




2014 VT 116







Barrup v. Barrup (2012-415)
 
2014 VT 116
 
[Filed 7-Nov-2014]
 
NOTICE:  This opinion is subject
to motions for reargument under V.R.A.P. 40 as well as formal revision before
publication in the Vermont Reports.  Readers are requested to notify the
Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by mail at:
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any
errors in order that corrections may be made before this opinion goes to press.
 
 



2014 VT 116



 



No. 2012-415



 



Kevin Barrup


Supreme Court




(Marilyn Barrup, Intervenor)
 


 




 


On Appeal from




     v.


Superior Court, Orleans Unit,




 


Family Division




 


 




Tammy Barrup


December Term, 2013




 


 




 


 




Robert
  R. Bent, J.




 



Bruce C. Palmer of Downs Rachlin Martin PLLC, St. Johnsbury,
for Intervenor-Appellee/
  Cross-Appellant.
 
Tammy J. Barrup, Pro Se, Island Pond, Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Robinson and
Crawford, JJ.[1]
 
 
¶ 1.            
ROBINSON, J.   The primary issue in this case involves the rights
of a divorcing husband’s mother whose property interests were purportedly
adjudicated in a final divorce decree in an action to which she was not a
party.  Appellant, former wife Tammy Barrup, appeals an order modifying a final
property-division order to account for the recorded interest of her former husband’s
mother in property that was purportedly divided in the final divorce decree,
and also modifying spousal maintenance.  Intervenor, former husband’s mother Marilyn
Barrup, cross-appeals.  We affirm.
¶ 2.            
This has been an acrimonious divorce, with multiple post-judgment motions. 
The procedural background most relevant to this appeal is as follows.  The
parties were married in 1986 and separated for the last time in 2004.  The Superior
Court, Family Division, Orleans Unit issued a final order and decree of divorce
in this case in November 2007.  The court found that the parties owned, among
other things, husband’s interest in a closely held family business with his
parents, two other businesses run by husband, two residences, and various
investments.  The court found that “the parties’ LPL Financial Services stock
and mutual funds (including the CNB [Community National Bank] stock) had a
value of approximately $363,495.”[2]
 The court awarded $3,250 of these accounts to wife “to reflect her share of a
pre-separation disbursement from this account” to husband, and then awarded seventy
percent of the remaining funds to wife, while husband received the remaining thirty
percent.  The court explained that its award of a disproportionate share of
these accounts to wife reflected, and to some extent offset, the court’s award
of his interest in the family business to husband.[3]
¶ 3.            
With respect to spousal maintenance, the trial court concluded that
although the property-division award to wife might meet her reasonable needs in
the short term, she would not be able to support herself without exhausting
those resources.  Considering the parties’ respective earning power, the length
of the marriage, and wife’s reasonable needs, the court ordered husband to pay
spousal maintenance to wife in the amount of $12,000 per year, in quarterly
installments, until wife reached the age of sixty-two.
¶ 4.            
Husband filed a motion to amend the judgment, raising a host of issues. 
The court’s final decree included a CNB stock account valued at $59,000 as part
of the recitation of the value of the LPL portfolio.  Husband argued that this
was improper, contending that the CNB account was not marital property subject
to distribution.  He argued that the evidence presented at trial reflected that
the funds in this account came from an inheritance from his grandmother that was
to be held by his mother until her death.  He had testified that he was not
authorized to withdraw funds from the account.
¶ 5.            
In a January 2008 order, the trial court rejected husband’s motion, concluding
that the evidence did not support husband’s claim that the stock at issue was
held in trust or controlled by his mother.  To the contrary, the account-holders
were identified (presumably in the exhibits) as Kevin and Tammy Barrup, and the
value of the account was identified as $96,953.  The court’s distribution of a stock
account allegedly jointly owned by husband and his mother was not one of the
various issues raised by husband in his appeal of the final divorce decree and
the decision regarding his motion to alter or amend.  See Barrup v. Barrup,
No. 2010-018, 2010 WL 7799798 (Aug. 18, 2008) (unpub. mem.), https://www.vermontjudiciary.org/UPEO2006-2010/eo10-018.pdf.
¶ 6.            
Subsequently, wife filed multiple motions to enforce the judgment,
including a March 2009 motion for division of marital accounts, and husband
filed a motion to modify spousal maintenance.  Concerning the property
division, husband renewed his contention that one of the two CNB stock accounts
was not marital property subject to division.  In its November 2009 decision,
the trial court revisited the question of which of the CNB accounts were
subject to the property distribution in the final divorce decree.  The court
acknowledged that the CNB accounts were not actually part of the LPL portfolio,
which was undisputedly subject to a 70%-30% division pursuant to the express
terms of the final order, but concluded that the court’s intention in the final
divorce decree to subject the CNB accounts to the same 70%-30% split was clear
from its prior orders, especially given the valuation assigned to the account
that the court ordered to be divided.  That the CNB account owned jointly by
husband and wife was subject to division was also clear and undisputed.
¶ 7.            
With respect to husband’s argument that the other CNB account was not,
in fact, marital property, the court noted that the trial court’s order to
divide the disputed account (which was not appealed) was a final and binding
order of the court not subject to challenge.  Moreover, reviewing a bank record
that had been admitted at trial, the court concluded that the account in
question was held in husband’s name, and that “[t]here is absolutely no
indication that these shares are held subject to any restriction, or in trust
status.”[4] 
This order did not purport to address husband’s motion to modify spousal
maintenance.
¶ 8.            
Following this 2009 order, husband’s mother moved to intervene pursuant
to Vermont Rule of Family Procedure 4(a)(1) and Vermont Rule of Civil Procedure
24(b)(2), arguing that her property interests were affected by the court’s
entry orders, that she had not been party to the underlying divorce or
post-judgment motions, that she must be allowed to establish her ownership of
