Bendekgey v. Bendekgey

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, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
 
 
                                No. 88-552
 
 
Allen Bendekgey                              Supreme Court
 
                                             On Appeal From
     v.                                      Chittenden Superior Court
 
Martha A. Bendekgey                          November Term, 1989
 
 
James L. Morse, J.
 
Bauer, Gravel & Watson, Burlington, for plaintiff-appellant
 
Priscilla B. Dube, Burlington, for defendant-appellee
 
 
PRESENT:  Allen, C.J., Peck, Gibson and Dooley, JJ., and Barney, C.J.
          (Ret.), Specially Assigned
 
 
     DOOLEY, J.   Plaintiff husband appeals from a superior court divorce
decree which disposed of the parties' real property in accordance with their
pretrial agreement.  We affirm.
     The parties were married in July, 1983.  They had no children together,
but defendant had two children, and plaintiff one, from previous marriages.
They bought a house in Colchester in September, 1984 for $72,900, with a
down payment of $24,000 supplied by plaintiff.  After he refinanced the
house in 1986 to pay some personal debts, plaintiff's equity in the house
was reduced to about $8,000.  Under the parties' own arrangements, defendant
paid thirty percent of the mortgage, taxes, and insurance, and plaintiff the
balance.
     The parties separated in January, 1987, at which time they both signed
a hand-written agreement, which is the center of the present dispute.  The
agreement set a value for the house at $85,860, and, after calculating the
amount due on that date under the mortgage, established the parties' total
net equity at $21,260.  The agreement further provided that defendant would
keep the house and would pay plaintiff half of the equity amount, plus an
additional $2,630, if she sold the house.  Between the date of the
separation and the  divorce hearing, defendant spent $6,000 of her own funds
to convert a portion of the residence into a rental property.
     The divorce action commenced in June, 1987, and was heard in August,
1988.  Plaintiff testified that he appraised the value of the house at the
time of hearing at $135,000.  He asked for fifty percent of the total net
equity, a total which he estimated to be about $70,000, instead of the
$21,260 total net equity figure recited in the 1987 agreement.
     On cross-examination of plaintiff, defendant introduced the 1987
agreement without objection.  Defendant's counsel asked plaintiff about the
valuation figure in the 1987 agreement:

	Q:  And did you believe at the time that was pretty
	close to the value of the house?
	 
	A:  I remember arguing about the value of the house, and
	I didn't believe that was fair, but I settled for DD
	 
	Q:  Now, you said you were under considerable stress
	during that time?
	 
	A:  Yes.
	 
	Q:  It was a difficult time, is that DD
	 
	A:  Well, it was difficult in a few areas.  One of them
	was being there.  We didn't have a place to stay.  We
	finally had a place we couldn't move in, had to stay in
	a motel. . . .
 
     When plaintiff rested, the court announced that although it would view
the evidence most favorably to plaintiff, it had no choice but to enforce
the 1987 agreement.  The court stated:
	There hasn't been any showing that this agreement was
	obtained by fraud, by duress, by DD there's nothing
	about the agreement that's unconscionable.  Therefore I
	don't, even viewing every word the Plaintiff has uttered
	as absolute truth, there isn't anything that we can do
	to this agreement, this contract otherwise.  So if
	that's the only issue in this divorce, then I don't
	think we need to have any more testimony.
 
Plaintiff's counsel then asked to recall his client "to perhaps elucidate
the Court with respect to the circumstances of signing this contract,
alleged contract."  The court acknowledged plaintiff's testimony that he was
"under pressure" and that it had been "an emotional time," and asked
plaintiff's counsel for an offer of proof.  Counsel stated:
	Well, your Honor, the offer would be Mr. Bendekgey was
	under severe pressure at the time, his moving out of the
	premises, the document was tendered to him, that he
	didn't fully appreciate the import of each term in the
	proposed document and basically was incompetent to sign
	it at the time.  Upon reflection he thinks that it's
	unfair.
 
