2014 VT 66


Joseph v. Joseph (2013-240)
 
2014 VT 66
 
[Filed 18-Jul-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 66

 

No. 2013-240

 

Andrea Joseph


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Windham Unit,


 


Family Division


 


 


Neil Joseph


December Term, 2013


 


 


 


 


John
  P. Wesley, J.


 

Melvin D. Fink, Ludlow, for Plaintiff-Appellant.
 
Matthew T. Birmingham of Birmingham &
Moore, P.C., Ludlow, for Defendant-Appellee.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Robinson and
Crawford, JJ.
 
 
¶ 1.            
ROBINSON, J.   This case calls upon us to determine the
effect of an arrearage accrued under a temporary order following a final
divorce decree when the arrearage was not incorporated into the final order or
otherwise reduced to judgment.  Wife Andrea Joseph appeals the family
court’s denial of her motion to enforce husband Neil Joseph’s obligations under
a temporary divorce order after a final divorce decree issued.  We affirm.

¶ 2.            
In December 2011, wife filed for divorce after twenty-three years of
marriage to husband.  In October 2012, the parties entered into a
stipulation agreeing to equally divide certain joint Morgan Stanley
accounts.  They also agreed in the stipulation that husband would continue
to pay, out of the portion of the joint accounts designated to him, “those
obligations that were being paid prior to the divorce action, which would
include but not be limited to: mortgages, taxes, insurance and utilities for
the properties that are owned by either one or both of the parties.”  The
trial court approved the stipulation and entered it as a court order.
¶ 3.            
The trial court held a two-day contested divorce hearing in March
2013.  Wife concedes that in the context of the final divorce hearing, she
did not raise any questions about whether husband fulfilled his obligations
under the October 2012 stipulation, and the question was not in any way
addressed at the final divorce hearing.  The court issued a final
divorce decree on April 9, 2013 that distributed the marital estate nearly
equally between wife and husband.  Neither party
appealed the final divorce decree nor sought any relief from the
judgment.
¶ 4.            
On May 10, 2013, wife filed a motion for enforcement and contempt with
respect to the October 2012 stipulated order, alleging that husband had failed
to make some of the required payments during the pendency of the divorce and up
to the entry of the final divorce decree.  Wife alleged that she made a
number of payments during the period between the trial court’s acceptance of
the stipulation and the issuance of the final decree for which she was not
reimbursed, including mortgage, utility, and insurance payments.  She also
claimed that some obligations under the stipulation remained unpaid altogether,
including insurance, utility payments, and property taxes on the marital
property.  Wife requested that the trial court take an accounting of
husband’s unpaid obligations, order payment, and find husband in contempt of
the temporary order.
¶ 5.            
The trial court denied wife’s motion, concluding that it lacked subject
matter jurisdiction to enforce a temporary order after the final divorce decree
became final.  The trial court, citing this Court’s decisions in Chaker
v. Chaker, 155 Vt. 20, 581 A.2d 737 (1990) and Camara v. Camara, 2010
VT 53, 188 Vt. 566, 998 A.2d 1058, reasoned that once the final divorce decree
issued, the temporary order “merged into it and was extinguished.”  Wife
appealed to this Court.
¶ 6.            
Neither party disputes that prospective obligations under the
stipulation are superseded by the final order.  The issue on appeal is
whether arrearages accrued under a temporary order, which were not reduced to a
separate judgment and were not raised or addressed at the final divorce
hearing, are enforceable after the final
hearing.  Because this is a question of law, our review is nondeferential
and plenary.  Our Lady of Ephesus House of Prayer, Inc. v. Town of
Jamaica, 2005 VT 16, ¶ 10, 178 Vt. 35, 869 A.2d 145.
¶ 7.            
Wife acknowledges that a final divorce decree may extinguish prospective
obligations based on a temporary order, but argues that the final order cannot
extinguish obligations already accrued while the temporary order was in
effect.  She further argues that obligations accruing through the temporary
period cannot be fully litigated at the final hearing because arrearages may
accrue while the temporary order continues to be in force between the final
hearing and the court’s issuance of the final divorce decree.  Husband
responds that he relied on the final hearing to resolve all issues as to
property, debt, and other assets and that wife is now precluded from seeking
enforcement of the temporary order.
¶ 8.            
We have not previously addressed the central issue in this case, and the
two decisions featured most prominently in the parties’ briefs and the trial
court’s opinion provide little guidance.  In Chaker,
the trial court had issued a temporary spousal maintenance order in September
1984.  It issued a final spousal maintenance order in a different amount,
as well as an order for arrearages that had accrued under the temporary order,
in May 1985.  This Court subsequently reversed that spousal maintenance
order.  155 Vt. at 23, 581 A.2d at 739.  On
