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
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                                          2016 VT 88

                                         No. 2015-272

Kenneth Coons                                                Supreme Court

                                                             On Appeal from
   v.                                                        Superior Court, Franklin Unit,
                                                             Family Division

Melissa Coons                                                June Term, 2016


Howard E. Van Benthuysen, J.

Nicholas L. Hadden, St. Albans, for Plaintiff-Appellee.

Stacey A. Adamski of Kolvoord, Overton & Wilson, PC, Essex Junction, for
 Defendant-Appellant.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


        ¶ 1.    ROBINSON, J.      Wife seeks to set aside a stipulated final order for divorce on

the ground that she entered into the agreement in reliance on an in-chambers “weather report” in

which the trial judge misstated the applicable law. We affirm.

        ¶ 2.    The material facts are not in dispute.1 On May 7, 2015, the parties conducted the

second day of their final divorce hearing. Over the course of the hearing, testimony was elicited

about the parties’ assets, including husband’s not-yet-vested military retirement benefit. Near

        1
          At the center of wife’s appeal are statements made by the trial court in chambers and
off the record. Although we have no formal record of the in-chambers conference, the trial
court’s ruling on wife’s post-judgment motion contains the trial court’s own account of the
conference, which is generally consistent with wife’s description and is not in dispute. Cf. State
v. Trowell, 2015 VT 96, ¶ 16 n.4, __ Vt. __, 131 A.3d 178 (noting lack of on-the-record
evidence from off-the-record discussion with court).
the end of the hearing, the trial court called a brief recess and asked counsel to meet in chambers.

According to the trial court, during that in-chambers meeting it told the parties that “it would not

and could not distribute [husband’s] military retirement because he had not yet served the

requisite number of years to vest in the system. In short, there was not yet anything to distribute

because [husband] had no entitlement to the benefit.” The trial court indicated that the benefits

could be distributed only once they vested; because husband was ten months shy of a full twenty

years of service as of the final hearing date, there was nothing to distribute.

       ¶ 3.    Following this conference in chambers, the parties entered into an stipulation

resolving all outstanding issues. With respect to property division, wife agreed to accept a lump-

sum payment of $15,000 and waived any claims to husband’s expected but not-yet-vested

military retirement benefit. Wife affirmed on the record her satisfaction with the stipulation, and

the trial court incorporated the stipulation into the final divorce decree. The court signed the

final order the next day, and made the decree nisi absolute on May 7.2

       ¶ 4.    On May 21, wife filed a Rule 59 motion to alter or amend the final order. See

Reporter’s Notes, V.R.C.P. 59 (“Rule 59(e) gives the court broad power to alter or amend a

judgment on motion within ten days after entry thereof.”), incorporated by V.R.F.P. 4(a)(1)

(noting that Rules of Civil Procedure apply in family law context unless “otherwise provided”).

The motion was predicated on wife’s subsequent determination that the trial court was mistaken

in asserting that the unvested military benefits could not be subject to equitable division. In

support of her conclusion, she cited Golden v. Cooper-Ellis, in which we held that stock options

that are deferred compensation for past and present performance must be considered marital

property even though vesting occurs in the future. 2007 VT 15, ¶ 20, 181 Vt. 359, 924 A.2d 19.

Wife asked the court to rescind the portion of the stipulation that waived any claim to her


       2
         Although the court signed the order on May 8, the clerk did not enter the order into the
docket until June 3, 2015.
                                              2
husband’s retirement benefits, but to keep intact all other portions of the parties’ agreement. The

trial court denied the motion. Although the court maintained its position on the merits that the

unvested military pension was not marital property subject to equitable division, it ruled that

wife was bound by her stipulation. The court stated that wife: “could have rejected the proposed

stipulation”; had an “opportunity to argue before the [c]ourt that the benefit should be included

in the property settlement”; had an attorney throughout the entire proceedings whom she could

have consulted; and could have reserved the right “to litigate or appeal the issue of the unvested

military pension.” Since wife did “none of those things,” the trial court denied the motion. Wife

appealed.

       ¶ 5.    On appeal, wife makes two arguments. First, she argues the stipulation was based

on a mutual mistake of law and therefore should be set aside. Second, she argues that her motion

to amend was timely, and therefore the trial court should have reviewed the stipulation to make

sure it was fair and equitable.

