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                                         2015 VT 118

                                         No. 2014-388

Connie C. Simendinger                                         Supreme Court

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

William Simendinger                                           May Term, 2015


Brian J. Grearson, J.

James W. Murdoch and Michelle A. Tarnelli of Murdoch Hughes & Twarog, Burlington, for
 Plaintiff-Appellee.

Karen Shingler, Burlington, for Defendant-Appellant.


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


        ¶ 1.   REIBER, C.J.       The estate of husband, William E. Simendinger, appeals an

injunction order by the Superior Court, Chittenden Unit, Family Division encumbering all real

property held by the estate. Husband’s estate also challenges the family court’s award of

attorney’s fees. We affirm.

        ¶ 2.   Wife Connie C. Simendinger and husband were married on May 23, 1987. They

divorced on February 3, 2014. The final order and decree of divorce incorporated a stipulation

between the parties, which provided in pertinent part:

               In full settlement of the marital estates and in lieu of alimony, the
               husband shall pay to the wife the sum of $2,250,000—$50,000
               within 30 days and the balance of $2,200,000 in one year. This
               amount shall be secured by real estate, owned solely by the
               husband, free and clear of all mortgages. Husband shall provide
               this security within 30 days.
Wife received the $50,000, but husband did not subsequently pay the $2.2 million balance or

secure the unpaid amount in real estate.

       ¶ 3.    On March 28, 2014, after the thirty-day deadline passed, wife filed a motion for

contempt and enforcement, as well as a motion for attorney’s fees.           In the motions, wife

requested that the court order husband to deliver a promissory note for the unpaid amount and

provide security for that note, and that the court enjoin husband from selling or transferring any

interest in any property owned by him. Wife also requested that the court order husband to pay

the attorney’s fees wife incurred in bringing the motions. The family court set a hearing date for

August to determine how best to proceed. The decree nisi became absolute on May 3, 2014.

       ¶ 4.    Husband unexpectedly passed away on July 14, 2014. On July 22, 2014, pursuant

to Vermont Rule of Civil Procedure 25(a), wife filed a motion to substitute husband’s estate for

husband.

       ¶ 5.    On September 5, 2014, the family court issued an order disposing of the motions

wife filed. The court denied the contempt motion but granted wife’s motions for the substitution

of husband’s estate for husband and awarded attorney’s fees. It also enjoined husband’s estate

from “disposing of or further encumbering any real estate interest held by the [e]state” that could

be used to satisfy the final order and decree until the estate either provided the required security

or otherwise satisfied the outstanding order to pay wife $2.2 million. Husband’s estate appealed.

       ¶ 6.    On appeal, husband’s estate argues that the family court abused its discretion by

(1) issuing an injunction against husband’s estate absent a hearing to show that husband had

violated a court order; (2) including certain “business properties” within the scope of the

injunction; and (3) awarding attorney’s fees to wife without first clearly establishing a factual

basis to support an award of attorney’s fees.

                                I. Availability of Injunctive Relief

       ¶ 7.    Husband’s estate first argues that the family court abused its discretion when it

issued an injunction absent evidence that husband had violated a court order.           The estate
                                            2
contends that the court should have found husband in contempt of its prior order before issuing

the injunction. “We review the trial court’s grant of an injunction under an abuse-of-discretion

standard, and will not reverse unless the findings are not supported by the evidence and the

court’s decision lacks any legal grounds to justify the result.” Evans v. Cote, 2014 VT 104, ¶ 8,

___ Vt. ___, 107 A.3d 911.

          ¶ 8.   The family court correctly determined that it could not hold deceased husband in

contempt. See Aither v. Estate of Aither, 2006 VT 111, ¶ 7, 180 Vt. 472, 913 A.2d 376

(concluding that contempt proceeding cannot provide remedy against deceased party). However,

quoting our decision in Aither, the court reasoned that it had “inherent equitable power over

matters in its jurisdiction” and could therefore grant wife’s motion for enforcement. Id. ¶ 6; see

also 4 V.S.A. § 33 (giving family court exclusive jurisdiction to hear and dispose of divorce

cases).

          ¶ 9.   “While contempt may be the family court’s most effective enforcement tool, it is

not the only tool available.” Aither 2006 VT 111, ¶ 12 (quotation omitted). In Aither, we held

that a trial court could use its equitable power to enforce an order without a showing of

contempt.1 Id. We recognized that courts should “have the power to enforce their own valid

orders to avoid unjust results.” Id. ¶ 9. Once the agreement between the wife and husband was

incorporated into a final order, the family court could use its equitable power to enforce the order

even after one of the parties died. See id. ¶¶ 6,7-9 (acknowledging that family court has

“inherent equitable power over matters in its jurisdiction” and holding that death of one party to

divorce does not remove power of courts to enforce their own valid orders).



