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@vermont.gov 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.


                                          2016 VT 57

                                         No. 2015-070

Walter Lourie                                                 Supreme Court

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

Sharlee Lourie                                                October Term, 2015


Dennis R. Pearson, J.

William B. Miller, Jr. and Erin Miller Heins of Langrock Sperry & Wool, LLP, Middlebury, for
 Plaintiff-Appellant.

Brice C. Simon of Breton & Simon, PLC, Stowe, for Defendant-Appellee.


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


        ¶ 1.     EATON, J. Husband appeals from a final divorce order, arguing that the family

division of the superior court: (1) failed to consider the relevant statutory factors before

incorporating the parties’ pretrial separation agreement into the divorce order; (2) erroneously

awarded wife an arrears judgment based on their agreement even though the agreement had not

been submitted to the court or incorporated into a temporary order prior to the final divorce

hearing; and (3) abused its discretion by awarding wife the bulk of the marital estate in addition

to a substantial maintenance award. We reverse and remand.

        ¶ 2.     The relevant facts are not in dispute. The parties married in Alaska in 1992 and

moved to Vermont in 1996. They have two children, one of whom had reached the age of
majority before the final divorce hearing was held. The younger child, born in March 1997, was

a couple of months shy of her eighteenth birthday at the time of the hearing. During most of the

marriage, the parties ran what evolved into a flooring business.

        ¶ 3.    The parties separated in February 2012, after which husband lived and worked

first in New York and then later in Washington, D.C. Husband filed for divorce in March 2013.

Two months later, in May 2013, the parties executed a written agreement that dealt with spousal

and child support, as well as business debts. Husband agreed to pay wife $4000 in monthly

support for a five-year period after husband had paid off all personal and business debt.1 The

agreement stated that the parties “will be giving a copy of this Divorce agreement to use and

make final divorce agreement for divorce court hearing.” For six months following the parties’

execution of the agreement, husband paid wife $4000 per month, but then reduced his payments

to $943 per month, which he continued to pay through the final divorce hearing. Neither party

submitted the agreement to the family court until the final divorce hearing, which was held in

November 2014. Thus, the agreement was never incorporated into a temporary support order.

        ¶ 4.    By the time of the final hearing, the parties had agreed on parental rights and

responsibilities.   The primary issue in dispute at the contested hearing was how much

maintenance husband would be required to pay wife. Wife asked the family court to enforce the

parties’ agreement in anticipation of divorce—in particular the provision requiring husband to

pay wife $4000 per month in support. At the outset of the hearing, however, her attorney

conceded that “even if the Court finds this was an agreement, the Court still has to make an

equitable division.” Accordingly, the attorney stated that “although we’d like the Court to


        1
           The family court found that although there was insufficient evidence to determine
exactly what debt the parties were referring to or whether that debt had actually been paid off,
husband in fact began paying wife $4000 in support immediately after execution of the
agreement, and wife accepted those payments. Accordingly, the court concluded “that the
parties’ own understanding, and intent[,] was that the 5-year payment period began as of May
2013.” Neither party has challenged this conclusion on appeal.
                                                2
enforce the agreement, we recognize the need for the Court to hear evidence to make an

equitable distribution.” For his part, husband did not object to paying maintenance, but stated

that he could not afford to pay the amount wife was seeking—the $4000 per month provided for

in the parties’ agreement.

       ¶ 5.    Following the hearing, the family court: (1) granted the parties a divorce;

(2) awarded the marital homestead, which had zero or negative equity, to wife; (3) awarded each

party personal property in their possession; (4) required husband to pay off jointly held credit

cards; (5) ordered husband to execute any documents necessary to transfer shares in their

business to wife; (6) ordered husband to transfer to wife two life insurance policies with a then-

current cash value of $23,539; and (7) awarded wife maintenance in the amount of $4000 per

month for a five-year period—from May 2013 until April 2018—per the parties’ agreement.

