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Family Court Erred in Using a Hypothetical Sales Commission Calculate the Value of One Party’s Interest in the Marital Home

In MacCormack v. MacCormack, 2015 VT 64 (April 17, 2015), the Vermont Supreme Court affirmed the entirety of a divorce order, except the use of a hypothetical sales commission to value Husband’s interest in the marital home.

Issue: Husband challenged the trial court’s award of sole legal and physical parental rights and responsibilities of the parties’ child to Wife. Husband also challenged the trial court’s use of a hypothetical real estate commission in valuing his portion of the equity in the marital home, as well as the court’s division of the parties’ retirement assets. Wife cross-appealed, challenging the trial court’s parent-child contact order.

Holding: Noting that the trial court has wide discretion in family cases, the Court held that 1) there was no error in awarding sole legal and physical rights and responsibilities to Wife where it was clear that the trial court considered all the statutory factors regarding the child’s best interest and where the only factor that spoke for or against either parent was the fact that Husband had deceived Wife about his qualifications as an attorney; 2) it was error to subtract a hypothetical sales commission from the court’s calculation of Husband’s interest in the equity of the marital home, where there was no indication that Wife was planning to sell the home (though the Court was careful to note that using such hypotheticals are not always improper); 3) there was no error in the trial court’s distribution of the retirement assets; and 4) there was no error in crafting a parent-child contact order that minimized transitions for the child, even if it increased inconvenience for Wife’s work schedule.

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