property over which the court had exercised jurisdiction, and that she must be
afforded due process in connection with the disposition of her property.  Husband’s
mother also raised, on her own behalf, the same argument as husband—that the
disputed CNB account was not marital property subject to distribution.  In an
accompanying motion based on V.R.C.P. 59 and V.R.C.P. 60, husband’s mother the
same assertion as husband had made previously—the disputed CNB account was
hers—held jointly with husband but subject to her control until her death.  The
court granted the motion to intervene.
¶ 9.            
The court held a hearing in August 2012 to address the outstanding
issues concerning the disputed account and the enforcement or modification of
spousal maintenance.[5]
 On the first issue, the court concluded that its prior conclusion that there
was no evidence that the disputed account was subject to any restrictions or
interest of husband’s mother was not based on good evidence.  Before husband’s mother
intervened, nobody presented the court with the actual stock certificates or
other primary evidence of ownership.  The bank account statement referenced by
the court in its November 2009 ruling was a “consolidated” bank statement that,
in accordance with the bank’s convention, simply reflected a person’s ownership
interest in any assets within the bank’s control without purporting to describe
how each account was held.  By the same token, because he was listed first on
the account, husband received the applicable IRS Form 1099-DIV, but that did
not mean he was sole owner.  In fact, the court found, husband’s mother had
owned the stocks in the account and put husband’s name on the account.  At the
time of the final divorce hearing, the stocks in the account were titled
jointly to husband and his mother, with rights of survivorship.
¶ 10.        
The court noted the testimony by husband as well as his father[6]
that husband’s mother had put husband’s name on the stocks as an estate-planning
tool, and that she had never intended to make a current gift to him.  However,
it did not credit that testimony, citing the presumption that “the act of
titling property in another’s name establishes intent to convey a present
[beneficial] interest in the property,” Brosseau v. Brosseau, 2007 VT
77, ¶ 12, 182 Vt. 533, 927 A.2d 773 (mem.), and noting that there was
evidence that husband and wife had included the value of the account on asset
and income statements when applying for loans.  The court thus concluded that
husband had an interest in the account that was subject to distribution by the
trial court, and proceeded to consider the extent of husband’s interest.
¶ 11.        
Noting that most courts presume that such joint accounts are held in
equal shares, and that by statute Vermont law presumes that jointly held real
property is held in equal shares, 27 V.S.A. § 2(b)(2)(A), the trial court
presumed that husband and his mother held equal shares in the account.  Because
it found no evidence to rebut this presumption, the trial court concluded that
half of the shares in the disputed account were subject to distribution.  The
court thus ordered husband’s mother, to whom husband had purportedly
transferred his interest in 2009, to convey to wife seventy percent of
husband’s interest in the account, or thirty-five percent of the account
(exclusive of any withdrawals or liquidations made since the account’s transfer,
and inclusive of any dividend reinvestments or share splits).
¶ 12.        
With respect to spousal maintenance, the court reviewed the ebbs and
flows of husband’s income over several years, and compared that income to the
income relied upon by the trial court in assessing spousal maintenance in the
first instance.  The court concluded that the initial divorce decree and
spousal-maintenance award assumed that husband’s annual income was $78,000,
representing his salary from the family business.  The court found that husband
had paid his spousal maintenance through March 2009, but had not paid anything
thereafter.  With respect to husband’s income, the trial court found that in
2009, husband’s salary from the family business was reduced to $21,230, plus
$28,000 of other income.  The court found that this loss was genuine and not
contrived by husband and his family to affect the litigation; rather, it arose
from conflict in husband’s relationship with his father.  By 2010, although his
income from the family business remained low, husband’s own business had
substantial income that returned him to the level assumed by the trial court in
the final divorce decree.  The trial court concluded that it could not reliably
determine husband’s 2011 income.  Husband’s 2011 tax returns had not been
completed at the time of the hearing.  The court found that the family business
was not doing as well by that time, but husband’s overall trucking business
increased in the wake of Hurricane Irene.  Husband had to borrow money to register
his trucks and buy workers’ compensation insurance, which the trial court found
to undercut wife’s testimony that husband was making hundreds of thousands of
dollars.  Husband’s affidavit of income and assets (Form 813), dated May 2011,
reflected $4,000 per month in monthly expenses, leading the trial court to
infer that he had income sufficient to support those expenses.
¶ 13.        
As of the 2012 hearing, the trial court concluded that husband’s income
had dropped relative to the time of the final divorce, although not by as much
as husband suggested.  At the time of the hearing, the court found that husband
was working full-time trying to shore up the family business, was earning
$1,000 per week, and did not have time to earn more through his other
businesses.
¶ 14.        
On the basis of these findings, the trial court modified husband’s spousal-maintenance
obligation from April 1, 2009 to April 1, 2010 to $200, but then restored his
prior spousal-maintenance obligation to the $1,000-per-month level of the final
divorce decree for the period from April 1, 2010 to January 1, 2012. 
Thereafter, and prospectively, given its findings of husband’s substantially
reduced income, the court reduced his spousal-maintenance obligation to $850
per month.  The court calculated the arrearage due to wife on the basis of
these figures.
¶ 15.        
Wife now appeals from this order, objecting to the trial court’s
decision permitting intervention, the court’s modification of the property-division
award, and the court’s downward modification of spousal maintenance.[7]
 Husband’s mother, as intervenor, cross-appeals the order directing her transfer
to transfer shares to wife.  Husband has not entered an appearance in this
appeal.
I.      
The Disputed CNB Account
 