The court explicitly stated that it was incorporating the parties’ separation agreement into the

final order. The court also awarded wife, based on the agreement, an arrears judgment in the

amount of $45,855.

       ¶ 6.     Husband appeals from the final divorce order, arguing that the family court

abused its discretion by: (1) incorporating the parties’ separation agreement into the final divorce

order without considering the relevant statutory factors; (2) awarding wife an arrears judgment

based on the agreement even though wife had not submitted the agreement to the court or sought

its incorporation into a court order until the final divorce hearing; and (3) awarding wife the bulk

of the marital estate in addition to the substantial maintenance award.

       ¶ 7.    The principal issue briefed by the parties is whether the family court erred by

incorporating the parties’ separation agreement into the final divorce order without examining

the relevant statutory factors. Husband contends that the court abused its discretion by adopting

the agreement without considering its fairness in light of the statutory factors contained in 15

V.S.A. § 752 for awarding maintenance. According to husband, the family court’s express

                                                 3
decision not to conduct a statutory analysis resulted in the court failing to consider his inability to

pay the maintenance obligation contained in the separation agreement.

       ¶ 8.    In making this argument, husband relies primarily on our decision in Pouech v.

Pouech, 2006 VT 40, 180 Vt. 1, 904 A.2d 70. In that case, the wife appealed the family court’s

refusal to allow her to amend her divorce complaint to seek maintenance. Along with her

complaint, the wife had filed a separation agreement that the parties had negotiated in

anticipation of divorce. The agreement was silent with respect to maintenance. The family court

refused to allow wife to seek maintenance over and above the terms of the agreement, and

instead incorporated the agreement into the final order, without any maintenance award. Among

other things, the wife argued on appeal to this Court that the family court was obligated to

determine whether the parties’ agreement was fair and equitable before incorporating it into its

final divorce order.

       ¶ 9.    We concluded that under the circumstances of that case—where wife challenged

the agreement before the family court held a final divorce hearing or incorporated it into the final

divorce order—the court erred by refusing to consider the wife’s maintenance request based

solely on her failure to establish grounds sufficient to overturn a contract. Id. ¶ 19. We stated

that “the court should have given the parties an opportunity to present evidence on the fairness of

their stipulation,” after which “the court had the discretion to reject the stipulation on grounds

that it was inequitable in light of the relevant statutory factors.” Id. We explained that when one

or both parties object to a separation agreement before the agreement has been incorporated into

a final divorce order, “policy considerations that favor deference to the parties’ ‘voluntary’

agreement are less forceful.” Id. ¶ 21. We further explained that while “[p]ublic policy favors

parties settling their own disputes in a divorce, . . . the family court has a statutorily authorized

role to play in divorce proceedings to assure a fair and equitable dissolution of the state-

sanctioned institution of marriage.” Id. ¶ 24.

                                                  4
        ¶ 10.   Accordingly, we held that when parties have executed a separation agreement

regarding maintenance or the division of marital property, “but one or both of the parties

challenge the [agreement] before the family court has held a final hearing or incorporated the

[agreement] into a final divorce order, the court may reject the stipulation even if the challenging

party fails to demonstrate grounds sufficient to overturn a contract.” Id. ¶ 22. In so holding, we

emphasized that “the question is one of fairness and equity viewed from the perspective of the

standards and factors set forth in our divorce statutes,” id. ¶ 23, and that “it is imperative that the

court provide adequate findings as to why it has chosen to reject or accept the stipulation,”

id. ¶ 22.

