Bassler v. Bassler

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. 89-464


Linda Griffith Bassler                       Supreme Court

    v.                                       On Appeal from
                                             Rutland Superior Court

George Paul Bassler                          September Term, 1990
and Delores Bassler


Arthur J. O'Dea, J.

Corsones & Corsones, Rutland, for plaintiff-appellee

Robert P. McClallen, Rutland, for defendant-appellant

Miller, Cleary & Faignant, Rutland, for additional party-appellant


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     GIBSON, J.   Defendant George Bassler and additional party defendant
Dolores Bassler (George's mother) appeal from a divorce judgment awarding
plaintiff, Linda Griffith Bassler, the sum of $35,000 in satisfaction of any
marital or other interest she may have in the lands, premises, and machinery
held in George's and Dolores's names.  We affirm.
                          I.
     In September of 1983, Linda and her daughter, Lindsey, moved into a
house on the Bassler estate in Wells, Vermont to live with George Bassler.
The estate, which contained over 500 acres of land, was owned by Dolores,
who lived in a separate residence thereon.  The trial court found that Linda
was orally assured by Dolores and George that she "did and would own the
house and surrounding acreage (200 acres more or less) as the family home."
Linda gave up her waitressing and catering jobs, and devoted her energies to
the household.  The couple made major improvements to their home, which was
in great disrepair, and to the surrounding property.  In 1986, with
Dolores's knowledge, George and Linda took out a homeowner's insurance
policy in their own names on their house, paying the premiums themselves.
     In late 1984 or early 1985, Linda became pregnant.  George agreed to
marry her, but only after the execution of an antenuptial agreement.  An
agreement was prepared by George's attorney, and after several delays, the
couple executed it on May 30, 1985, one day before they married.  In
relevant part, the agreement provided that Linda waived "all and every
right whatsoever which she might have or acquire by law by such marriage in
any and all property of every kind and character, real, personal, or mixed,
now owned or which may hereafter be acquired by George P. Bassler."
    Linda and George separated in August of 1988.  Since the separation,
George has continued to live on the estate; Linda, her daughter Lindsey, and
Adam, who was born during the marriage, moved out and have been receiving
assistance from the Department of Social Welfare.
     On September 17, 1988, Linda filed a complaint for divorce.  There-
after, she moved to add Dolores Bassler as a party to the action.  The
trial court granted the motion "in an effort to pierce the veils which
[Dolores] and George place around their assets."  At trial, the extent of
George's assets was obscured by a number of partially explained trans-
actions.  The court found, however, that George always had sufficient funds
to meet his needs and desires, even though he had no regular paycheck or
earnings record consistent with his lifestyle.  When the family well-
drilling business was liquidated during 1985 and 1986, George received
$81,000 and Dolores withdrew $32,000, which she turned over to George.  In
1986, George paid $43,000 for property in Wells that was sold in 1988
without profit.  Also during the marriage, George purchased real property in
Maine, putting it in Linda's name and subsequently selling it, apparently
for a loss.  The court awarded Linda $35,000 as her share of the marital
assets.
     On appeal, George and Dolores contend that (1) the Statute of Frauds
bars Linda from asserting a marital interest in the house and surrounding
land, and (2) the antenuptial agreement is valid and should have been
enforced by the trial court.  George also contends that the court made
inadequate findings to support its award of $35,000 to Linda.  Dolores
argues that she was improperly added as a party.
                                   II.
     George and Dolores both assert that (1) there was no oral agreement
regarding the house and surrounding land, and (2) even if there was such an
agreement, the Statute of Frauds (FN1) bars enforcement because Linda's part
performance is insufficient to remove the agreement from the statute.
Dolores argues additionally that the part-performance doctrine does not
apply unless money damages are an inadequate remedy and that, in the instant
case, the trial court implicitly acknowledged money damages to be adequate
inasmuch as it awarded Linda a sum of money.  Linda responds that (1)
sufficient part performance has been shown, and (2) inadequacy of money
damages is not a prerequisite to invoking the part-performance doctrine.  We
address appellants' arguments seriatim. (FN2)
                                  A.
     George and Dolores first argue that there was no oral agreement with
respect to the property.  The trial court found that "Linda was assured by
George and George's mother, Dolores[,] that the guest house was her family
home and notwithstanding the various maneuverings between George and his
mother Dolores, Linda did and would own the house and surrounding acreage
(200 acres more or less) as the family home."  On appeal, we must view the
evidence in the light most favorable to the prevailing party, excluding the