A.
 
¶ 16.        
The first question is whether husband’s mother was entitled to intervene
in the parties’ divorce case.  On these narrow facts, we conclude that insofar
as husband’s mother was a record owner of property over which the trial court
exercised its jurisdiction, the trial court did not err in allowing her to
intervene.  
¶ 17.        
The Vermont Rules for Family Proceedings, which govern divorce cases
such as this, provide that in general the Vermont Rules of Civil Procedure
apply in divorce cases.  V.R.F.P. 4(a)(1).  Those rules, in turn, provide for
intervention of right “[u]pon timely application . . . when the
applicant claims an interest relating to the property or transaction which is the subject of the action and the
applicant is so situated that the disposition of the action may as a practical
matter impair or impede the applicant’s ability to protect that interest,
unless the applicant’s interest is adequately represented by existing parties.”
 V.R.C.P. 24(a)(2).  The Rules also provide for permissive intervention, in
which a court may, in its discretion, allow intervention “when an applicant’s
claim or defense and the main action have a question of law or fact in
common.”  Id. 24(b)(2).  No statute or other rule poses an impediment to
husband’s mother’s intervention, and we have previously recognized that the
usual standards governing intervention pursuant to V.R.C.P. 24 apply in divorce
cases.  Ihinger v. Ihinger, 2003 VT 38, ¶ 10, 175 Vt. 520, 824 A.2d
601 (mem.).
¶ 18.        
Here, husband’s mother has a documented record interest in property over
which the court asserted jurisdiction.[8] 
If husband’s mother were not allowed to intervene, wife could find herself
holding a judgment for property distribution on which she cannot collect—likely
triggering a post-judgment motion in this case to revisit the property-distribution
award.  Husband could be forced to choose between violating husband’s mother’s
legal rights or facing sanctions for contempt in this case.  Husband’s mother
would be forced to initiate a declaratory-judgment action involving all the
same parties and issues.  And the family division would undoubtedly be called
upon to determine the ramifications of the collateral judgment for the final
divorce decree in this case.  Considerations of finality and judicial economy
favor resolution of husband’s mother’s claims in the context of the ongoing
post-divorce proceedings in this case, further supporting the trial court’s
exercise of discretion.[9]
¶
19.        
Nor can we conclude that the trial court abused its discretion in
declining to deny the intervention as untimely.  See Mohr v. Vill. of
Manchester, 161 Vt. 562, 562, 641 A.2d 89, 90 (1993) (mem.) (noting that
the trial court has the discretion to deny intervention as of right when the motion
is untimely).  Wife suggests that we can infer from husband’s mother’s
relationship with him, and husband’s mother’s involvement in the litigation,
that husband’s mother was on notice throughout the divorce proceedings that the
CNB account bearing her name was in play.  But the testimony as to when husband’s
mother first learned that the court had ordered that the part of the CNB joint
stock account be distributed to wife was inconclusive, and the trial court made
no findings that would support the supposition that husband’s mother knew of
the court’s order and sat on her rights.  We have held that “intervention may
be permitted even after final judgment where those already parties are not
prejudiced, and that where there is real potential for harm to the intervenor
intervention should be denied as untimely only in extreme circumstances.”  Elwell
v. Vt. Commc’ns Mktg. Grp., Inc., 133 Vt. 627, 629, 349 A.2d 218, 220
(1975) (citation omitted).  In Elwell,
this Court held that the trial court did not abuse its discretion in allowing
intervention after a final judgment in connection with a tax foreclosure where
the judgment against the defendant in the case was to be levied against
property that the intervenor claimed it owned.  Id. at 627-30, 349 A.2d
at 219-21.  This case is very similar; husband’s mother contends that the
property implicated by the trial court’s judgment belongs to her.  We conclude
that the trial court did not abuse its discretion in allowing intervention.
B.
¶
20.        
The next question is whether the
trial court erred in determining that for the purpose of an order dividing the
disputed account, husband’s interest in the disputed joint account, subject to
the court’s power to distribute, was fifty percent.[10] 
The question of what portion of the account can properly be considered marital
property is distinct from the question of what portion of the account is
subject to attachment by husband’s judgment creditors, but the latter analysis
informs the former.  If, under Vermont law, the entire account is available to
satisfy husband’s judgment creditors, then it would be incongruous to conclude
that only half of the funds in the account, or none of the funds in the
account, are part of the collective marital estate.  Wife’s interest in the
account as part of the marital estate ought to be at least as robust as that of
husband’s creditors.
¶
21.        
This Court apparently has not
addressed the question of the extent to which a third-party creditor may secure
trustee process against a bank account owned jointly between a debtor and a
non-debtor.  Many courts have held that a third-party creditor can garnish only
the debtor’s share of a joint bank account—presumed to be an equal share in the
absence of contrary evidence.  See, e.g., In re Kondora, 194 B.R. 202,
209 (Bankr. N.D. Iowa 1996) (applying Iowa law and concluding that creditors
could garnish up to but no more than half of the bank account held jointly by
