2014 VT 83


Tschaikowski v. Tschaikowski
(2013-216)
 
2014 VT 83
 
[Filed 01-Aug-2013]
 
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 83

 

No. 2013-216

 

Leslie Tschaikowsky 


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Rutland Unit,


 


Family Division


 


 


James Tschaikowsky


December Term, 2013


 


 


 


 


Nancy
  Corsones, J.


 

Peter F. Langrock of Langrock Sperry &
Wool, LLP, Middlebury, for Plaintiff-Appellee.
 
Pamela Gatos of Tepper Dardeck Levins
& Gatos, LLP, Rutland, for Defendant-Appellant.
 
 
PRESENT:    Reiber, C.J., Dooley, Skoglund and
Crawford, JJ., and Morris, Supr. J. (Ret.),
                    
Specially Assigned
 
 
¶ 1.            
SKOGLUND, J.   James and Leslie Tschaikowsky were
married in 1999, and are now in the process of divorcing.  In between, the
parties legally separated, agreeing on terms of separation that were formally incorporated into a final order issued by the family court
on October 12, 2007.  This appeal follows husband James’s request that the
family court enforce the terms of the separation agreement in the divorce
proceedings through summary judgment, which the court denied.  We agree
with husband that the agreement is binding and enforceable as a matter of law,
and reverse the family court’s denial of summary judgment. 
¶ 2.            
Having lived separately for the requisite six-month period, the parties
filed for separation in the fall of 2007.  Both represented by counsel,
the parties waived their rights to a hearing and requested that the family
court incorporate the agreement into a final order of separation pursuant to
Vermont Rule of Family Proceedings 4(e), and the court complied.  The
agreement addressed the terms of their separation, including parental rights and
responsibilities, support, and education for their two minor children, as well
as “the final settlement of their property rights.”  Containing clauses
for both real and personal property, the agreement divided the property owned
by the parties at the time.  The agreement also included a provision
entitled “Subsequent Divorce,” which stated that: 
In
the event any such [divorce] action is instituted, the parties shall be bound
by all the terms of this agreement.  If consistent with the rule or
practice of the court granting a decree of absolute divorce, the provisions of
this agreement, or the substance thereof, shall be incorporated in such decree . . . . 
 
¶ 3.            
Following the court’s issuance of a final separation order incorporating
the terms of the agreement, husband moved to England where he resided until
April 2010, when he returned to the United States.  In June 2010, wife
filed for divorce.  A copy of the separation agreement accompanied wife’s
divorce complaint, which stated that “[s]aid Separation Agreement resulted in a
Final Order and Decree granting [wife] therein a Divorce from Bed and Board”
and requested “a complete and total Divorce from the Bonds of Matrimony.” 
A few days later, husband filed a motion to modify the separation agreement
regarding parental rights and responsibilities of the parties’ two minor
children, which the court held a hearing on and ultimately ordered a new
parenting schedule.  Father also filed a motion to modify child support,
but the parties eventually came to an agreement and the court issued a new
child support order in the fall of 2012. 
¶ 4.            
Husband then motioned for summary judgment, seeking enforcement of the
terms of the separation agreement for the division of marital property in the
impending divorce proceedings.  The family court denied husband’s motion,
stating that “[t]he issues pertaining to the grant of a final divorce must be
determined at the time of the final divorce.”  We disagree on grounds that
the terms of the parties’ separation agreement were incorporated into a final
order by the family court in 2007 and the distribution of property under those
terms cannot be modified except on grounds sufficient to overturn a judgment.[1]
¶ 5.            
On appeal, this Court reviews summary judgment decisions de novo.  O’Brien
v. Synnott, 2013 VT 33, ¶ 9, 193 Vt. 546, 72 A.3d
331.  Summary judgment is appropriate where there is no genuine
dispute of material facts and the moving party is entitled to judgment as a
matter of law.  V.R.C.P. 56(a).  A fact is
only material where it “might affect the outcome.”  O’Brien,
2013 VT 33, ¶ 9.  
¶ 6.            
Husband contends that he is entitled to judgment as a matter of law, and
wife disagrees on the basis that the family court has not litigated the
parties’ divorce and therefore has not evaluated the agreement for equity and
fairness.  This Court does not appear to have addressed the enforceability
of a stipulated agreement that has been incorporated into a final separation
order in a subsequent divorce.[2]
   