Counsel indicated that plaintiff did not plan to present expert testimony on
the question of his competency, and the court declined to allow any
additional testimony.  There were no requests for findings, and judgment was
entered on the basis of the January 1987 agreement. The present appeal
followed.
     Plaintiff makes three arguments on appeal:  (1) the trial court abused
its discretion in distributing the real property based solely on the
agreement between the parties; (2) the written agreement was insufficient to
effect a distribution of the real property; and (3) the trial court did not
make sufficient findings to distribute the real property.  We take these
arguments in order.
     The discretion accorded to the trial court to distribute marital
property is very broad.  The court's decision will stand on appeal unless
that discretion is "'erroneously exercised, or was exercised upon unfounded
considerations or to an extent clearly unreasonable in light of the
evidence.'"  Myott v. Myott, 149 Vt. 573, 578, 547 A.2d 1336, 1339 (1988)
(quoting Jensen v. Jensen, 141 Vt. 580, 581-82, 450 A.2d 1155, 1156 (1982)).
That discretion is narrowed, however, where the parties have made an
agreement to distribute all or part of their property.  We have a strong
policy in favor of voluntary settlement of marital disputes where
appropriate.  See Harris v. Harris, 149 Vt. 410, 420, 546 A.2d 208, 215
(1988) (contested custody matters); White v. White, 141 Vt. 499, 502, 450 A.2d 1108, 1110 (1982) (stipulations offer the "hope that whatever agreement
they can reach together will be preferable to that which might be imposed by
a court which is a stranger to the marriage").
     A pretrial agreement to distribute property is a contract, which the
court can set aside only for grounds sufficient to set aside a contract.
See Harrigan v. Harrigan, 135 Vt. 249, 250, 373 A.2d 550, 552 (1977).  An
agreement distributing marital property is presumed to be fair, formal and
binding.  It represents the product of bargaining in which both parties have
given up positions, rights or entitlements in order to reach a compromise.
Therefore, such agreements will not be lightly set aside.  See Barbour v.
Barbour, 146 Vt. 506, 510, 505 A.2d 1217, 1219 (1986).  A party who seeks to
overturn a property agreement must show "fraud, unconscionable advantage,
impossibility of performance, hampering circumstances beyond the
expectation[s] of the parties, collusion, or duress."  Burr v. Burr, 148
Vt. 207, 209, 531 A.2d 915, 917 (1987).
     Although couched as one argument, plaintiff's first argument actually
has two parts:  (a) that evidence of a higher value of the property
established the unfairness of the agreement and thereby required the court
to distribute the property without regard to the agreement; and (b)
plaintiff's evidence of stress at the time of the agreement constituted
sufficient grounds to set aside the agreement.  In analyzing these two
claims, we emphasize that the trial court had to consider the statutory
factors for property distribution and the updated evidence of value only if
it set aside the agreement.
     Plaintiff's first claim is similar to that raised in Blanchard v.
Blanchard, 149 Vt. 534, 546 A.2d 1370 (1988).  In Blanchard, the parties
reached an agreement to dispose of their house.  The plaintiff paid the
defendant an amount equal to the defendant's "equitable interest" as
determined by two appraisals.  Some months later, the plaintiff sold the
property for over three times the appraised amount and, on this basis,
defendant sought to reopen the agreement.  This Court affirmed the refusal
of the trial court to reopen because defendant failed to show mutual mistake
or any other ground to set aside the agreement.  Id. at 536-37, 546 A.2d  at
1372.  We concluded that the much greater sales price could not be
determinative absent a showing that there was a mistake as to value at the
time of the agreement.  Since the agreement was based on independent
appraisals, no showing of mistake had been made.  Id. at 536, 546 A.2d  at
1372.
     The situation here is similar to that in Blanchard.  The stated value
of the parties' residence in the January, 1987 agreement was $85,860.  Some
nine months later, after defendant modified the residence as a duplex with a
rental unit at her expense, plaintiff's appraiser set the value at
$105,000.  Plaintiff has neither claimed nor shown that the value in the
agreement was erroneous at the time of the agreement.  The building's
physical improvement and the passage of nearly a year may account for the
increase in value.  As in Blanchard, we see no reason to upset the  trial