debtor and her ex-husband where neither the creditors nor the ex-husband
successfully rebutted presumption that debtor and ex-husband each owned half of
account).  In Kondora, the bankruptcy court concluded that under Iowa
law, joint bank accounts are rebuttably presumed to be owned in equal shares by
the tenants, and that “during a joint tenancy, each joint tenant is liable to
have the tenant’s fractional interest taken in satisfaction of the tenant’s
debts.”  Id. (citations omitted); see also Walnut Valley State Bank
v. Stovall, 574 P.2d 1382, 1386 (Kan. 1978) (where creditor seeks to
garnish account jointly held by debtor and non-debtor, the “presumption of
equal ownership should prevail in the absence of proof of ownership in some
other proportion”); Danielson v. Lazoski, 531 N.W.2d 799, 801 (Mich. Ct.
App. 1995) (“[W]ith respect to garnishment
proceedings . . . [joint account owners] are presumed to be
equal contributors and equal owners and . . . under this
presumption, the garnishment order regarding [debtor’s] assets applies only to
his half of the . . . funds.”).  
¶
22.        
 Other courts take the position
that in general a debtor who jointly owns an account is rebuttably presumed to
own the entire account such that the full amount of the account is available to
judgment creditor for garnishment.  See, e.g., Fleet Bank Conn., N.A. v.
Carillo, 691 A.2d 1068, 1072 (Conn. 1997) (concluding that “a coholder’s
property interest in the joint account exposes that account, in its entirety,
to the creditor’s collection powers”); Amarlite Architectural Prods., Inc.
v. Copeland Glass Co., 601 So.2d 414, 416 (Ala. 1992) (“[J]oint accounts
are garnishable to the extent of the ownership of the
debtor . . . [and] there is a rebuttable presumption that
the funds in the joint account belong to the debtor.”); Maloy v. Stuttgart Mem’l
Hosp., 872 S.W.2d 401, 450 (Ark. 1994) (same); see generally Joint Bank
Account as Subject to Attachment, 86 A.L.R.5th 527 §§ 7, 8 (2001).
¶
23.        
Like the trial court, we conclude
that the former rebuttable presumption—that only a debtor’s pro rata share of a
joint account is subject to garnishment by that debtor’s individual creditors—applies
in Vermont.  In the context of real property, the Legislature has specifically
provided that unless otherwise specified, joint tenants to real property are
presumed to have equal interests.  See 27 V.S.A. § 2(b)(2)(A).  Although
rules applicable to real property do not necessarily apply to personal property
such as bank accounts, the starting presumption as to parties’ likely
intentions reflected in the real-property statute applies with equal force to
joint bank accounts.  By analogy, this rule provides a reasonable basis for
determining the portion of the account subject to equitable division as part of
the marital estate.  Accordingly, we conclude that the trial court did not err
in presuming, absent persuasive evidence in either direction, that the share of
the joint account shared by husband and husband’s mother that was subject to
the family court’s property distribution was fifty percent.
C.
¶
24.        
In light of its finding as to
husband’s distributable share of the disputed account, the next question is
whether the trial court abused its discretion in amending the final order to
award wife seventy percent of husband’s fifty-percent share of the disputed
account, effectively reducing wife’s share of the overall property distribution
relative to husband’s.  Husband’s mother did not necessarily advocate reducing
wife’s overall share of the property distribution; she simply sought to prevent
the court from assessing a judgment against her assets.  She argued that the
court was free to order husband to pay wife the value of the disputed CNB
account.  Wife clearly contests the court’s order that effectively reduced not
only the real dollars she received, but also her proportionate share of the
overall marital estate, since she was to receive a disproportionate share of
the CNB account. 
¶ 25.        
We review the trial court’s decision deferentially
both because the family division “has wide discretion in the disposition
of marital property upon divorce, and we will affirm its decision where we find
reasonable evidence to support the court’s findings and conclusions,” Johnson
v. Johnson, 155 Vt. 36, 43, 580 A.2d 503, 507 (1990), and because our review of a trial court’s
exercise of discretion to amend a judgment pursuant to V.R.C.P. 59 or 60(b), as
applied to the family court through V.R.F.P. 4(a), is deferential.  In re
D.M., 162 Vt. 33, 36, 641 A.2d 774, 776 (stating that we review trial court
decision on V.R.C.P. 60(b) for abuse of discretion).[11]
¶
26.        
Affording this deference, we
conclude that the trial court was within its discretion.  The court expressly
considered the rights in the shares that wife had as a creditor, and noted that
if it were considering the question of property division from scratch it might
divide the stock differently.  Although the court may have had the discretion
to increase the portion of husband’s interest in the CNB account to be distributed
to wife in light of the fact that husband’s distributable interest in the
account was half of what the trial court supposed, or to require some sort of
payment from husband’s separate resources to make up for wife’s shortfall, it
was not required to do so.  In this exceptionally rancorous and lengthy
divorce, the trial court opted to remove husband’s mother’s interest in the
joint account from consideration, and maintain the same seventy-thirty
proportionate division of the remainder.  The final decree awarded wife the
proceeds from the sale of the marital residence, direct payments from husband,
and seventy percent of the LPL portfolio and the CNB stock account that was