¶ 7.            
Legal separation has rarely been before this Court.  Vermont’s
statutes contain a separate section for legal separation, but it provides
limited guidance in its one-sentence length, stating only that: “A legal
separation forever or for a limited time may be granted for any of the causes
for which an absolute divorce may be granted.”  15
V.S.A. § 555.  What is evident from the statute is that a
legal separation can be granted by order of the court where the proper grounds
have been met.  Here, the court granted just such an order, explicitly
incorporating the parties’ stipulation agreement which was intended by the
parties to be the “final settlement of their property rights.”  No issues
were raised by either party or by the family court regarding the equitability
of the agreement’s terms at the time of the separation, and the parties waived
their right to a final hearing.  This resulted in a final order.  See
V.R.F.P. 4(e)(1) (stating that in an action for legal
separation, the court “may grant a final judgment” without a hearing where
requested by the parties and accompanied by a separation agreement, parenting
agreement, and proposed final order).  
¶ 8.            
Once an agreement is incorporated into a final judgment, it too is
final.  In re Dunkin Donuts, 2008 VT 139,
¶ 12, 185 Vt. 583, 969 A.2d 683 (2000) (mem.) (“We have often
indicated that a stipulated agreement incorporated into a court order has the
same preclusive effect as a final judgment on the merits.”); Pouech,
2006 VT 40, ¶ 20 (“Once a stipulation is incorporated into a final order,
concerns regarding finality require that the stipulation be susceptible to
attack only on grounds sufficient to overturn a judgment.”).  Thus, for
wife to wish to overturn the property settlement within the agreement, it would
have to be on Rule 60(b) grounds, none of which were raised below.  See
V.R.C.P. 60(b) (offering limited relief from judgment or order for mistakes,
inadvertence, excusable neglect, newly discovered evidence, fraud, or other
such grounds); Riehle v. Tudhope, 171 Vt. 626, 627, 765 A.2d 885, 887
(2000) (mem.) (recognizing that in wife’s attempt to
overturn separation agreement incorporated into divorce order, her only avenue
for relief was V.R.C.P. 60).  Summary judgment was therefore appropriate,
as the terms of the separation agreement regarding the marital property in 2007
were enforceable as a matter of law.
¶ 9.            
Our holding is in line with public policy and an interest in encouraging
stipulations within the family court context that has been consistently
reiterated in our previous decisions.  See, e.g., Pouech, 2006 VT
40, ¶ 17 (“[W]e have assumed that agreements reached by the parties are
preferable to those imposed by a stranger to the marriage—the court.”); Adamson
v. Dodge, 174 Vt. 311, 327, 816 A.2d 455, 468 (2002) (“[I]n domestic
relations matters, we assume that any agreement reached voluntarily by the
parties is preferable to a court-imposed order.”).  In divorce actions, we
have upheld the parties’ right to negotiate for themselves
the terms of their marriage dissolution, and—subject to judicial approval—to
have those terms honored under the ordinary rules of contract.  Duke v. Duke, 140 Vt. 543, 546, 442 A.2d 460, 462 (1982). 
The same interest in negotiating terms of marriage dissolution exists for
couples entering a legal separation, which by statute can last as long as a
divorce—forever.  15 V.S.A. § 555.
¶ 10.         Were
we to hold that the terms of an agreement that have been incorporated into a
final separation order were not subject to the same rules as a final judgment
upon a subsequent divorce, we would be robbing separation under § 555 of
virtually any legal significance.  Unlike divorce, legal separation is not
necessarily a permanent status.  The terms of a separation order must
therefore provide enough finality to last a lifetime for some parties, and, for
others, provide only a temporary solution.  The parties here made a
tactical decision to ask the court to adopt terms for the “final settlement of
their property rights,” and they did so in express consideration of the fact
that they might later get divorced—as evidenced by the section for “Subsequent
Divorce” in the agreement by which the parties explicitly agreed that they
would still be bound by the agreement’s terms.  The court complied with
the parties’ wishes and incorporated the terms that they designed for their
marriage dissolution.  For this Court to hold that the terms of the
agreement are now subject to modification nearly seven years later because the
parties have chosen to take a step they directly addressed in the separation
agreement would undermine our preference for stipulations, finality in final
judgments, and general principles of contract law.
¶ 11.         Furthermore,
wife’s argument that our holding otherwise denies her the opportunity for a
court to examine the agreement for fairness and equity ignores the fact that
the family court has already conducted just such an examination.  Family
Rule 4(e)(1) states that “[u]pon the filing of all the documents
required . . . the court may grant and enter the final
order without a hearing after the court has reviewed all of the documents and
has determined that the terms and conditions of the parties’ agreement are fair
and equitable.”  As the court granted the parties a final separation order
without a hearing, it naturally follows that the court found the terms of the
separation agreement to be fair and equitable.  
¶ 12.         Similarly,
in denying husband’s motion for summary judgment, the family court stated that
“it is only upon the termination of the bonds of matrimony that a court may
decide what is a fair and equitable distribution of property, and whether
spousal maintenance should be awarded,” citing two specific hypothetical
examples in support of that conclusion: (1) what if one party inherited one
million dollars after the legal separation but before the divorce, and (2) what
if a party contracted a serious and debilitating illness after separation but
before divorce?  To answer the first, any property acquired after the
legal separation but before the divorce would be outside the bounds of the
separation agreement, and subject to property distribution under the divorce
statute, 15 V.S.A. § 751.  The property contemplated within the
separation agreement remains distributed by terms of the agreement, as those
terms have already been evaluated for fairness and equity by the family
court.  See Pouech, 2006 VT 40 ¶¶ 22-24 (stating that family
court’s statutory role is to “assure a fair and equitable dissolution” of
marriage and that it should only set aside stipulation agreements where it
provides “adequate findings” why agreement is unfair or inequitable).[3]  As to the second hypothetical posed
by the court, if one party was to develop a serious or debilitating illness,
that would provide grounds for assertion of a real, substantial and
unanticipated change of circumstances that would allow the family court to
change any existing terms for spousal maintenance to ensure fairness and equity
at that point.  15 V.S.A. § 758. 
However, neither circumstance is presented on the record of this case.
¶ 13.         To be
sure, the family court was correct in observing that a final order of legal
separation that includes terms for the distribution of property, spousal
maintenance, and the division of costs and responsibilities for any children
significantly alters the landscape of what the family court can do in a
subsequent divorce.  Nonetheless, that is part of the analysis that
parties must engage in for themselves when deciding whether to request a legal
separation, with its particular benefits and costs, or proceed to an outright
divorce.  Legal separation is a middle ground of sorts between marriage
and divorce, but it is legal ground, and only entered by final order of the
court.  The parties here presumably engaged in such an analysis when they
filed for legal separation and are now bound by the consequences of the final
order that they received.  
¶ 14.         We
therefore reverse the family court’s denial of summary judgment and hold that
husband is entitled to enforcement of the property settlement terms incorporated
into the final separation order.
Reversed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
¶ 15.         REIBER,
C.J., dissenting.   In holding that
separation agreements incorporated into a final order are binding as a matter