effect of modifying evidence.  Only if a finding is clearly erroneous can
it be overturned.  McCormick v. McCormick, 150 Vt. 431, 434, 553 A.2d 1098,
1101 (1988).  "Where there is a dispute in the testimony, it is up to the
trial court, which can better judge the credibility of the witnesses, to
resolve the dispute."  Klein v. Klein, 150 Vt. 466, 469, 555 A.2d 382, 384
(1988).
     In the instant case, George denied the existence of any oral agreement
concerning the property, whereas Dolores, who never testified, admitted in
her pleadings that there was an agreement to transfer the property, but that
it was made with George only.  Linda testified that an agreement was reached
whereby she and George would purchase the property from Dolores for
$200,000, to be paid in monthly installments of $600, with interest paid by
plowing Dolores's driveway and maintaining her loan.  Linda also testified
that they have paid $33,000 toward the purchase price.  Moreover, as known
to Dolores, George and Linda purchased a homeowner's insurance policy in
their own names for the period of March 24, 1986 to March 24, 1987, and they
later renewed the policy for an additional three years.  Indisputably, there
is a conflict in the evidence.  After careful review of the record, we
cannot conclude that the trial court's finding that there was an agreement
is clearly erroneous.
                                   B.
     George and Dolores acknowledge that, under the doctrine of part
performance, an oral agreement may be removed from the Statute of Frauds and
enforced when the party claiming an agreement can show that, in reliance on
the agreement, he or she suffered a substantial and irretrievable change in
position.  See Jasmin v. Alberico, 135 Vt. 287, 289-90, 376 A.2d 32, 33
(1977).  They contend, however, that Linda did not suffer such a substantial
and irretrievable change in circumstances.
     Initially, we disagree with George and Dolores that only the actions of
Linda, and not those of George, can be considered.  If either George or
Linda, or the two of them together, have an interest in the property, that
interest is part of the marital estate and subject to the jurisdiction of
the court.  See 15 V.S.A. { 751(a),(b)(6). (FN3) Thus, we consider the actions
of both Linda and George.
     In Jasmin, we held that improvements such as "repairing a back porch,
having gas piped to the house, making electrical and plumbing repairs, and
doing some landscaping" were indistinguishable from those of a tenant
responsible for maintenance of leased premises and did not amount to a
substantial and irretrievable change of position. 135 Vt. at 290, 376 A.2d 
at 34.  The renovations made by George and Linda Bassler are, however, of a
materially different nature from the repairs and improvements made in
Jasmin.  George and Linda installed hot water heaters, insulation, new
siding, new flooring, a new furnace, and new windows and window frames;
excavated and graded a road to the house; removed a barn; built a deck; and
drained and cleared the brush around a pond.  These activities show a
substantial and irretrievable change in the position of Linda and George,
and are more than enough to support the decision of the trial court to take
the agreement out of the Statute of Frauds.
                                   C.
     Dolores contends that a prerequisite to invoking the part-performance
doctrine is the inadequacy of money damages, pointing out that the trial
court ordered that Linda be paid $35,000 for her interest in the marital
estate.  Linda concedes that inadequacy of money damages is a prerequisite
for specific performance, but contends that it is not a requirement for
application of the part-performance doctrine.
     Dolores and George never raised this argument before the trial court
and have, therefore, waived it.  American Trucking Ass'ns v. Conway, 152 Vt.
383, 387, 566 A.2d 1335, 1337 (1989) ("issues not raised before the trial
court are waived on appeal").  Nevertheless, we point out that Linda made no
request for specific performance.  Instead, she merely requested that the
court consider the marital interest in the house and surrounding land when
it distributed the marital assets.  See 15 V.S.A. { 751.  Given the posture
of the case, the trial court was not required to -- and did not -- determine
if specific performance was appropriate.  On the record before us, we
decline to address the issue. (FN4)
                                   III.
     George and Dolores alternatively contend that George and Linda's
antenuptial agreement is valid and should control the distribution of any
marital assets.  In support of this contention, George maintains that the
procedural requirements of voluntariness and disclosure were met.  Dolores
argues that Linda failed to meet her burden of showing by clear and
convincing evidence that the agreement was entered into as a result of
fraud, duress, or coercion. (FN5)
     The enforceability of an antenuptial agreement is governed by
consideration of whether (1) "each spouse has made fair and reasonable
disclosure to the other of his or her financial status[,] [2] each spouse
has entered into the agreement voluntarily and freely[,] and [3] the sub-
stantive provisions of the agreement dividing the property upon divorce are
fair to each spouse."  Button v. Button, 131 Wis. 2d 84, 99, 388 N.W.2d 546,
548 (1986).  Public policy bars enforcement of an antenuptial agreement
