such an instruction need not be submitted.</block_quote> <bold>4. Evidence — Out-of-Court Admission</bold> <block_quote> An out-of-court admission by a respondent to facts in dispute is generally considered to be in the nature of direct evidence.</block_quote>

<bold>1. Unemployment Compensation — Generally</bold> <block_quote> The weight to be given testimony and the inferences to be drawn therefrom are matters properly for the employment security board, and not for the supreme court on appeal.</block_quote> <bold>2. Appeal and Error — Findings — Sufficiency</bold> <block_quote> Findings are sufficient if they dispose of the issues presented and make a clear statement of the trier's decision and the basis upon which that decision was made.</block_quote>

<bold>1. Divorce — Alimony — Modification or Vacation</bold> <block_quote> The question of whether a party is to be excused from all further alimony payments is not an entitlement to be insisted on as a matter of law, but is a factual determination to be made by the trial court and in such a determination trial courts have wide discretion.</block_quote> <bold>2. Divorce — Alimony — Modification or Vacation</bold> <block_quote> While a betterment in a wife's position of an inheritance is suitable for consideration in weighing modification of an alimony award it does not necessarily indicate a particular outcome.</block_quote> <bold>3. Divorce — Alimony — Modification or Vacation</bold> <block_quote> Alimony is defined as an annual allowance and authority for its revision is found in <cross_reference>15 V.S.A. § 758</cross_reference>.</block_quote> <bold>4. Divorce — Property Settlement — Modification or Vacation</bold> <block_quote> The division of real estate in a divorce proceeding is a final division of property and such a determination is not subject to the modification provisions applicable to alimony orders. 15 V.S.A. §§ 751, 758.</block_quote> <bold>5. Divorce — Alimony — Nature</bold> <block_quote> The duty of alimony, when imposed, bears some relation to the circumstances under which the parties were able and accustomed to live during the marriage.</block_quote> <bold>6. Divorce — Alimony — Modification or Vacation</bold> <block_quote> As an improvement in a husband's situation does not automatically justify an award of increased alimony on petition, so too a former wife's improvement should not automatically redound to the husband's benefit.</block_quote>

<bold>1. Sales — Personal Property</bold> <block_quote> Where the agreement between the parties was in the nature of a finder's agreement, a transaction to procure a purchaser, rather than a sale of real estate, the rules of the real estate commission relating to such transactions did not apply.</block_quote> <bold>2. Sales — Personal Property</bold> <block_quote> The agreement for the procuring of a purchaser of personal property, a modular house, was not an agreement for the sale of goods and therefore the statute of frauds relating to the sale of goods as defined in the Uniform Commercial Code was not applicable. <cross_reference>9A V.S.A. § 2-201</cross_reference>(1).</block_quote> <bold>3. Pleading — Third Party Practice</bold> <block_quote> Third party practice and interpleader are particularly suited to a situation where several parties may claim a fund or allege that another party is liable for payment of a sum. V.R.C.P. 14, 22.</block_quote>

<bold>1. Process — Substituted Service</bold> <block_quote> As to whether a foreign corporation has engaged in contacts or activities in this state, the vital factor is the intentional and affirmative action on the part of the nonresident in pursuit of its corporate purposes within this jurisdiction, and a single act, purposefully performed here, will put the actor within the reach of the sovereignity of the state. <cross_reference>12 V.S.A. § 855</cross_reference>.</block_quote> <bold>2. Process — Substituted Service</bold> <block_quote> Where defendant's acts demonstrated a clear intention to actively participate in the Vermont market, it had therefore engaged in sufficient contact and activity to bring it within purview of the long arm statute. <cross_reference>12 V.S.A. § 855</cross_reference>.</block_quote> <bold>3. Process — Substituted Service</bold> <block_quote> Once the requisite contact and activity have been found on the part of foreign corporate defendant the question remains whether the litigation grew out of such contact and activity, and in this regard it was incumbent that the plaintiff demonstrate that the defendant was causally responsible for the presence of the injuring agency within this state. <cross_reference>12 V.S.A. § 855</cross_reference>.</block_quote> <bold>4. Process — Substituted Service</bold> <block_quote> Where defendant's alleged contacts and activities within this jurisdiction, rather than being mere isolated acts which were unrelated to the plaintiff's causes of action, were integral and necessary acts from which the action arose, the required nexus had been shown between the facts underlying the causes of action and the defendant's alleged contacts and activities. <cross_reference>12 V.S.A. § 855</cross_reference>.</block_quote> <bold>5. Process — Substituted Service</bold> <block_quote> Fact that injury to decedent occurred in a neighboring state was merely fortuitous; the site of the accident does not detract from the conclusion that the cause of action arose and grew out of a business transaction engaged in within this state.</block_quote>