        ¶ 11.   Here, the family court found that “subsequent events and [husband’s] current

financial circumstances have made it difficult, if not impossible, for [husband] to currently

comply with that $4000 per month obligation, but the agreement appears to have been mutually

arrived at and was fair, reasonable and appropriate at the time” it was executed. The court then

concluded that the agreement “is valid and enforceable, and at the time was entirely reasonable

and appropriate with regard to the agreed-on payment of $4000 a month.” The court stated that

it would “not perform a separate or independent analysis under 15 V.S.A. § 752, and [would] not

specifically consider the respective factors,” but noted that a review of those factors “would

certainly point to the same result, i.e. [wife] should be awarded at least some period of at least

temporary, rehabilitative spousal maintenance, in a substantial amount given her lack of regular

employability and lack of dependable current income.”            According to the court, the “real

dispute” was over husband’s current apparent inability to pay the stipulated amount, which it

suggested was an enforcement issue.

        ¶ 12.   We agree with husband that the family court failed to exercise its discretion to

determine whether the parties’ agreement was fair and equitable and thus should be incorporated



                                                  5
into the final divorce order. 2 To be sure, the court determined that the support provision in the

agreement was fair and equitable “at the time” the parties’ executed the agreement.

Nevertheless, the court was obligated to consider whether the agreement was fair and equitable

pursuant to the relevant statutory factors at the time of the final hearing, such that it could be

incorporated into the final divorce order. Moreover, we are unmoved by the court’s statement

that those statutory factors would point to the same result. First, the court explicitly stated that it

was not doing an independent analysis under the statute or considering the statutory factors.

Second, the court defined “the same result” as wife receiving a substantial amount of at least

temporary rehabilitative maintenance. That does not necessarily translate to $4000 per month.

Third, as noted, the court stated at one point that husband’s financial circumstances made it

difficult if not impossible for him to comply with the agreement.

       ¶ 13.   Accordingly, we remand the matter to the family court to make a determination

based on the relevant statutory factors as to whether the parties’ agreement should be

incorporated into the final divorce order. We recognize that husband’s financial circumstances

were clouded by his various business enterprises and the lack of hard evidence concerning his

income from those businesses due in part to his commingling personal and business expenses.

Nonetheless, in determining an appropriate maintenance award going forward from the date of

the final divorce hearing—and, concomitantly, whether to incorporate the parties’ agreement into

the final divorce order—the family court must consider on remand whether the agreement was

fair and equitable in light of the relevant statutory factors and the parties’ circumstances at the

time of that hearing.



       2
          As noted, wife’s attorney acknowledged at the final divorce hearing that before
adopting the parties’ separation agreement the family court was obligated to consider whether
the agreement was fair and equitable with respect to establishing a court-ordered maintenance
award.

                                                  6
       ¶ 14.   Another aspect of this case that must be dealt with on remand is the fact that the

parties’ agreement identified child support as part of the total monthly amount husband was to

pay wife. The parties’ youngest child was two months shy of her eighteenth birthday at the time

of the court’s final order, and had not yet graduated from secondary school. “Parents do not

control the initial child-support order in divorce cases” and they cannot waive their children’s

right to child support by their action or inaction. Bergman v. Marker, 2007 VT 139, ¶¶ 13, 18,

183 Vt. 68, 944 A.2d 265. Child support is money for the benefit of the parties’ children and

cannot be bargained away subject only to the parents’ interests. See White v. White, 141 Vt.

499, 503, 450 A.2d 1108, 1110 (1982) (stating that parents cannot “withdraw the interests of

[their] children, who are not parties to [the] contract, from the continuing jurisdiction of the

court”). Thus, “the family court was required to include a child-support order as part of the

adjudication of the divorce proceeding.” Bergman, ¶ 18. Accordingly, on remand, the court

must separate any spousal maintenance award (prospective from the final order) from husband’s

prospective child support obligation. Any child support order may be made retroactive to March

21, 2013, the date of the divorce petition.      Id. ¶¶ 21, 23 (holding “that an order initially

establishing child support in a divorce case may be retroactive to the date that the divorce

petition is filed” and emphasizing that “early retroactivity date merely establishes the outer limit

on the discretion of the court”).

       ¶ 15.   Husband also challenges the family court’s lump-sum arrears award of $45,855.