remand, in June 1988 the trial court issued a new spousal maintenance order for
yet a different amount, and calculated the arrearage due for the period between
the 1985 final order that was reversed by this Court and the 1988 actual final
order.  In calculating the arrearage due, the trial court had to determine
which spousal maintenance obligation applied during the period in
question.  The trial court reasoned that the initial final order was no
longer in effect because it was reversed on appeal and thus calculated spousal
maintenance arrearages based on the 1984 temporary order that had preceded that
1985 initial final order.  On appeal, this Court agreed that the trial
court’s analysis was “consistent with the statute and the proper effect of a
temporary order only if the final order became effective with respect to
maintenance on the day it was issued [in June 1988].”  Id. at 29, 581 A.2d at 742.  However, the trial court had the
discretion to make its 1988 spousal maintenance order retroactive at least to
the date of the initial hearing; because it had not exercised its discretion to
determine the effective date of the permanent maintenance award, and thus the
termination date of the temporary award, we remanded to the trial court for a
hearing on the question.  Id. at 30-31, 31 n.2,
581 A.2d at 742-43, 743 n.2.  
¶ 9.            
Although two statements in Chaker highlight that case’s potential
relevance to this case, ultimately the decision provides little relevant guidance.
 First, we pointed out that the applicable statute authorizes a court to
award temporary maintenance “pending final hearing and further order of the
court.”  Id. at 29, 581 A.2d at 742 (citing 15 V.S.A.
§ 594a).  We noted that this expectation that a temporary order will
be replaced by a final order “is consistent with the general law that temporary
maintenance orders merge into, and are superseded by, the final order.”  Id. 
These statements reinforce the uncontroversial principle that an ongoing
spousal maintenance obligation in a temporary order is superseded by a final
order, but do not squarely address the question here: whether arrearages
accrued pursuant to the temporary order and not reduced to judgment survive a
final order.  Second, we expressly declined to consider whether the court
“could establish a retroactive maintenance award covering the period for which
the temporary award was in effect and superseding that award” and noted that
neither party challenged the original determination of the arrearage under the
temporary order due through May 1985.  Id. at 31 n.1, 581 A.2d at 743 n.1.  The question of whether a court can
retroactively modify a temporary order and arrearage accrued
thereunder—expressly left open in Chaker—is closely related to the
question before us in this case.
¶ 10.         In Camara,
we addressed a wife’s request that the husband continue to pay spousal
maintenance under a temporary order during the pendency of the appeal of the
final divorce decree.  We explained that the purpose of temporary
maintenance is to maintain the status quo between the parties while the divorce
is pending and cited Chaker for the proposition that a temporary order
is replaced by a final order.  Camara, 2010 VT
53, ¶ 18.  We concluded that the temporary maintenance
obligation terminated with the entry of the final decree, which did not provide
for maintenance.  Id. ¶¶ 18-19.  That case did not
involve accrued arrearages under the temporary order, but rather the
prospective enforcement of a temporary maintenance provision while an appeal of
the final order was pending.  Like our decision in Chaker, our
holding in Camara relied on the general principle that temporary orders
merge into, and are superseded by, the final divorce decree; like Chaker,
Camara does not purport to address the post-final divorce status of an
arrearage accrued during the pendency of a temporary order when that arrearage
was not reduced to a separate judgment, raised at the final hearing or
explicitly addressed in the final decree.   
¶ 11.         The
applicable statutes likewise provide limited guidance.  As noted above,
the statute authorizing temporary orders contemplates that a temporary order
will be replaced by a final order, but does not purport to address the question
of what happens to an arrearage accrued under a temporary order.  15 V.S.A. § 594a.  Parties can reduce arrearages
accrued pursuant to temporary orders for maintenance, child support or suit
money to judgment pursuant to 15 V.S.A. § 606(a), (b).  This statute
does not apply to property awards.  
¶ 12.         The statute governing property division, id.
§ 751, gives the court broad authority in dividing marital property with
respect to both the factors the court may consider in its distribution and the
property subject to the court’s jurisdiction.  Id.
§ 751(b) (allowing court to consider “all relevant factors,” including
twelve statutory factors, when making a property settlement); id.
§ 751(a) (“All property owned by either or both of the parties, however
and whenever acquired, shall be subject to the jurisdiction of the
court.”).  Moreover, a court’s property distribution is generally not
subject to modification absent certain limited circumstances.  Boisselle
v. Boisselle, 162 Vt. 240, 242, 648 A.2d 388, 389 (1994) (concluding that
“Vermont law is clear that the court cannot modify the property disposition
aspects of a divorce decree absent circumstances, such as fraud or coercion,