of law on subsequent divorce proceedings, the majority overlooks the plain
statutory language conferring on the court the duty to evaluate the fairness
and equity of the property distribution and spousal maintenance at the time of
divorce.  15 V.S.A. §§ 751, 752.  The
majority’s decision confuses the statutory scheme surrounding separation and
divorce, and contradicts the public policy that equity is the lodestar for
divorce proceedings and controls prior agreements in anticipation of
divorce.  For these reasons, I respectfully dissent.
¶ 16.         This
matter concerns property distribution and spousal maintenance in a pending
divorce proceeding.  The majority does not recite the language of the
relevant divorce statutes, 15 V.S.A. §§ 751 and 752, but it is necessary
to the analysis.  State v.
Fletcher, 2010 VT 27, ¶ 10, 187 Vt.
632, 996 A.2d 213 (mem.) (stating that in determining Legislature’s intent, we
begin with statute’s plain language).  The plain language regarding property division, § 751(a), states
that “the court shall settle the rights of the
parties to their property, by including in its judgment provisions which
equitably divide and assign the property.  All property owned by either or
both of the parties, however and whenever acquired, shall be subject to the
jurisdiction of the court.”  Section 751(b) provides factors for
the court to consider in equitably distributing the property, including the
length of the marriage, the age and health of the parties, occupation and
income of the parties, and the parties’ respective property and how it was
acquired.  Similarly, § 752 requires the trial court to evaluate the
surrounding circumstances at the time of divorce in awarding spousal
maintenance.  
¶ 17.         This
statutory language makes clear that the Legislature intended to give discretion
to the family courts to divide property in an equitable and just manner based
on the circumstances at the time of divorce.  The majority’s
interpretation that a separation agreement is binding at divorce is contrary to
this plain meaning.  Simply put, had the Legislature intended for a prior
separation agreement to be binding on the court at divorce, it could have said
so.  Instead, it stated, “[a]ll property . . . however
and whenever acquired, shall be subject to the jurisdiction of the
court.”  Id. § 751(a).  See Comm.
to Save the Bishop’s House, Inc. v. Med. Ctr. Hosp. of Vt., Inc., 137 Vt. 142, 153, 400 A.2d 1015, 1021 (1979) (“This court
must presume that all language in a statute was drafted advisedly, and that the
plain ordinary meaning of the language used was intended.” (citation
omitted)).  That the Legislature knows how to make legal separation
agreements binding on divorce but chose not to do so is especially clear when
Vermont’s statute is contrasted with the Uniform Marriage and Divorce Act,
which specifically provides a procedure for conversion of a legal separation
decree to a divorce decree.  Unif. Marriage &
Divorce Act § 314(b) (“No earlier than 6 months
after entry of a decree of legal separation, the court on motion of either
party shall convert the decree to a decree of dissolution of marriage.”). 
This Court has refused to read language into a statute where our law departed
from a Uniform Act explicitly providing such language, noting that “[t]he
Vermont Legislature has not included such language in Vermont’s . . . law,
and we presume it drafted the . . . statute advisedly.” 
Columbia v. Lawton, 2013 VT 2, ¶ 18, 193 Vt. 165, 71 A.3d 1218.
¶ 18.         Further,
the majority’s interpretation renders parts of § 751 and § 752
incomprehensible.  Many—if not all—of the factors listed in § 751(b)
and § 752 are context-dependent and cannot be determined until a divorce
action is actually filed.  A court cannot simultaneously fulfill its
statutory duty to distribute assets and award spousal maintenance based on the
length of the marriage, age and health of the parties, their assets, occupation
and income, and other factors and also be bound by the
terms of a prior separation agreement.  See Franks v. Town of Essex,
2013 VT 84, ¶ 9, ___ Vt. ___, 87 A.3d 418
(explaining that this Court seeks to avoid absurd or irrational results when
interpreting statutes).  Considering that this Court has emphasized that
there is no common law divorce in Vermont and “[t]he right to grant divorce is
only as specifically allowed to the courts of this state by the legislature,” Gerdel v. Gerdel, 132 Vt. 58, 61, 313 A.2d 8, 10
(1973), the majority’s decision is certain to put trial courts in a bind in
situations where the separation agreement is at odds with statutory
mandates.           
¶ 19.         The
majority’s response is to focus on the fact that the separation agreement here
was incorporated into a final judgment, presumably evaluated for equity and
fairness by the trial court that granted it.  Ante,
¶¶ 8, 11.  The majority asserts that “[w]ere we to hold that
the terms of an agreement that have been incorporated into a final separation
order were not subject to the same rules as a final judgment upon a subsequent
divorce, we would be robbing separation under [15 V.S.A.] § 555
of virtually any legal significance.”  Ante,
¶ 10.  Yet in according the same level of finality to a final
separation order as to a final divorce order, it is the majority that deprives
the statutes governing these procedures of their meaning.  
¶ 20.         “We construe all parts of the statutory scheme together,
where possible, as a harmonious whole, and we will avoid a construction that
would render the legislation ineffective or irrational.”  Ran-Mar,
Inc. v. Town of Berlin, 2006 VT 117, ¶ 5, 181 Vt. 26, 912 A.2d 984 (citation and quotation omitted).  Legal
separation and divorce are separate causes of action under Vermont’s statutory
scheme, governed by separate statutory provisions.  Compare 15 V.S.A.
§ 551 (stating grounds for divorce) with id. § 555 (providing
for legal separation).  The majority rightly recognizes that separation is
not necessarily a permanent status, ante, ¶ 10, as it can last
“forever or for a limited time,” 15 V.S.A. § 555.  Legal separation
must afford sufficient flexibility to last forever for some and provide a
temporary solution to others.  Divorce, by contrast, is intended to
permanently settle the rights and obligations of the parties and accord
finality to the marriage’s dissolution.  See Youngbluth v. Youngbluth,
2010 VT 40, ¶ 10, 188 Vt. 53, 6 A.3d 677
(stating that Vermont law “places great emphasis on
the finality of property divisions” in divorce decrees); Pouech v.
Pouech, 2006 VT 40, ¶ 20, 180 Vt. 1, 904 A.2d 70 (explaining that
“[o]nce a stipulation is incorporated into a final [divorce] order, concerns
regarding finality require that the stipulation be susceptible to attack only
on grounds sufficient to overturn a judgment”).  
¶ 21.         That
divorce confers a level of finality that separation does not is confirmed by
the relative procedures and consequences of the two statutes.  There are
no statutory prerequisites to legal separation, 15 V.S.A. § 555, while the
divorce statute provides a nisi period before the divorce decree can become
absolute, id. § 554.  Moreover, divorce has collateral legal
effects that separation does not.  Most pertinent to this case, as wife
points out, legal separation does not affect legal rights in an estate held by
spouses in tenancies by the entirety, whereas divorce automatically converts
the estate into two tenancies in common.  Stewart v.
Bleau’s Estate, 102 Vt. 273, 276-77, 147 A. 692, 693 (1929). 
The majority’s decision will unduly complicate situations where third parties
rely on the parties’ legal title during the legal separation period.  In
holding that a separation agreement incorporated into a final order is binding
as a matter of law on the parties’ subsequent divorce, the majority deprives
the legal separation statute of its transitory nature and conflates the effects
of legal separation and divorce so that there is no longer any meaningful
difference between
them.           
¶ 22.         Beyond
matters of statutory interpretation, the majority diminishes the public policy
choice, emphasized in the statutes and our case law, that
places concerns of equity first and foremost in divorce proceedings.  In Pouech,
we explained:
[T]he simple truth [is] that an agreement in anticipation
of divorce is not the same as an ordinary contract.  Public policy favors parties settling their own disputes in
a divorce, but . . . 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.                                   
 