held jointly by husband and wife and is not in dispute here.  The value of
these awards collectively exceeds $375,000.  The evidence reflects that the
value of the disputed stock account was about $59,000.  Because she is now to
receive seventy percent of half of that figure, instead of seventy
percent of the full amount, wife stands to receive about $20,000 less than she
expected.  (Because the court ruled that husband has an interest in only half
of the disputed stock account, and he was allocated thirty percent of that
account, husband likewise retains about $9,000 less than expected.)  In the
context of the overall property-division award, we conclude that the trial
court did not abuse its discretion by declining to readjust the property
division to mitigate the impact on wife’s proportionate share of the total
property distribution.
D.
¶ 27.        
We briefly address husband’s mother’s
claim on cross-appeal that both joint account holders have an undivided
interest in the whole and therefore the joint account cannot be breached to pay
husband’s individual debts, including his obligations to wife.  Although courts
are divided on which presumption applies—a presumption that joint account holders
own equal interests versus a presumption that a debtor has a garnishable
interest in the entire joint account, courts in both of these camps agree that
a debtor’s share of a joint account—determined with
reference to whichever presumption or presumptions the courts apply—is subject
to garnishment by creditors.  See supra ¶¶ 21-22 and cases cited
therein.  Although property division in a divorce case is not identical to the
attachment of funds by a creditor, it is closely analogous.  Insofar as we have
concluded that a portion of the funds are subject to attachment to satisfy
husband’s judgment creditors, and thus available to help meet husband’s
expenses and debts, they are properly considered part of the marital estate. 
To the extent that husband’s mother argues that as a matter of law no portion
of her joint account with husband is subject to distribution to wife, this argument
flies in the face of a widespread consensus.
II. Spousal Maintenance
¶ 28.        
Many of wife’s objections to the spousal-maintenance
order and the evidence upon which it was based relate to the final divorce
order.  This Court affirmed that order on appeal, Barrup, No.
2010-018, 2010 WL 7799798, and the order has long been final.  We will not
revisit the trial court’s findings and conclusions in its final order and
decree of divorce.
¶
29.        
Many of wife’s arguments relate to
husband’s failure to pay her the spousal maintenance required by the court’s order,
and her motion to enforce.  Husband has not cross-appealed the trial court’s
order compelling him to pay spousal-maintenance arrearages, so we do not review
the trial court’s order enforcing spousal maintenance.
¶ 30.        
Wife also objects to the trial court’s downward
modification of husband’s spousal-maintenance obligation.  We interpret her
arguments as a challenge to the sufficiency of the evidence to support the
court’s modification order, and to the trial court’s exercise of discretion in
connection with the modification motion. 
¶ 31.        
 In the event of “a real, substantial,
and unanticipated change of circumstances,” a court may modify a spousal-maintenance
order.  15 V.S.A. § 758.  In modifying spousal maintenance, a court may apply
the factors set forth in 15 V.S.A. § 752.  “[T]he standard of review
regarding a trial court’s finding of changed circumstances is a deferential one
. . . .  [W]e will not
disturb the court’s determination unless its exercise of discretion was on
grounds or for reasons clearly untenable, or the exercise of discretion was to
a clearly unreasonable extent.”  Meyer v. Meyer, 173 Vt. 195, 197, 789
A.2d 921, 923 (2001).  Moreover, “[a] court has broad discretion in
determining the amount and duration of a [spousal-]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.). 
¶
32.        
We conclude that the trial court’s
order in this case was within its discretion.  The trial court found that
husband had suffered a substantial drop in income in 2009, significantly
undermining his ability to pay wife $12,000 in annual spousal maintenance.  The
trial court further found that after a temporary rebound in his income in 2012,
husband experienced another sustained drop in his income attributable to challenges
facing the family business and the effective end of his other businesses.  He
was earning around $52,000 as opposed to the $78,000 contemplated in the final
divorce decree.  The trial court found that this income drop was real.  Even
though wife offered testimony and evidence to the contrary, there was evidence
to support the trial court’s findings.  Smith v. Wright, 2013 VT 68,
¶ 22, 194 Vt. 326, 79 A.3d 876 (“As a general matter, we will uphold
factual findings on appeal if any credible evidence in the record supports
them, leaving credibility determinations to the trier of fact.”)  (alteration
and quotation marks omitted).  And these income drops were sufficient to
support the trial court’s implicit finding of a real, substantial, and
unanticipated change of circumstances.
¶
33.        
Given the changed circumstances, the
trial court’s modest reduction of spousal maintenance by $150 per month, from $1,000
per month to $850 per month, in response to husband’s income drop of over
$2,000 per month, likewise did not exceed its discretion.  Although wife
believes husband is making more money than he acknowledges, the trial court
credited husband’s evidence—to an extent—and concluded that the modest
reduction in spousal maintenance was warranted.  That conclusion was within the
trial court’s discretion.
Affirmed.



