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




                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-480

                                          MAY TERM, 2015

 Alice Ann O'Brien                                     }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Bennington Unit,
    v.                                                 }    Family Division
                                                       }
                                                       }
 William Henkel                                        }    DOCKET NO. 295-10-03 Bndm

                                                            Trial Judge: William D. Cohen

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

        Plaintiff ex-wife appeals orders of the superior court, family division denying her motion
for contempt and her request for attorney’s fees in this post-judgment divorce action. We affirm.

        Following a long-term marriage, the parties were divorced in January 19, 2005. One
provision of the final divorce order required defendant ex-husband to pay plaintiff one-half of
distributions from a deferred-compensation plan. The provision also required defendant to
provide plaintiff with copies of all distribution documents and related 1099 forms, and to name
plaintiff as the irrevocable beneficiary to one-half of the plan. The provision stated that
distributions from the plan given to plaintiff would be considered spousal maintenance for
income tax purposes, but could not be modified. The final order required defendant to pay wife
maintenance in the amount of a specified percentage of earnings above a specified monthly
income should he elect to return to work, but that his maintenance obligation would cease when
he reached seventy-two years of age.

        A lengthy history of post-judgment litigation ensued in the fall of 2010 when plaintiff
filed a motion to enforce provisions of the final divorce order. In May 2012, the superior court
ordered defendant to pay plaintiff nearly $60,000 in maintenance payments owed through 2010,
plus $35,000 in interest. The court also ordered defendant to provide plaintiff with all
documentation required under the 2005 final order. In November 2012, plaintiff filed renewed
motions for enforcement and contempt. On March 13, 2013, following a hearing held in
December 2012, the family division issued a decision that denied plaintiff’s motions in part and
granted them in part. The court found defendant in contempt for not giving plaintiff 2011
distributions in a timely manner and for not providing plaintiff with documentation as ordered by
the court. The court directed defendant to: (1) pay plaintiff any remaining amount due from the
2011 deferred-compensation distributions; (2) pay plaintiff any remaining amount due for the
2012 deferred-compensation distributions; (3) provide plaintiff with written documentation of his
deferred-compensation distributions for 2011 and 2012; (4) provide plaintiff with full
documentation of his federal tax returns and schedules for 2011 and 2012; (5) provide plaintiff
with proof that she had been made a 50% irrevocable beneficiary of his deferred-compensation
plan; (6) pay plaintiff $4000 in attorney’s fees; (7) pay plaintiff her share of the 2013 deferred-
compensation distributions within ten days of receiving them; (8) provide plaintiff with copies of
statements from a college savings fund set up under § 529 of the Internal Revenue Code for their
daughter; and (9) comply with all provisions of the final divorce order and subsequent orders as
to providing documentation.

        In June 2014, plaintiff filed another motion for contempt and attached an affidavit
detailing the ways in which defendant had failed to comply with each of the nine directives in the
family division’s March 13, 2013 order. Pursuant to the court’s order, defendant filed a verified
answer, which included documentation of his compliance with each of those nine directives. On
October 29, 2014, the family division held a non-evidentiary hearing in which the attorneys
presented oral argument and the court asked questions of both parties, who were not sworn in to
testify. At the hearing, defendant stated that he had not paid distributions to plaintiff following
his seventy-second birthday because the final order stated that those distributions were to be
treated as maintenance for tax purposes, and his maintenance obligation terminated under the
order on his seventy-second birthday in June 2013. In a brief decision on a motion-reaction form
filed on November 19, 2014, the family division ruled that defendant still had an obligation to
pay plaintiff distributions from the deferred-compensation plan, even though those distributions
had been treated as maintenance for tax purposes and his maintenance obligation had ceased.
That same day, defendant filed a motion for a protective order. On December 17, 2014, the court
denied that motion in a motion-reaction form, noting that it had denied plaintiff’s motion for
contempt and request for attorney’s fees on the record at the October 29, 2014 hearing.

       Plaintiff appeals from these orders, arguing that the family division erred by not ruling on
the multiple violations of the March 13, 2013 order that she enumerated in her affidavit attached
to her motion for contempt. Plaintiff asserts that the principal concern she voiced at the hearing
was her need to obtain information concerning defendant’s finances but that the court did not
address this concern. Plaintiff contends that the court erred by not hearing the entirety of the
evidence and not fully addressing her allegations of defendant’s noncompliance with the March
13, 2013 order. She asks this Court to modify the family division’s ruling by finding defendant
in contempt, sanctioning him, and directing him to comply completely with the March 13, 2013
order. She also seeks attorney’s fees incurred in bringing her motion for contempt.

