Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                               ENTRY ORDER

                                SUPREME COURT DOCKET NO. 2016-375

                                            MARCH TERM, 2017

    Lisa Mangini                                           }    APPEALED FROM:
                                                           }
                                                           }    Superior Court, Windsor Unit,
       v.                                                  }    Family Division
                                                           }
                                                           }
    Richard Hardie                                         }    DOCKET NO. 67-2-08 Wrdm

                                                                Trial Judge: Katherine A. Hayes

                               In the above-entitled cause, the Clerk will enter:

       Ex-husband appeals from the superior court’s denial of his motion, pursuant to Vermont Rule of
Appellate Procedure 60(b)(2), for relief from the court’s distribution of marital property in this divorce
proceeding due to ex-wife’s alleged fraud upon the court.1 We affirm.

         This is the third appeal to this Court in the divorce proceeding, and the fourth arising from the
litigation as a whole. The parties married in 2002 and separated in 2007. Wife filed for divorce in 2008.
The superior court issued a final divorce judgment in July 2011, awarding husband ninety percent of the
marital property and declining to award wife maintenance. Wife appealed, and this Court reversed and
remanded the matter for the superior court to reconsider its property and maintenance decisions. See
Mangini v. Hardie, No. 2012-362, 2014 WL 3709678 (Vt. April 25, 2014) (unpub. mem.),
https://www.vermontjudiciary.org/UPEO2011Present/eo12-362.pdf (Mangini I). In relevant part, we
remanded the matter for the superior court: (1) to provide adequate findings to explain its “highly unequal
distribution of marital property” in awarding wife only ten percent of the property; and (2) to take into
account our decision, issued only a month earlier, “concluding that wife cannot avoid the 2008 mortgage
[on the Weathersfield, Vermont, property awarded to her in the final divorce order] based on her claimed
homestead exemption.” Id. at *2; see Brattleboro Savings & Loan Ass’n v. Hardie, 2014 VT 26, 196 Vt.
144. We noted that the superior court “appear[ed] to have awarded wife the marital home under the
assumption—or at least presumed likelihood—that she ultimately would obtain the property free and clear
of the 2008 mortgage.” Mangini I, 2014 WL 3709678, at *3. Although we reversed the superior court’s
property and maintenance determinations, we explicitly did “not disturb the family court’s decree of
divorce,” which became final under the July 2011 divorce order. Id.

        In September 2013, more than two years after the parties’ divorce became final but before Mangini
I issued, wife’s father died. Following this Court’s remand, husband filed an emergency motion stating
that wife’s father had died, that the father’s estate was worth over fifteen million dollars, and that wife
should be required to use her inheritance to pay the notes on the Weathersfield property that was awarded
to her and in foreclosure. At a June 2014 status conference held the day after the motion was filed, the
superior court emphasized to the parties that this Court did not reverse the divorce decree, which became

        1
            For purposes of simplicity, we will refer to the parties hereinafter as “husband” and “wife.”
final in 2011, and that any “inheritance [was] not going to be part of the picture,” except “in regard to
[wife’s] request for spousal support.”

        A hearing on the remand took place in October 2014. At the hearing, wife’s attorney stated that
wife had not yet received anything from her father’s estate, 2 and wife testified that at the time of the 2011
divorce hearing she had not received any inheritance. The superior court reiterated at the hearing that any
inheritance would potentially affect only a determination of spousal support. During the hearing, husband,
who was proceeding pro se at that time, asked for a continuance to obtain an attorney. The court granted
the request, and in January 2015 husband obtained counsel, who served interrogatories on wife, asking
wife, among other things, to list all distributions from her father’s estate that she had received since 2011.
On March 12, 2015, the parties stipulated that the superior court could issue a decision without taking
further evidence and that the parties would submit written memoranda by March 20, 2015, and responses
by March 27, 2015. On March 20, husband filed a memorandum in which he stated that the parties had
agreed not to seek attorney’s fees from each other on remand and that he would forgo any additional
discovery.

        After receiving the parties’ memoranda, the superior court issued a decision in May 2015. Based
on its examination of the statutory factors contained in 15 V.S.A. § 751(b), the court awarded wife twenty
percent of the marital estate, which constituted the net value of the Weathersfield property, together with
$60,000 in liquidated assets. The court also ordered husband to be responsible for any deficiency in the
event of a foreclosure sale of the Weathersfield property. The court stated that it would credit husband’s
claim that his retirement accounts were completely depleted by March 2011, but would award wife any
remaining assets in the accounts as of the time of the final judgment, as well as any assets previously in
the accounts but not yet spent on the date of the court’s 2011 ruling, because husband “should bear the
cost of any failure to elucidate his assets.” The court declined to award wife any maintenance.