He argues that there was no equitable or statutory basis for obtaining a judgment for arrears

arising from an agreement that had not been incorporated into a temporary order under 15 V.S.A.

§ 594a, which provides that divorcing parties “may apply for temporary relief” following the

filing of a complaint for divorce. Wife responds that, as the family court found, the parties

intended the agreement to be binding and enforceable upon execution, and that the agreement

itself provided that the parties would submit a copy to the court to make a “final divorce

                                                 7
agreement” at a “final divorce hearing.” Wife states that the very purpose of the agreement was

to avoid litigating temporary maintenance, and that allowing husband to avoid temporary

maintenance on this basis would frustrate the policy of encouraging parties to reach agreements

regarding maintenance during the pendency of a divorce.

       ¶ 16.   We conclude that, although Pouech did not concern arrears, the principles

expressed therein apply with equal force to obligations purportedly incurred under a separation

agreement before the agreement was submitted to the family court for consideration. As noted,

we concluded in Pouech that “policy considerations that favor deference to the parties’

‘voluntary’ agreement [in anticipation of divorce] are less forceful” before the agreement has

been presented to the court to determine if it is fair and equitable under the circumstances of the

marriage. 2006 VT 40, ¶ 21. This is so because when couples enter into an agreement in

anticipation of divorce during the throes of what is often an emotional or volatile breakup, “the

family court has a statutorily authorized role to play in divorce proceedings to assure a fair and

equitable dissolution of the state-sanctioned institution of marriage.” Id. ¶ 24 (recognizing “the

simple truth that an agreement in anticipation of divorce is not the same as an ordinary

contract”). Nothing in our decision in Pouech suggests a lesser scrutiny of agreements in

anticipation of divorce with respect to obligations accrued under such an agreement before the

court has had an opportunity to consider the agreement in the context of divorce proceedings. In

short, the family court may not enforce an agreement made in anticipation of divorce—

prospectively or retroactively—without first making an independent assessment of the fairness of

the agreement under the relevant statutory criteria. To hold otherwise could lead to a result

where a party was found to be in arrears on a past-due obligation under an agreement between

the parties while at the same time the court refused to incorporate that obligation into a final

order because it lacked fairness.



                                                8
       ¶ 17.   Hence, in a situation such as this,3 where the parties entered into an agreement in

anticipation of divorce, the family court is not precluded from considering obligations that

accrued under the agreement before it was submitted to the court, and then adjusting its

maintenance and property awards accordingly. The court must consider whether there was an

agreement that met the requirements of a contract and whether that agreement was fair and

equitable in light of the statutory criteria from the time it was made until the time of the final

hearing. If those criteria are satisfied, the parties’ agreement and its prospective obligations

essentially created a debt from one spouse to the other, and, if unpaid, the court may make

adjustments to the maintenance and property awards based on the agreement. See Allen v.

Allen, 161 Vt. 526, 534, 641 A.2d 1332, 1337 (1994) (Dooley, J., concurring and dissenting)

(“Assuming its validity, the debt owed by husband to wife is a form of property subject to

distribution in the divorce proceeding.”); id. at 537, 641 A.2d at 1138 (Morse, J., concurring and

dissenting) (“[T]he family court has the authority to determine the enforceability of contracts

between divorcing parties as part of the property settlement.”).

       ¶ 18.   Where the court independently concludes that an agreement was fair and

equitable with respect to the period in question, and that one party’s failure to honor the

agreement undermined the financial position of the other party, the court can consider those facts

in determining prospective spousal maintenance, 15 V.S.A. § 752(b) (allowing court to consider

nonexclusive list of relevant factors, including financial resources of both parties), or in making