       ¶ 6.    A Rule 59 motion to alter or amend the judgment may be granted “to relieve a

party against the unjust operation of the record resulting from the mistake or inadvertence of the

court and not the fault or neglect of a party.” Rubin v. Sterling Enters., Inc., 164 Vt. 582, 588,

674 A.2d 782, 786 (1996) (citing V.R.C.P. 59(e)). Such a motion “is addressed to the sound

discretion of the trial court, and that court’s ruling is not reversible unless it constitutes a

manifest abuse of discretion.” Chelsea Ltd. P’ship v. Town of Chelsea, 142 Vt. 538, 540, 458

A.2d 1096, 1098 (1983).

       ¶ 7.    As a starting point, we have recognized that where parties enter into a binding

final stipulation, they forfeit the ability to challenge rulings of the court that preceded that

stipulation. See Willey v. Willey, 2006 VT 106, ¶ 23, 180 Vt. 421, 912 A.2d 441 (declining to

consider husband’s challenge to court’s pretrial ruling concerning effect of prenuptial agreement

where parties subsequently entered into binding stipulation resolving financial issues).

                                                 3
       ¶ 8.    Wife first contends that this general rule does not apply because the parties’

stipulation was based on a mutual mistake.

       ¶ 9.    We have recognized that divorce stipulations “may be subject to reformation on

the grounds of mutual mistake.” Blanchard v. Blanchard, 149 Vt. 534, 536, 546 A.2d 1370,

1372 (1988) (citing Ferris v. Ferris, 140 Vt. 12, 15, 433 A.2d 304, 306 (1981)). To be eligible

for reformation on the grounds of mutual mistake, the moving party must show that the

stipulation was entered into under a mutual mistake regarding a material fact, or was based on a

mutually assumed state of facts that later proved to be erroneous. Ferris, 140 Vt. at 12, 433 A.2d

at 306. Wife argues that the trial court’s in-chambers statement concerning its view of the law

established a mutual, albeit mistaken, understanding that formed a basis for the parties’

settlement discussions.

       ¶ 10.   At least in cases in which a party is represented by counsel, a legally erroneous

ruling by the trial court, whether on the record or off the record, is generally not the kind of

mistake that supports setting aside a divorce stipulation. See Varveris v. Fisher, 645 N.Y.S.2d

853, 854 (N.Y. App. Div. 1996) (noting that “a mistake as to the law is insufficient grounds for

vacating a stipulation” (quotation omitted)). Lawyers are charged with knowing the law. See

Matter of Wines, 660 P.2d 454, 457 (Ariz. 1983) (in banc) (“We charge lawyers with knowledge

of what the law requires and place them under an affirmative duty to accomplish what is required

of them.”). Assuming without deciding that the trial court was wrong on the law, wife’s remedy

was to obtain a judgment and then appeal. At a minimum, rather than entering into a stipulation

after the in-chambers conference, wife could have researched the issue before stipulating. See

Pinsburg State Bank v. Abundo, 2012 UT 94, ¶ 14, 296 P.3d 709 (noting stipulations are

generally set aside only where there is mistake “not due to failure to exercise due diligence,” and

noting that where “stipulation signed by counsel and filed with the court,” it is unlikely it was



                                                4
entered into inadvertently (quotations omitted)). For these reasons, the trial court did not abuse

its discretion in declining to set aside the parties’ stipulation.

        ¶ 11.   Alternatively, wife relies on our precedent in Pouech v. Pouech to argue that the

court was obligated to review the parties’ stipulation for fairness because she objected to it

before the trial court’s final order was docketed. See 2006 VT 40, ¶¶ 22, 23, 180 Vt. 1, 904 A.2d

70 (holding that “when parties have executed a stipulation in anticipation of divorce . . . but one

or both of the parties challenge the stipulation before the family court has held a final hearing or

incorporated the stipulation into a final divorce order,” the court must consider whether the

stipulation is fair and equitable, even if the challenging party fails to demonstrate grounds

sufficient to overturn a contract).

        ¶ 12.   Wife’s reliance on Pouech is misplaced. Pouech’s dictates are clear: if a party

objects to an executed stipulation before the final hearing or before it is incorporated into the

final order, the trial court may reject the stipulation, provided it has made “adequate findings as

to why it has chosen to reject or accept the stipulation.” Id. ¶ 22. In this case, the parties

executed the stipulation at the final hearing, and it was incorporated into a final order signed by

the court thereafter. The trial court stated at the conclusion of the hearing that “[t]he decree nisi

is final today.” The fact that the final order was not actually docketed in the superior court

record until after wife filed her Rule 59 motion, does not open the door to a post-final-hearing

challenge to the stipulation by wife. Pouech simply does not apply.

        Affirmed.

                                                  FOR THE COURT:



                                                  Associate Justice




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