        We find these arguments unavailing. Plaintiff’s attorney initially stated at the October 29
hearing that plaintiff was prepared to give testimony to explain the bases of her motion.
Defendant’s attorney insisted that defendant had complied with each of the directives from the
March 13, 2013 order, as set forth in his detailed response to plaintiff’s motion for contempt.
Plaintiff’s attorney responded that the documentation his client had received was incomplete and
suggested that defendant may have transferred some of the funds from the deferred-
compensation plan to prevent plaintiff from receiving them. At one point plaintiff interjected


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that she wanted to know what marital assets defendant had withheld at the time of the divorce.
The court stated that it was not going back to the divorce, but instead would focus only on the
deferred-compensation provision in the 2005 final order and the directives in the March 13, 2013
order.

        Toward the conclusion of the two-hour hearing, the court stated that it would issue a short
entry order just to make clear that defendant still had an obligation to give wife one-half of any
deferred-compensation distributions, notwithstanding that he had reached his seventy-second
birthday. The court indicated that it was not going to issue a contempt order and that the only
provision requiring compliance was the one in the final divorce order directing defendant to give
plaintiff one-half of the distributions from his deferred-compensation plan. Plaintiff’s attorney
then requested that plaintiff be awarded attorney’s fees. The court responded that it was going to
deny that request, stating that the provision in question was not entirely clear. At the conclusion
of the hearing, plaintiff’s attorney asked the court “prior to issuing its entry order [to] revisit the
respective memoranda that were written by both sides,” insofar as the parties did not have an
opportunity to discuss all of the directives from the March 13, 2013 order. The attorney asserted
that plaintiff’s arguments supported a finding of contempt, or alternatively, a finding that
plaintiff was entitled to recover her attorney’s fees for seeking contempt. The court responded:
“Fair enough.”

         Thus, we have a situation in which both parties, including plaintiff, acquiesced through
their attorneys in a procedure by which the court would consider plaintiff’s motion for contempt
based solely on the parties’ written submissions and oral arguments at the nonevidentiary
hearing. The court indicated at the hearing that it was going to deny the motion for contempt and
plaintiff’s request for attorney’s fees because the critical deferred-compensation provision in the
final divorce order was not entirely clear. The court also stated that plaintiff’s concerns about
obtaining information regarding any distributions from defendant’s deferred-compensation plan
could be alleviated by obtaining defendant’s complete tax returns. On appeal, plaintiff asks this
Court to reverse the family division’s denial of her motion for contempt, to sanction defendant,
and to direct the family division to order defendant to comply with the directives in the March
13, 2013 order. Plaintiff does not, however, specify which directives in the March 13, 2013
order have not been followed or explain how defendant’s detailed written responses to her
motion were insufficient. Plaintiff complains that the court did not respond to her motion for
contempt in its entirety, but at the hearing, the court indicated what it was going to do, and
plaintiff acquiesced in this procedure, while asking the court to reconsider its oral rulings after
revisiting the parties’ memoranda. Ultimately, the court did exactly what it indicated it was
going to do at the hearing after presumably reviewing the parties’ memoranda. Under these
circumstances, we discern no basis for overturning the family division’s denial of plaintiff’s
motion for contempt or its refusal to assess attorney’s fees. See Vt. Women’s Health Ctr. v.
Operation Rescue, 159 Vt. 141, 147 (1992) (stating that complainant has “burden to prove the
elements of civil contempt by clear and convincing evidence” and that “we will not disturb [the
trial court’s] judgment unless the court’s discretion was entirely withheld or was exercised on
grounds clearly untenable” (quotation omitted)); see also In re Ferrera & Fenn Gravel Pit, 2013



                                                  3
VT 97, ¶ 8, 195 Vt. 138 (stating that it is appellant’s burden to demonstrate how trial court erred
warranting reversal).

       Affirmed.

                                                BY THE COURT:


                                                _______________________________________
                                                Paul L. Reiber, Chief Justice

                                                _______________________________________
                                                John A. Dooley, Associate Justice

                                                _______________________________________
                                                Marilyn S. Skoglund, Associate Justice




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