 


 


 




 


 


Associate Justice



 
 
¶ 34.        
SKOGLUND, J., concurring.   I write separately to urge caution in
allowing third parties to intervene in divorce cases.  This is the first time
this Court has approved an intervenor seeking to protect her property interests
in a divorce proceeding.  The only other time we dealt with a third party so
situated, Stearns v. Stearns, 10 Vt. 540 (1838), we denied creditors’
request to intervene without discussion.  Courts in other states have limited
intervention in divorce cases, and given our repeated instruction that the
family division is a court of limited jurisdiction, we ought to do the same.
¶ 35.        
To strike a balance between “considerations of finality and judicial
economy,” ante, ¶ 18, on one hand, and preventing banks, distant
cousins, and a host of other intervening strangers from protracting often tense
divorce proceedings and undermining the privacy and dignity of spouses engaged
in such litigation, on the other hand, we should limit who may intervene in
divorce cases and the circumstances under which they may do so.  Indeed, I
believe 4 V.S.A. § 33, which outlines the family division’s jurisdiction,
and 15 V.S.A. § 751, which governs the division of marital assets, compel
these limitations.  See Luthen v. Luthen, 596 N.W.2d 278, 281 (Minn. Ct.
App. 1999) (denying intervention of husband’s general creditors based in part
on reasoning that Minnesota’s marital property division statute, similar to 15
V.S.A. § 751, “makes no mention of third-party
creditors . . . having a vested interest in the marital
property of either the husband or the wife”).  The following restrictions
would, in my opinion, strike that balance: (1) that the third party’s interest
be in the form of a direct proprietary claim as to a particular asset, rather
than an unvested future interest or general, unsecured debt interest against
one or both spouses; (2) that the intervenor show prima facie proof of her
purported interest and that such interest will be directly affected by
disposition of the matter in which intervention is sought; (3) that the amount
or share of the particular property be in dispute; (4) that the intervention be
sought only to directly challenge distribution of property to which the third
party claims an interest, not to address any other ancillary matters; and (5)
that the intervenor’s interest not be adequately represented by one of the
party-spouses.
¶ 36.        
Strong public policy dictates that the rights of spouses to their own
divorce proceeding, where they can present their individual respective claims
to marital property, maintenance, and child support, cannot be clouded by
intervenors outside the marriage who speculate that they have a financial stake
in one spouse getting more money than the other.  “A third party seeking
intervention in a divorce proceeding for the purpose of protecting a property
interest assumes the burden of demonstrating an interest which will outweigh
the substantial privacy interests of the divorcing parties.”  Boyle v. Boyle,
459 S.E.2d 401, 404 (W.V. 1995) (interpreting a rule virtually identical to
V.R.C.P. 24 and holding that courts must balance the parties’ substantial
privacy interests against considerations relating to potential intervenor’s
interests).  We should be especially mindful of the limiting language of
Vermont Rule of Civil Procedure 24 in divorce proceedings in light of the
emotional and private nature of such cases and the circumscribed jurisdiction
of that tribunal.  See Golden v. Cooper-Ellis, 2007 VT 15, ¶¶ 35, 43-46,
181 Vt. 359, 924 A.2d 19 (holding that family court had no jurisdiction to
determine husband’s brother’s rights, allegedly created by oral agreement
between husband and brother, with respect to marital real property, and that court
properly determined husband’s interest based on record title); see also Wade
v. Wade, 2005 VT 72, ¶ 12, 178 Vt. 189, 878 A.2d 303 (family court
could not analyze ownership of an account titled in child’s name for purposes
of equitable property distribution in a divorce proceeding because divorce
court had no jurisdiction over Uniform Gifts to Minors Act issues); Ward v.
Ward, 155 Vt. 242, 247-48, 583 A.2d 577, 581 (1990) (denying joinder of
tort claims between parties in a divorce action and noting that joining
potentially adversarial civil claims to a divorce action undermines the
“amicable settlement of disputes that have arisen between parties to a
marriage” (quoting Simmons v. Simmons, 773 P.2d 602, 604-05 (Colo. App.
1988) (Van Cise, J., concurring in part and dissenting in part))).
¶ 37.        
“ ‘Because equity seeks always to do complete justice, [however,]
third parties are properly joined in a divorce action so as to facilitate
resolution of the spouses’ marital claims.’ ”  B. Turner, Equitable