that is unconscionable at the time it is executed.  See Padova v. Padova,
123 Vt. 125, 129, 183 A.2d 227, 230 (1962) ("In the absence of evidence of
fraud or unconscionable advantage taken at the time of execution, the
parties themselves are bound according to the terms of the contract."); see
also Rodgers v. Rodgers, 135 Vt. 111, 112, 373 A.2d 507, 509 (1977) (if out-
of-state separation agreement "is valid where made, it will be interpreted
here according to the law of the state of its making, so long as to do so
will not violate the public policy of the State of Vermont").   Addition-
ally, where, at the time of the divorce, an antenuptial agreement leaves one
spouse a public charge, or close to it, the agreement may be unenforceable
as against public policy.  See Osborne v. Osborne, 384 Mass. 591, 599, 428 N.E.2d 810, 816 (1981) ("agreement must be fair and reasonable at the time
of entry of the judgment nisi, and it may be modified by the courts in
certain situations, for example, where . . . one spouse is or will become a
public charge . . . ."); MacFarlane v. Rich, 132 N.H. 608, 616, 567 A.2d 585, 591 (1989) (when "enforcement of an antenuptial agreement would result
in the spouse becoming a public charge . . . the State's interest in pro-
tecting the welfare of the spouse, and mitigating the hardship occasioned
by divorce, compels judicial reformation of the contract").  As aptly stated
by one court:
          Clearly there must be some level of "unconscionability"
          which would bar enforcement of an antenuptial agreement
          no matter what disclosure had been made.  An agreement
          which would leave a spouse a public charge or close to
          it, or which would provide a standard of living far
          below that which was enjoyed both before and during the
          marriage would probably not be enforced by any court.
Marschall v. Marschall, 195 N.J. Super. 16, 30-31, 477 A.2d 833, 840-41
(1984).
     At the time of the hearing, Linda was receiving public assistance.  In
contrast, the trial court found that George always had sufficient means to
meet his desires and needs.  Under these circumstances, we have no hesita-
tion in holding, as a matter of law, that the antenuptial agreement violates
public policy and should not be enforced.
     Dolores also argues that the trial court improperly admitted Linda's
testimony that George insisted she sign the agreement before the marriage,
and that she was induced to sign by the pending wedding and her advanced
pregnancy.  Dolores claims that this testimony sought to contradict or
negate the terms of the agreement because it was inconsistent with the
agreement's acknowledgement clause and was therefore barred as parol evi-
dence.  Under the parol evidence rule, "oral testimony is inadmissible to
vary or to add to the terms" of a written contract.  Sachse v. Lumley, 147
Vt. 584, 587, 524 A.2d 599, 601 (1987).  Evidence of unconscionability, how-
ever, does not offend the parol evidence rule, because such evidence may be
offered to disaffirm or avoid the "binding force" of the contract.  See
Holbrook Grocery Co. v. Armstrong, 97 Vt. 197, 201, 122 A. 458, 460 (1923).
In the instant case, Linda's testimony did not serve to vary or add to the
terms of the written agreement; instead, it was introduced to challenge the
"binding force" of the agreement and was, therefore, properly admitted.
                                   IV.
     George contends that the trial court made inadequate findings to
support its conclusion that Linda is entitled to $35,000 as her share of
the marital assets.  The court's distribution of the marital property will
not be disturbed absent a showing that it abused its wide discretion.
Leonard v. Leonard, 150 Vt. 202, 203, 552 A.2d 394, 395 (1988).  Although
the court cannot leave the basis for its decision to speculation, Gustin v.
Gustin, 148 Vt. 563, 565, 536 A.2d 933, 935 (1987), we will uphold the
decision where the findings reasonably support the judgment.  Bonanno v.
Bonanno, 148 Vt. 248, 251, 531 A.2d 602, 603 (1987).  In the instant case,
the trial court concluded that the "machinations" of George and Dolores
hindered efforts to "pierce the veils . . . around their assets."  The court
noted that George and Linda purchased a homeowner's insurance policy with a
$108,000 declared value for the house they occupied.  Further, the evidence
discloses a substantial distribution to George from the dissolution of the
well-drilling business, which occurred two to three years before the filing
of the divorce action.  The trial court had no alternative but to distribute
the marital assets as best it could.  See Klein v. Klein, 150 Vt. at 471,
555 A.2d  at 385; Ruhe v. Ruhe, 142 Vt. 429, 432, 457 A.2d 628, 630 (1983).
Given the circumstances, we have no difficulty holding that the evidence
supports the court's findings, which reasonably support its judgment.
                                   V.
     In her reply brief, Dolores raises for the first time the argument
that she should not have been joined as a party to this action.  This issue
was not raised, however, in her original brief.  Under V.R.A.P. 28(c),
"[o]ur law is clear that issues not raised in an appellant's original brief
may not be raised for the first time in a reply brief."  Maynard v.
Travelers Ins. Co., 149 Vt. 158, 160, 540 A.2d 1032, 1033 (1987).  We
therefore decline to address this argument.
     Affirmed.