that would warrant relief from judgment generally”).  Section 751 does not
expressly state that a court’s property division order extinguishes all
outstanding property claims between the parties arising from the marriage, but
it does evince a legislative intent that the scope of the court’s order with
respect to property division is both broad and comprehensive.
¶ 13.         Other
state courts are divided on the question of whether a final divorce decree
extinguishes a party’s right to collect an arrearage accrued under a temporary
order that was not reduced to judgment before or in the final order.  Some
courts have held that accumulated arrearages under a temporary order are
enforceable even after a final decree issues.  See, e.g., Newton v.
Newton, 232 S.E.2d 557, 558 (Ga. 1977) (“Any arrearage which accrued under
the temporary order prior to the rendition of the final decree may properly be
the subject of contempt proceedings initiated subsequent to the final
decree.”); Lewis v. Lewis, 586 So.2d 740, 742 (Miss. 1991) (“[P]ayments that become due and payable under a temporary order
may be reduced to judgment after entry of the final decree, despite the failure
of that decree to expressly preserve them.”); Ex parte Shaver,
597 S.W.2d 498, 500 (Tex. App. 1980) (“[R]endition of
the final divorce decree does not in itself nullify the temporary order with
respect to payments past due.  It supersedes the temporary order with
respect to future support, but the obligation for past support, as fixed by the
temporary order, continues unless modified by the provisions of the divorce decree
or satisfied by payment.”).
¶ 14.         Others
have concluded that the issuance of a final decree terminates any rights
acquired under a temporary order, including arrearages accrued during the
pendency of an order.  See, e.g., Maddox v. Maddox, 160 So.2d 481,
482 (Ala. 1964) (“[A] final decree of divorce has the
effect of rendering unenforceable the right to accrued installments of alimony
pendente lite, unless the right to such installments are saved by said final
decree.”); Krogen v. Collins, 907 P.2d 909, 912 (Kan. Ct. App.
1995) (“[A] final order containing no award of alimony impliedly discharges
accrued arrearages on temporary alimony.”); Colom v. Colom, 389 N.E.2d
856, 858 (Ohio 1979) (“It is our view that not only
should the interim orders be merged within the final judgment, but the right of
action or enforcement of such interim orders should not be extended beyond the
final decree unless specifically reduced to judgment or referred to within the
decree.”); see also Skinner v. Skinner, 579 So.2d 358, 359 (Fla.
Dist. Ct. App. 1991) (holding that interlocutory order directing husband to pay
wife’s medical bill did not survive final dissolution judgment that was silent
as to the unpaid bill).
¶ 15.         After
reviewing authorities on both sides of this question, we agree with those
courts that have held that a final decree extinguishes the right to enforce an
arrearage arising under a temporary order that has not been included in the
final order or otherwise reduced to judgment.  This approach “serves the
salutary purpose of consolidating the adjudicated rights and duties of the
parties into a single document, and prevents the resurrection of the
interlocutory matters after the [final] decree.”  Colom, 389 N.E.2d at 858.       
¶ 16.         We
recognize the arguments against such an approach.  See Lewis, 586
So.2d at 742 (“A rule that denies recovery of accrued
unpaid obligations under a temporary order unless they are expressly preserved by the final order is ‘entirely senseless . . . [because]
it rewards the recalcitrant husband for non-compliance with the court’s order
by excusing him from payment of arrears.’ ” (quoting Druce v. Druce,
738 P.2d 633, 634 (Utah 1987)).  However, the risk of an obligor
escaping liability for failing to comply with a temporary order is
significantly mitigated by the fact that a party seeking to preserve a right
accrued under a temporary order may seek to include it in the final order or,
in cases in which 15 V.S.A. § 606(a) applies, to reduce the arrearage to
judgment before the final decree.  Maddox, 160 So.2d at 482
(explaining right to arrearages accrued prior to entry of the final decree can
be “saved by said final decree”); Britven v. Britven, 145 N.W.2d
450, 456 (Iowa 1966) (“[A]ccrued installments of temporary alimony
previously allowed in a divorce action may be saved by a judgment for the total
sum then owing as a part of a final decree of divorce.”); Colom, 389
N.E.2d at 858 (stating arrearages can be recovered if reduced to judgment or
referred to within the final decree).  A trial court’s failure to
incorporate an accrued arrearage into a final judgment, if the issue was
raised, would be subject to review on appeal.  As the Connecticut
Appellate Court recently explained:
[W]here a final decree of divorce has been rendered, any
orders regarding pendente lite alimony are merged in the final decree and
thereafter, no independent action for contempt based on the temporary alimony
order can be properly brought.  Review may be made, however, of that part
of a final order which fails to . . . incorporate
an accumulated arrearage of pendente lite alimony . . . . 
Indeed, it would be error for a trial court . . . to fail to incorporate an
accumulated arrearage of pendente lite alimony in a final order granting
dissolution.
 