Distribution of Property § 3:6, at 113 (3d ed. 2005) (quoting Brown
v. Brown, 525 S.E.2d 359, 360 (Ga. 2000)).  In a divorce proceeding where
the family division’s ruling on ownership of a particular asset will directly
affect a third party’s vested interest in that asset, the intrusion caused by
allowing intervention will be outweighed by considerations of finality and
judicial economy.  See, e.g., Baker v. Baker, 128 N.E.2d 616, 617-18
(Ill. App. Ct. 1955) (approving intervention of husband’s siblings where wife’s
complaint sought partition of real estate jointly owned by spouses, and
siblings claimed they loaned money to purchase house in exchange for execution
of mortgage).  There, a second court action to resolve the third party’s
interest would be inevitable and imminent.  Indeed, where a third party’s
interest is direct and substantial, that third party may be indispensable to
the property-distribution proceeding.  See In re Marriage of Zabel, 565
N.W.2d 240, 243-44 (Wis. Ct. App. 1997) (husband’s mother was properly joined,
even against her will, where wife alleged that husband fraudulently conveyed
marital home to mother).  
¶ 38.        
The scales would tip the other way, however, where a third party’s
interest is inchoate or general as to one or both spouses, rather than tied to
particular property.  In those situations, a second court action may not even
be necessary and the family division’s distribution of property would not
prejudice that third party.  See, e.g., Luthen, 596 N.W.2d at 281-84
(denying intervention of social services agency and mother of husband’s
out-of-wedlock child, who sought to ensure that husband was left with
sufficient assets from which to pay child support, because they were
essentially general unsecured creditors); Poteat v. Poteat, 632 S.W.2d
511, 512 (Mo. Ct. App. 1982) (reversing trial court’s grant of insurance
company’s motion to intervene because insurance company’s claim as judgment
creditor of husband “d[id] not originate in anything appearing in the
dissolution action pleadings, nor w[ould] it gain or lose by the direct
operation of any property disposition made in the dissolution decree.”). 
Therefore, intervention by general unsecured creditors or third parties with
inchoate interests in marital property would seem to be rarely necessary.
¶ 39.        
A third party’s direct, vested claim to a particular asset subject to
distribution is not enough, though, to guarantee him intervenor status.  Where
the proportion of ownership of an asset as between a party-spouse and the
potential intervenor is undisputed, distribution of only the spouse’s share
does not directly affect the third party’s share.  See Turner, supra,
§ 3:6, at 116 & n.16 (citing cases).  Intervention there is not
necessary to protect the third party’s interest.  See Marks v. Marks,
609 So.2d 710, 710 (Fla. Dist. Ct. App. 1992) (per curiam) (holding that trial
court should have divided majority shares of corporation between spouses
without joining minority third-party shareholders).  On the other hand, where a
party-spouse and the third party do not agree as to their proportion of
ownership, the family division can properly resolve the third party’s claim as
part of its obligation to identify the parties’ property.  Turner, supra,
§ 3:6, at 116.
¶ 40.        
Finally, intervention should be limited to the smallest intrusion
necessary to resolve the property dispute.  See, e.g., Aarestrup v.
Harwood-Aarestrup, 868 A.2d 817, 820 (Conn. Super. Ct. 2005) (granting
motion to intervene in divorce action for limited purpose of holding a hearing
to determine ownership of the property in question).  Courts should consider
whether the potential intervenor could enforce any alleged rights in a separate
action and the extent to which the third party’s interest would be adequately
represented by one of the spouses, “thereby avoiding their inappropriate
insinuation into the private affairs of a married couple.”  In re Marriage
of Gonzalez, 2000 UT 28, ¶ 40, 1 P.3d 1074, 1083 (Utah 2000). See also,
e.g., Fisher v. Fisher, 546 N.W.2d 354, 358 (N.D. 1996) (denying
intervention of minority shareholders of closely held corporation owned by
divorcing spouses, noting minority shareholders’ “many [other] routes to
relief” and speculative, complicated process of valuing minority shares); Ex
parte Kirkley, 418 So. 2d 118, 120 (Ala. 1982) (finding intervention of
first wife in divorce action between husband and second wife inappropriate
because first wife had no “right or title” to marital property and could seek
to obtain money owed to her under prior divorce decree through separate
contempt suit).
¶ 41.        
In consideration of the above factors, husband’s mother in this case was
properly joined as an intervenor, but I stress the narrow grounds upon which I
agree with the result. 
 