2006 VT 40,
¶ 24.
¶ 23.         Based
on the principle that the court must maintain an equitable role in divorce
proceedings, we held in Pouech that the trial court could reject the
parties’ divorce stipulations prior to a final divorce order “even if the
challenging party fails to demonstrate grounds sufficient to overturn a
contract.”  Id. ¶ 22; see also Gerdel, 132 Vt. at 61,
313 A.2d at 10 (“Divorce courts are specifically not
bound by stipulations or agreements entered into by the parties.”). 
For similar reasons, we have held that assets acquired after legal separation
are subject to equitable distribution under § 751 on the basis that
“[a]ssets are normally valued for distribution as of the day of the final
divorce hearing, regardless of whether they were acquired during or after the
parties separated”—emphasizing the statutory duty for the court to evaluate the
equities at the time of divorce.  Golden v. Cooper-Ellis, 2007 VT
15, ¶ 10, 181 Vt. 359, 924 A.2d 19; see also Nuse v. Nuse, 158 Vt.
637, 638, 601 A.2d 985, 986 (1991) (mem.) (holding
that § 751 is broad enough to encompass property acquired after the
parties’ separation).  
¶ 24.         The
majority’s reasoning that attention to the equities at the time of legal
separation trumps reconsideration in subsequent divorce is unpersuasive. 
Supplementing the property division to account for property acquired after
separation or to changed circumstances is a piecemeal approach.  See ante,
¶ 12 (endorsing such an approach).  We rejected such a piecemeal
approach to the equities in Pouech, where the wife requested that the
court consider an award of spousal maintenance during a divorce even though the
parties’ stipulation did not provide for it.  The trial court “recognized
the impossibility” of “consider[ing] her maintenance request
. . . without disturbing the stipulation,” and denied the
wife’s request because she had not demonstrated sufficient grounds to overturn
the stipulation.  2006 VT 40, ¶ 19. 
This Court reversed, holding that the trial court erred in refusing to consider
the wife’s maintenance request and that the parties should have had “an
opportunity to present evidence on the fairness of the stipulation.”  Id. 
We emphasized that “[i]n determining whether to reject the stipulation, the
family court should consider all of the circumstances surrounding execution of
the stipulation. . . .  [T]he question is one of fairness
and equity viewed from the perspective of the standards and factors set forth
in our divorce statutes.”  Id. ¶ 23. 
As in Pouech, the court here cannot consider all of the circumstances
surrounding the execution of a divorce decree if it is inexorably tethered to a
prior legal separation agreement that defines the rights of the parties as to
some of the property of the marital
estate.                         