Clark v. Clark, 13 A.3d 682, 688 (Conn. App. Ct. 2011)
(quotation omitted). 
 
¶ 17.         Moreover,
the countervailing considerations are substantial.  The resolution of all
the issues and claims between the parties to a divorce in one proceeding will
add necessary predictability and clarity to a process that can all too often be
complex and acrimonious.  Just as modification of property distribution is
disfavored in order to preserve finality, so too must piecemeal litigation of
issues arising out of the marriage be avoided.  We have recognized that
“[t]here is no area of law requiring more finality and stability than family
law” and that finality is of paramount importance in the divorce context. 
Arbuckle v. Ciccotelli, 2004 VT 68, ¶ 11, 177 Vt. 104, 857 A.2d 324
(quotation omitted).  Requiring parties to litigate arrearages by the
close of evidence at the final divorce hearing will promote such finality, and
will avoid the risk that a party who believes the other has failed to comply
with a temporary order will sandbag the other party by remaining silent about
the issue at the final hearing, only to raise the matter after the final order.
¶ 18.         If
arrearages under a temporary order accrue prior to the final hearing
unbeknownst to the party who would seek enforcement—for instance unpaid
property taxes may not become evident until some time after the final decree is
entered—the newly discovered evidence may well support a claim for relief from
the final divorce order.  See V.R.C.P. 60(b) (court may relieve a party
from final judgment on account of newly discovered evidence which could not by
due diligence have been discovered in time to move for a new trial); V.R.F.P.
4(a)(1) (rules of civil procedure apply in actions for
divorce).
¶ 19.         In
this case, wife seeks to enforce the terms of a temporary order.  She
concedes that she did not raise the issue of whether husband had been
fulfilling his obligations under the stipulation at the final hearing, and did
not present any evidence on the subject.[*] 
The record reflects that wife made no mention of these arrearages, or of the
stipulations, in her requests to find prior to the hearing or the supplemental
requests to find filed with the court’s permission after the hearing.  To
the extent that wife now seeks to enforce obligations that were, to her
knowledge, unsatisfied at the time of the final divorce hearing, she cannot
escape the effect of the final divorce order in extinguishing those debts.
¶ 20.         We
agree with the trial court’s analysis as to the impact of the final divorce
order on the allegedly unsatisfied obligations pursuant to the temporary order,
and affirm.
Affirmed.

 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[*] 
Wife indicated, pursuant to Vermont Rule of Appellate Procedure 10(b)(1), that a transcript was not necessary for this appeal
and we have not reviewed one.