 


 


 




 


 


Associate Justice



 




[1]  Justice Crawford was present for oral argument, but
did not participate in this decision.


[2]  The court at this juncture may have thought that the
Community National Bank stocks were part of the LPL portfolio, which they were
not.  The parties actually had two stock accounts at CNB that were not part of
the LPL account.  One, containing 911.80 shares, was undisputedly owned jointly
by husband and wife.  The other account, then consisting of 4818.76 shares, is
the one in dispute.  Unless otherwise indicated, references to the disputed CNB
account relate to this latter, disputed account.
 


[3]  Because the focus of this appeal is the distribution
of one particular account, we do not here recount the court’s description of or
order concerning all of the parties’ assets and debts.  We discuss infra
the broader property-division analysis only to the extent it is relevant to the
issue in this case.


[4]  Husband had, by this time, apparently conveyed his
interest in the disputed account back to his mother.  The trial court noted
that any purported transfer of husband’s share to his mother following the
final divorce decree would be invalid as in avoidance of lawful orders of the
court.


[5]  The inordinate delay between the initial motions and
the court’s actual hearing seems to be the result of multiple continuances,
substitutions of counsel, discovery and other ancillary conflicts, and other
motions.
 


[6]  Due to memory loss, husband’s mother was not able to
testify at that point.


[7]
 Husband’s mother urges us to dismiss this appeal or disregard wife’s arguments
because wife’s brief did not comply with this Court’s rules, did not include a
printed case, and includes a host of documents not admitted into evidence
below.  To the extent wife has submitted documents not in the record below, we
do not consider them.  See V.R.A.P. 10(a) (explaining that the record on appeal
consists of original documents, data and exhibits filed with the trial court,
as well as transcripts).  We exercise our discretion pursuant to V.R.A.P. 30(f)(1)
to dispense with the requirement of a printed case.  Although wife has failed
to state her arguments clearly and concisely, with citations to the record and
applicable law, V.R.A.P. 28(a), we can discern from her brief several
challenges relevant to the order subject to this appeal: she objects to the
trial court’s allowing husband’s mother to intervene by post-judgment motion as
well as the trial court’s revision of the property division order, and she
argues that the trial court’s modification of spousal maintenance was not
supported by the evidence.  Given the leeway that we have traditionally
afforded to parties who are not represented by a lawyer, we conclude that these
issues are raised with sufficient clarity in wife’s brief to warrant our
consideration.  See Sandgate Sch. Dist. v. Cate, 2005 VT 88, ¶ 9, 178 Vt. 625, 883 A.2d 774 (mem.) (noting that this Court
has “traditionally given wider leeway” to litigants representing themselves); Beyel
v. Degan, 142 Vt. 617, 619, 458 A.2d 1137, 1138 (considering arguments that
could be discerned from brief filed by self-represented appellant even though
appellant had failed to state the case concisely, to clearly delineate the
issues for resolution, and to cite supporting authority).


[8]  We need not here consider whether a third party who
claims ownership of property without a record such as a deed or stock
certificate may likewise intervene in a pending divorce action. 
 


[9]  Husband’s mother argues that a refusal to allow her
to intervene and prove her claim before she is deprived of property titled in
her name would raise due process issues.  See, e.g., Mathews v. Eldridge,
424 U.S. 319, 333 (1976) (stating that the fundamental requirement of due
process is the opportunity to be heard at a meaningful time and in a meaningful
manner).  Because we affirm the trial court’s decision to allow her to
intervene on the basis of the rules, we do not reach the constitutional
question.


[10]  There was ample evidence to support the court’s
finding that the disputed CNB account was, in fact, a joint account held by
husband and his mother.


[11]  Husband’s mother filed her motion more than ten days
after the trial court’s order, designating both V.R.C.P. 59 and V.R.C.P. 60 as
bases for her motion.  Even if V.R.C.P. 59 applied, notwithstanding this delay,
the trial court’s ruling would be subject to the same deference.  Houghton
v. Leinwohl, 135 Vt. 380, 382, 376 A.2d 733, 736 (1977) (stating that decision
on V.R.C.P. 59 motion “is addressed to the sound discretion of the trial court”
and will not be disturbed in the absence of “manifest abuse of discretion”). 


