2014 VT 58


Richard v. Richard (2013-449)
 
2014 VT 58
 
[Filed 06-Jun-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 58

 

No. 2013-449

 

Ellen Richard


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Caledonia Unit,


 


Family Division


 


 


Gilles Richard


March Term, 2014


 


 


 


 


Robert
  P. Gerety, Jr., J.


 

Jared H. Cloutier
of Law Office of William P. Neylon, St. Johnsbury, for Plaintiff-Appellee.
 
Kyle C. Sipples
of Zuccaro, Willis & Sipples,
P.C., St. Johnsbury, for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Robinson and Crawford, JJ.
 
 
¶ 1.            
ROBINSON, J.   Husband Gilles Richard appeals from a
family court order awarding wife Ellen Richard interest on a payment due under
the final divorce decree.  Husband argues that the award of interest is an
impermissible modification of the final decree.  We affirm.
¶ 2.            
The parties were married for twenty-six years and divorced pursuant to a
final divorce decree issued in December 2012.  The unappealed
judgment became final by operation of law on January 30, 2013.  The final
decree ordered husband to pay wife the sum of $11,500 pursuant to the following
terms:
[Husband]
shall pay [wife] the sum of $11,500 cash on or before February 28, 2013. 
If necessary, [husband] shall take all steps necessary to borrow the necessary funds
to make timely full payment in cash to [wife] or he shall timely take all steps
necessary to take an early withdrawal from his retirement account or convey an
interest in his retirement account equal to $11,500.00 valued as of the day of
transfer to [wife] at his sole option.  In the event [husband]
chooses to utilize his retirement funds to acquire the cash necessary to make
the required payment to [wife], the amount of the payment may be reduced by one
half of any tax penalty assessed against [husband] for early withdrawal. 
In all other respects the full amount of the costs and charges incurred by
[wife] in connection with efforts to obtain the needed funds including attorney
fees, interest charges, charges for preparation of [QDRO] if needed, loan application
fees, etc., shall be born[e] solely by [husband].  
 
On February 25, 2013, husband
began the process of preparing a qualified domestic relations order (QDRO) to
transfer a portion of his retirement account to satisfy the final decree’s
requirement.  That process was not complete by February 28.  
¶ 3.            
On March 1, 2013, four days after husband was supposed to transfer the
payment in cash or by QDRO, wife filed a motion for contempt and to enforce the
final decree.  Husband opposed wife’s motion, arguing that he timely
initiated the transfer process by QDRO and that the final decree required him
only to start the process, not actually transfer the funds by February
28.  The decree cannot be interpreted, husband argued, to impose a February
28 deadline on transfer by QDRO because it can take anywhere from sixty to 120
days from the date a QDRO is first requested to the actual transfer of funds.
¶ 4.            
On April 9, 2013, the trial court entered an order on wife’s motion
indicating that a status conference would be scheduled to review the progress
of husband’s compliance with the final decree.  The order further stated
“Plaintiff is entitled to legal interest starting February 28, 2013 on the
amount due on that date.”
¶ 5.            
The QDRO was not completed and approved until April 15, 2013 and the
funds were not transferred to wife until June 7.  On June 18, the trial
court issued an order on wife’s motion for contempt and to enforce.  The
trial court denied wife’s motion for contempt, stating that there was no
evidence that husband’s failure to comply with the final decree was
willful.  The court treated the motion to enforce as a motion for
clarification of the pertinent provision of the final decree and added the
following sentence to the final decree:  “In the event payment is delayed
for any reason the Defendant shall pay interest at the legal rate from February
28, 2013 until the date that the required funds are delivered by Defendant to
Plaintiff.”  On that basis, the trial court ordered husband to pay $373.30
interest for the lapse of time between February 28, when husband’s transfer to
wife was due, and June 7, when the transfer of funds actually took place. 
¶ 6.            
Husband filed a motion for reconsideration and stay, arguing that the
court lacked authority to modify the final decree by requiring payment of
interest.  The court denied husband’s motion, and husband appealed the
$373.30 award of interest.
¶ 7.            
On appeal, husband argues that while the trial court claimed it was
clarifying the final divorce decree, it actually modified the order by
fundamentally changing its terms.  The court, husband argues, lacks
authority—except in some limited circumstances not applicable here—to modify
property distribution in a final divorce decree.  Wife argues that the
trial court has broad discretion when disposing of marital property in a final
divorce decree, which also extends to subsequent enforcement of a decree. 
The court’s authority to award interest is a matter of law we review de
novo.  Office of Child Support ex rel. Lewis v. Lewis, 2004 VT 127,
¶ 6, 178 Vt. 204, 882 A.2d 1128.
¶ 8.            
The framing of this case as one involving a court’s power to alter the terms
of a property division order after the fact misses the mark.  Generally,
the Vermont Rules of Civil Procedure apply to family court judgments in actions
for divorce.  See 15 V.S.A. § 554(b) (stating that a divorce decree
is a civil judgment under the civil rules); V.R.F.P. 4(a)(1)
(“The Rules of Civil Procedure shall apply to actions for
divorce . . . except as otherwise provided in [Rule
4].”).  The civil rules provide for interest on judgments.  V.R.C.P. 69.  As the Reporters Notes to V.R.C.P. 69 explain,
Vermont law “has allowed interest after judgment at the statutory rate to
compensate a judgment creditor for any delay in satisfaction.”  Reporter’s
Notes—1981 Amendment, V.R.C.P. 69; see also Brault
v. Flynn, 166 Vt. 585, 587, 690 A.2d 1365, 1367 (1996) (mem.)
(“It is well established in Vermont that a party may recover postjudgment interest.” (quotation
omitted)).
¶ 9.            
Pursuant to the final divorce judgment, husband had a fixed obligation
to pay wife $11,500 in cash or through QDRO on February 28, and any delay in
payment was subject to interest by operation of law.  The trial court’s
approach to ordering the statutorily due interest in this case was admittedly
confusing—the court purported to add a “clarifying” provision to the final divorce
decree, but the clarifying language was nothing more than a statement of the
law that applies to post-judgment interest even without the “addition” to the
decree.  The trial court did not substantively modify its final property
division after the fact; the language it purported to add to the final order
was entirely redundant.
¶ 10.        
For that reason, we need not address husband’s argument that a final
divorce decree’s disposition of property is final and not subject to
modification, except in certain limited circumstances.  See,
e.g., Viskup v. Viskup,
149 Vt. 89, 90, 539 A.2d 554, 555-56 (1987).  The trial court’s
ruling was not a substantive modification at all; the final order had the exact
same implications for husband’s obligation to pay, the timing of that
obligation, and his liability for interest after the trial court’s order as
before.  To the extent that husband argues that the absence of any
reference to interest in the final divorce decree reflects “an implied ruling
that no interest would accrue prior to transfer,” regardless of husband’s delay
in making that transfer, the argument is squarely at odds with well-established
law providing for post-judgment interest on fixed obligations.
¶ 11.        
Further, the court did not err in awarding interest beginning February
28, 2013.  The final decree unambiguously established February 28 as the
deadline for payment of $11,500, whether in cash or by QDRO.  Immediately
following the statement setting the February 28 deadline, the provision required
that husband “timely take all steps necessary” to make an early withdrawal from
his retirement account or convey an interest in that account.  The
provision required that husband take all necessary steps to transfer the
funds and the timeliness of those steps refers to the February 28
deadline.  The provision unambiguously required full payment, however
obtained, by February 28. 
Affirmed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 