        Husband appealed, arguing in relevant part that the superior court erred in: (1) awarding wife
twenty percent of the marital property even though it found that only one of the statutory factors favored
wife; (2) ordering him to pay any deficiency judgment resulting from a foreclosure sale of the
Weathersfield property, which he stated turned out to be approximately $169,000; and (3) awarding wife
whatever assets remained in his retirement accounts. In affirming the superior court’s decision, we found
a reasonable basis for awarding wife twenty percent of the marital estate. Mangini v. Hardie, No. 2015-
255,     2016      WL       182392,        at    *4     (Vt.    Jan.      7,    2016)    (unpub.     mem.),
https://www.vermontjudiciary.org/UPEO2011Present/eo15-255.pdf (Mangini II). We also determined,
notwithstanding husband’s claims that the court’s orders concerning the deficiency judgment and
retirement accounts effectively increased wife’s share of the marital estate beyond twenty percent, that the
court acted within its discretion in: (1) requiring husband to pay the alleged $169,000 deficiency judgment
based on its reasoning that he should bear a portion of the burden he unilaterally created by defaulting on
the house payments; and (2) awarding wife what husband claimed was $172,000 from his retirement
accounts based on its reasoning that he had represented that the accounts were depleted and was in the
best position to provide evidence of those assets. Id.

         Four months after this Court issued its affirmance of the May 2015 remand order, husband filed a
Rule 60(b) motion seeking relief from the remand order based on his allegation that wife had committed
fraud upon the court by claiming during the proceedings on remand that she had received no inheritance
distributions when in fact she had. The superior court denied the motion without holding a hearing, ruling
that relitigation of the issue concerning wife’s alleged deception as to her inheritance is barred by the law-
of-the-case doctrine because husband raised the issue in his direct appeal of the remand order and this

       2
          In this appeal, husband alleges that wife received partial inheritance distributions of $25,000 on
April 29, 2014, and $354,800 on June 19, 2014.
                                                      2
Court declined to credit it. The court also ruled, alternatively, that: (1) wife was entitled to assert that her
inheritance should not be considered, given that this Court did not disturb the 2011 date of the divorce
decree; (2) in the remand proceedings, the superior court stated that any inheritance would be considered
only with respect to spousal support, and then declined to award wife maintenance; and (3) husband failed
to offer evidence of wife’s inheritance distributions within a reasonable time.

        On appeal, husband argues that he is entitled to relief from the superior court’s property
distribution on remand, given wife’s misrepresentations during the remand proceedings concerning her
inheritance distributions, which were not proved to be demonstrably false until New Jersey probate records
regarding the case were made public in January 2016. Husband acknowledges that wife’s inheritance
distributions were not marital assets subject to distribution, but contends that they were relevant to the
property division pursuant to 15 V.S.A. § 751(b)(6), which lists as one of the factors for the court to
consider in distributing marital property “[t]he value of all property interests, liabilities, and needs of each
party.”

         We find no merit to husband’s arguments. As this Court stated in Mangini I, the parties’ divorce
became final in July 2011. Wife’s father did not die until more than two years after the divorce became
final. The superior court unequivocally stated to the parties during the remand proceedings that any
inheritance would be considered only with respect to wife’s request for maintenance, which the court
ultimately denied. The court was correct in taking this approach. The parties’ property interests,
liabilities, and needs could have been considered by the superior court in dividing marital property, but
only as they existed at the time of the divorce. Cf. Osborn v. Osborn, 147 Vt. 432, 433-34 (1986) (holding
that where husband “was a legatee of his mother’s estate, which was in probate but had yet to be distributed
at the time of the divorce proceeding,” family court could “consider an undistributed inheritance among
the total economic circumstances of both parties under 15 V.S.A. § 751”). Our limited remand in Mangini
I did not suggest that the court could examine the parties’ then-current assets in reconsidering its
distribution of marital property, which unlike maintenance is not subject to modification following the
divorce. For these reasons, this Court in Mangini II did not credit defendant’s claim that wife had received
inheritance distributions, albeit years after the parties’ divorce was finalized. Given the circumstances of
this case, the superior court did not err in denying husband’s Rule 60(b) motion without holding a hearing.
See Sandgate Sch. Distr. v. Cate, 2005 VT 88, ¶¶ 6, 12, 178 Vt. 625 (stating that decision on motion for
relief from judgment will not be disturbed absent “a clear and affirmative abuse of discretion” and that
court has the “discretion to deny the motion without a hearing” when “the explanations offered by a party
are unreasonable”).

        Affirmed.

                                                      BY THE COURT:


                                                      _______________________________________
                                                      Paul L. Reiber, Chief Justice

                                                      _______________________________________
                                                      Marilyn S. Skoglund, Associate Justice

                                                      _______________________________________
                                                      Harold E. Eaton, Jr., Associate Justice



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