       3
          The instant agreement provided for maintenance from the time of the agreement for a
fixed period, which, as explained above, requires the family court to determine not only whether
the agreement was fair and equitable with respect to any amounts owed at the time of the final
hearing, but also to determine the fairness and equitability of the agreement with respect to the
court’s maintenance order going forward, as required by Pouech. Parties, of course, could also
make an agreement that provided for maintenance only up until the final divorce hearing, which
would require the court to consider the fairness of the agreement when it was made and deal with
any unpaid debt accordingly in its maintenance award or property division. Or parties could
agree only to maintenance going forward from the final hearing, which would require the court
to determine whether the agreement was fair and equitable and thus could be incorporated into
the court’s final divorce order.
                                                 9
an equitable division of the parties’ marital property. In dividing marital property and debt, the

family court is empowered to consider several nonexclusive factors relating to, among other

things, the financial circumstances and the respective merits of the parties. Id. § 751(b). Hence,

a court is also free to consider the financial detriment to one party and advantage to the other

resulting from one party’s failure to honor an agreement that the court concludes was reasonable

and fair throughout the temporary period.

       ¶ 19.   The family court in this case found that the parties entered into an enforceable

agreement that was “entirely reasonable” at the time it was executed, but also found that husband

had no current ability to pay wife $4000 per month as required under the agreement. Hence, the

arrears judgment must be vacated and the matter remanded for the court to determine the point at

which the agreement became unfair or inequitable, calculate the debt owed to wife based on that

determination, and factor that sum into its maintenance and/or property awards. Moreover, per

our discussion above, in calculating arrears, the court must determine what part of husband’s

monthly obligation through this period, if any, should be designated as child support, given that

the parties’ agreement was executed after husband filed a divorce petition.

       ¶ 20.   Husband also seeks review of the court’s property award. As the trial court

pointed out, there was very little property to divide, and husband challenged only that aspect of

the parties’ agreement establishing the monthly support award. Neither has husband appealed

incorporation of the parties’ agreement with respect to the property distribution. Further, as the

trial court found, there was either no or negative equity in the marital home, which was awarded

to wife, and husband agreed to waive any interest in the home. The court also noted that the

parties had already divided items of personal property prior to the final divorce hearing. The

only property of any real value appears to be the $23,500 cash value of two life insurance

policies. We reverse the property award because of our determination that the court has the



                                               10
option of adjusting the award based on its arrears determination, but we recognize that the court

is limited in how it can amend the award, given the dearth of property owned by the parties.

       ¶ 21.   Because we are reversing and remanding both the maintenance award and the

property award for reconsideration in light of this opinion, we need not consider husband’s brief

argument that the property award was unfair when added to the maintenance award.4 The court

need not hold a new evidentiary hearing but may do so if it determines, given this Court’s

opinion, that the parties should have an opportunity to present additional evidence on their

complicated financial circumstances leading up to the final divorce hearing.

       The superior court’s decree of divorce is affirmed; however, its maintenance award,
property division, and judgment of arrears are reversed and the matter is remanded for further
consideration in light of this opinion.


                                              FOR THE COURT:



                                              Associate Justice




       4
           Husband argues that the property award must be reversed in any event because the
maintenance award must be reversed. See Semprebon v. Semprebon, 157 Vt. 209, 216, 596
A.2d 361, 365 (1991) (“Because we are remanding for the court to consider a maintenance
award, we will also reopen the property award because of the interrelationship of these two parts
of the financial order.”). Because we are reversing both the maintenance and property awards,
we need not address this argument. We point out, however, that the reversal of one award is not
necessarily automatic when the other is reversed. See DeGrace v. DeGrace, 147 Vt. 466, 470,
520 A.2d 987, 990 (1986) (stating that under circumstances where it “cannot be determined
whether vacating the maintenance award will affect the property settlement” because nothing in
the record “indicate[s] how the maintenance award bears upon the property division,” the
property division also must be vacated). In circumstances where reversal of one award could not
possibly have any impact on the other award—for example, where the reviewing court upholds
the award of all of the marital property to the recipient spouse but concludes that the
maintenance award to that spouse was insufficient—reversal of the property award may not
necessarily follow.
                                                11