¶ 25.         None
of this is to say that the trial court cannot consider the legal separation
agreement’s terms in evaluating fairness and equity; indeed, the agreement
should receive due weight in the court’s decision.  White v. White,
141 Vt. 499, 502-03, 450 A.2d 1108, 1110 (1982) (“In
the case of property division and alimony the resulting contract between [the
parties] is a presumptively fair, formal, and binding promise to perform, which
our courts will not lightly overturn since the parties may have bargained away
rights or positions of advantage in exchange for other consideration.”). 
The majority’s reasoning would hold more sway were it to confine its holding to
the particular facts before us—where the parties expressly stipulated that
their separation agreement would be binding in the event of divorce, and that
stipulation was incorporated into a final judgment by the court.  But the
majority appears to go much further, holding that once reduced to final
judgment, legal separation agreements are binding on future divorce proceedings
as a matter of law—regardless of whether the separation agreement contemplates
a later divorce.  Ante, ¶ 8. 
While it is true that finality is of paramount importance, our statutes, case
law, and public policy make equally clear that the trial court must perform an
independent evaluation of the equities at the time of divorce before entering a
decree.  For these reasons, I cannot agree with the majority that a legal
separation agreement is binding in a divorce as a matter of law.  
¶ 26.         I am authorized to state that Justice Dooley joins this
dissent.