court's conclusion that the agreement was not unfair when made.
     Plaintiff's related claim is that he should have been allowed to reopen
his case to present additional evidence to address the court's tentative
decision and that, in any event, the evidence showed he was under such
stress when the agreement was made that he should now be able to set it
aside.  His position finds some support in Burr v. Burr, 148 Vt. at 209, 531 A.2d  at 917, where we affirmed a trial court's decision to set aside a
stipulation because the parties had negotiated it over the better part of a
day while under "substantial pressure" from the court to settle.  At best,
Burr teaches that the court might have had the discretion to go further in
this case and develop grounds to set aside the agreement.  We think,
however, that the court acted within its sound discretion in refusing to do
so. Plaintiff's testimony showed only that he was under stress at the time
of the agreement.  As the trial court noted, stress accompanies virtually
all marital breakups, and we could not enforce any pretrial agreements if
stress alone prevented their enforcement.  Plaintiff did not allege duress,
coercion, fraud or unconscionable advantage DD the grounds itemized in our
cases.  This is not a case where one party was represented by counsel and
the other was not.
     Nor can we find error in the failure of the court to allow the
plaintiff to reopen his evidence and present testimony on his mental state
at the time of the agreement.  V.R.E. 611(a) gives the court control over
the mode and order of the interrogation of witnesses and the presentation
of evidence.  Pursuant to this power, the court can refuse to allow the
recall of a witness.  See Reporter's Notes to V.R.E. 611; South Burlington
School District v. Calcagni-Frazier-Zajchowski Architects, Inc., 138 Vt. 33,
52, 410 A.2d 1359, 1368 (1980); Isabelle v. Proctor Hospital, 133 Vt 200,
203, 333 A.2d 118, 121 (1975).  We have required claims of this nature to be
stated with particularity.  See Barbour v. Barbour, 146 Vt. at 510-11, 505 A.2d  at 1220 (record must demonstrate a compelling reason for the court to
reject the provisions of a stipulation).  Here, plaintiff's offer of proof
was vague and general.  Plaintiff had already had a full opportunity to
contest the agreement in his testimony.
     Plaintiff's second argument is that the 1987 agreement was ineffective
to transfer an interest in the marital realty because it lacked the
formalities required for the conveyance of land.  See, e.g., 27 V.S.A. {
341.  The argument was not presented below and is waived on appeal.  See
Lewis v. Lewis, 149 Vt. 19, 23, 538 A.2d 170, 173 (l987).  Even if it had
been raised, a stipulation between parties in a divorce action is not
intended to be a conveyance of land or a contract for the sale of land, and
there is no necessity that it meet the requirements of either.  Pretrial
stipulations, as plaintiff himself argues earlier, are not necessarily
binding on the court, and necessarily contemplate a subsequent court decree
as the enforceable embodiment of the parties' intentions.
     Finally, plaintiff contends that the court made insufficient findings
because it failed to make specific findings regarding the relevant criteria
set forth in 15 V.S.A. { 751, because there were no findings that the 1987
agreement was reasonable, and because it did not render findings as to the
value of any of the parties' assets.  As we stated in McCormick v.
McCormick, 150 Vt. 431, 435, 553 A.2d 1098, 1101 (l988), "The court is
required to find those facts that are 'essential to the disposition of the
issues properly before the court.'" (quoting Jacobs v. Jacobs, 144 Vt. 124,
127, 473 A.2d 1165, 1167 (l984)). See also Klein v. Klein, 150 Vt. 466, 472,
555 A.2d 382, 386 (l988) (findings must show what was decided and why).
Unless the absence of findings prevents an understanding of the court's
decision, as was the case in McCormick, we must apply the general rule that
"the trial court is not required to make findings of fact and conclusions of
law when none are requested."  Viskup v. Viskup, 149 Vt. 89, 92, 539 A.2d 554, 557 (l987).  In the present case, there was no doubt about the basis
for the court's conclusions, since it adopted the parties' own prior
agreement.  The court stated on the record why it followed the agreement.
The remaining questions on which plaintiff desires findings became
irrelevant once the court decided to follow the agreement.
     Affirmed.
 
                                        FOR THE COURT:
 
 
 
 
                                        Associate Justice