<bold>1. Zoning — Land Development</bold> <block_quote> A change in use of shell of building comes within the definition of land development under the zoning laws. <cross_reference>24 V.S.A. § 4303</cross_reference>(3).</block_quote> 4303(3). <bold>2. Zoning — Nonconforming Use — Existence</bold> <block_quote> The existence of a hollow shell of a building does not give a person a vested right upon adoption of a zoning ordinance, nor does a planned or<page_number>Page 166</page_number> intended use without substantial improvement of the premises, rather to avoid the provision of regulations covering permitted uses, the use of the premises prior to their enactment must be substantial.</block_quote>

<bold>1. Appeal and Error — Findings — Absence of Findings</bold> <block_quote> In contested matters, the absence of findings renders appellate review difficult and, where the result on its face appears unsupportable, may require remand for clarifying findings.</block_quote> <bold>2. Appeal and Error — Findings — Absence of Findings</bold> <block_quote> To determine whether a given result appears supportable, absent findings, the supreme court will examine the evidence, presuming the trial court to have had it in mind.</block_quote> <bold>3. Divorce — Separation Agreements — Nature of</bold> <block_quote> Separation agreements are contractual and a court may be justified in refusal to honor them, or later modify them, in the presence of fraud, unconscionable advantage, impossibility of performance, hampering circumstances intervening beyond the expectation of the parties, collusion or duress.</block_quote> <bold>4. Divorce — Property Settlement — Contempt</bold> <block_quote> An express finding of ability to pay is a prerequisite to punishment for contempt in failure to make payments under divorce decree.</block_quote>

<bold>1. Municipal Corporations — Negligence — Sovereign Immunity</bold> <block_quote> The law of sovereign immunity as it applies to governmental units places emphasis upon the distinction between proprietary and governmental functions, thus, absent insurance coverage, those functions which are governmental, building streets and sidewalks, are protected, while liability attaches for injuries sustained in furtherance of proprietary functions, maintenance of sewers.</block_quote> <bold>2. Pleading — Motion to Dismiss</bold> <block_quote> Mere vagueness or lack of detail is not a ground for a motion to dismiss, but should be attacked by a motion for a more definite statement. V.R.C.P. 12(b)(6).</block_quote> <bold>3. Municipal Corporations — Sovereign Immunity</bold> <block_quote> In view of the fact that a certain object may, depending upon its use at a particular time and place, involve either a governmental or proprietary function, a party is not precluded as a matter of law from<page_number>Page 304</page_number> proving that a catch-basin and grate are part of a municipality's sewer system regardless of a prior holding that they are part of the street.</block_quote>

<bold>1. Adverse Possession — Claim of Ownership</bold> <block_quote> While it is necessary for an adverse claimant to unfurl his flag on the land in order to apprise the owner of the claim upon the land, it is not necessary that the claimant verbally state to the owner that he has planted his standard of conquest.</block_quote> <bold>2. Adverse Possession — Claim of Ownership</bold> <block_quote> Absent evidence of permission, open and notorious use for the statutorily prescribed period of time gives rise to a prima facie claim of right, and once the grant is established by adverse use the subsequent granting of permission will not serve to divest or defeat the claim.</block_quote><page_number>Page 323</page_number> <bold>3. Adverse Possession — Elements</bold> <block_quote> Party claiming possession by adverse use is not precluded from establishing title by the fact that use of property was premised upon the mistaken belief that the property was actually his.</block_quote>