          1
          The specific issue in Aither was whether the court could enforce a temporary order
requiring husband to make wife a beneficiary of a life-insurance policy when the underlying
divorce was abated by husband’s death before the divorce was final. That issue is not present
here; husband died after the nisi period expired and his death did not abate the final divorce
order. Nevertheless, our recognition that the family division’s inherent powers include the use of
equitable remedies to enforce its judgments also applies in the context of this post-judgment
enforcement motion.
                                                3
       ¶ 10.   The argument by husband’s estate that the family court lacked a factual basis

upon which to issue the injunction is without merit. At a June 2014 status conference, prior to

husband’s death, husband stipulated that he had not complied with the final order. Moreover,

after husband’s death, his estate effectively admitted non-compliance with the order in its

response to wife’s motions. In its response to wife’s motion to substitute parties, the estate

described how, at the time of his death, husband was still in the process of assembling a package

of “securities” that would serve as an alternative to the real property interests in securing the

amount awarded to wife in the final order. In describing husband’s ongoing efforts at the time of

his death in July 2014, husband’s estate implicitly acknowledged that husband had not yet

complied with the order to secure the remaining $2.2 million award. Given the fact that husband

had not complied with the order, the court did not abuse its discretion in enforcing the final order

by issuing the injunction.

                                    II. Scope of the Injunction

       ¶ 11.   Husband’s estate next argues that the family court’s order was overbroad because

it enjoined disposing of or encumbering all of the estate’s business interests. The estate fails to

recognize that on its face, the injunction applies only to real property “held by the estate.” The

order makes no mention of real property owned by the various corporate entities in which

husband’s estate holds an interest. Thus, absent a showing that the business properties are

actually held by husband’s estate rather than separate entities in which husband has an interest,

the injunction does not affect them.2 The required security, pursuant to the original February

2014 final order, was real property, “owned solely by the husband, free and clear of all

mortgages.” Because the family court reasoned that there was concern as to whether the final

judgment would be satisfied, it enjoined husband’s estate from “disposing of or further

       2
          The question was raised at oral argument about whether wife could pierce the corporate
veil in order to reach real property held by corporations in which husband’s estate has an interest.
Neither party addressed this issue in their brief, and no argument or evidence was submitted
below. We therefore decline to undertake a veil-piercing analysis in this case. Our decision
concerns only the real property held solely by husband’s estate.
                                                  4
encumbering any real estate interest held by [husband’s estate] that could be used to satisfy the

security required by [the final order].” We find no abuse of discretion with regard to the scope

of the injunction in this case, where the injunction does not extend further than the final order it

was meant to enforce.

                                       III. Attorney’s Fees

       ¶ 12.   Finally, husband’s estate argues that the family court abused its discretion in

awarding wife $5360.13 for the attorney’s fees incurred attempting to enforce the final order.

The estate argues that the court neither had a factual basis regarding husband’s assets to award

attorney’s fees, nor did it consider the wife’s ability to pay attorney’s fees herself. Absent an

abuse of discretion, we will affirm a trial court’s award of attorney’s fees. Willey v. Willey,

2006 VT 106, ¶ 26, 180 Vt. 421, 912 A.2d 441.

       ¶ 13.   Husband’s estate admits that attorney’s fees are generally recoverable in divorce

actions as suit money. See Turner v. Turner, 2004 VT 5 ¶ 9, 176 Vt. 588, 844 A.2d 764 (mem.).

(“Attorney’s fees are recoverable in divorce actions generally as ‘suit money.’ ” (quoting 15

V.S.A. §§ 606, 607)). Husband’s estate correctly argues that consideration should be given to

the parties’ ability to pay, Willey, 2006 VT 106, ¶ 25, but we have held that no separate hearing

is generally necessary to determine these fees because “the nature of divorce proceedings is such

that the evidence relevant to [the] determination [of attorney’s fees] will already have come out.”

Hanson-Metayer v. Hanson-Metayer, 2013 VT 29, ¶ 64, 193 Vt. 490, 70 A.3d 1036; see also Ely

v. Ely, 139 Vt. 238, 242, 427 A.2d 361, 364 (1981) (“In the usual, and vast majority of, cases

[the award of attorney’s fees] borders on judicial routine, and is supported by evidence bearing

on the circumstances of the parties generally.” (emphasis added)). Moreover, courts may award

attorney’s fees when they are in “the interests of justice and equity.” Downs v. Downs, 159 Vt.

467, 472, 621 A.2d 229, 232 (1993).

       ¶ 14.   The instant case is most similar to our recent decision in Willey, 2006 VT 106.

There, the family court awarded attorney’s fees to wife for the cost incurred trying to enforce a
                                               5
prior divorce settlement agreement with her husband. Because the court had heard evidence

concerning husband’s business and non business assets, as well as husband and wife’s general

financial dispositions, we found no abuse of discretion in the awarding of attorney’s fees. Id.

¶ 27. Furthermore, we noted that when awarding attorney’s fees, the question for the court is not

one of bare ability to pay, but an “equitable one” where “the family court has discretion to award

attorney’s fees even to a party who has received an award in the underlying action sufficient to

pay the fees.” Id. ¶ 26.

       ¶ 15.   Similarly, in the present case, wife incurred attorney’s fees while trying to enforce

the family court’s prior order against non-compliant husband. In support of her claim for

attorney’s fees incurred seeking enforcement of the final order, wife submitted an affidavit from

her attorney describing the amount she was billed each month. This affidavit was supported by

monthly billing statements and an expert opinion as to reasonableness of the rate charged. The

court also had a general understanding of both parties’ financial conditions from evidence

presented in the original divorce proceeding and from evidence introduced into the record prior

to the final order, including evidence of husband’s business and non business assets, husband’s

monthly child support payments of $3000, and husband’s receipt of income at the time of his

death. These facts support the award of attorney’s fees, and we find no abuse of discretion.

       Affirmed.

                                               FOR THE COURT:



                                               Chief Justice




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