 


 


 


 


 


 


 


 


Chief Justice

 





[1] 
Our holding is limited to the terms of the separation agreement that address
the parties’ real and personal property.  As the parties have already
modified the separation agreement with respect to parent-child contact and
child support, there is no issue with the court’s authority to modify aspects
of a stipulation agreement dealing with children.  See 15 V.S.A.
§ 660(a) (“[U]pon a showing of real, substantial and unanticipated change
of circumstances, the court may annul, vary or modify a child support order,
whether or not the order is based upon a stipulation or agreement.”); id.
§ 668 (allowing court to modify order of parental rights and
responsibilities “upon a showing of real, substantial and unanticipated change
of circumstances”).  
 


[2] 
From the outset, we note that this case is not questioning the family court’s
authority to review or reject stipulation agreements made between parties in
the divorce context.  See Pouech v. Pouech, 2006 VT 40, ¶ 22,
180 Vt. 1, 904 A.2d 70 (holding that trial court may reject stipulation
agreement as unfair or inequitable when challenged by a party before final
hearing or incorporation into divorce order).  Rather, this case presents
the limited question of whether a stipulation agreement addressing marital
property distribution that has been incorporated into a final separation order
stands as a final judgment, or whether it is subject to modification by the
trial court in divorce proceedings.


[3]
 The dissent’s reliance on Pouech, post, ¶ 24, is
misplaced.  In Pouech the stipulation was filed in anticipation of
a pending divorce, not as a distinct legal separation. 