                                        FOR THE COURT:

                                        ________________________________
                                        Associate Justice



FN1.    The cited provisions are 12 V.S.A. { 181 and 27 V.S.A. { 302.  12
V.S.A. { 181 provides in pertinent part:
          An action at law shall not be brought in the following cases
     unless the promise, contract or agreement upon which such action
     is brought or some memorandum or note thereof is in writing,
     signed by the party to be charged therewith or by some person
     thereunto by him lawfully authorized:
          . . .
          (5) A contract for the sale of lands, tenements or
     hereditaments, or of an interest in or concerning them.
     Authorization to execute such a contract on behalf of another
     shall be in writing.
27 V.S.A. { 302 provides:
          Estates or interests in lands, created or conveyed without an
     instrument in writing shall have the effect of estates at will
     only.  An estate or interest in lands shall not be assigned,
     granted or surrendered unless by operation of law or by a writing
     signed by the grantor or his attorney.

FN2.     The parties have not raised the threshold issue of whether or under
     what circumstances the Statute of Frauds applies to an asserted marital
     interest in real property held in the name of a third person.  See Stamato
     v. Quazzo, 139 Vt. 155, 158, 423 A.2d 1201, 1204 (1980)(Statute of Frauds
     inapplicable in an equitable action based on fraud and arising out of an
     out-of-state divorce, where the Vermont real property was held in a third
     person's name); 15 V.S.A. { 751(a)("Title to the property, whether in the
     name of the husband, the wife, both parties, or a nominee, shall be
     immaterial . . . .").  In the instant case, we assume, for purposes of
     argument, that the Statute of Frauds is applicable.

FN3.    15 V.S.A. { 751 provides in pertinent part:
          (a)  Upon motion of either party to a proceeding under this
     chapter [relating to annulment and divorce], 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 juris-
     diction of the court.  Title to the property, whether in the names
     of the husband, the wife, both parties, or a nominee, shall be
     immaterial, except where equitable distribution can be made
     without disturbing separate property.
          (b)  In making a property settlement the court may consider all
      relevant factors, including but not limited to:
          . . . .
          (6)  the value of all property interests, liabilities, and
     needs of each party . . . .

FN4.     We note, however, that our cases do not always clearly distinguish
between the reliance necessary to warrant application of the part-perform-
ance doctrine and the prerequisites for specific performance.  Compare
Chomicky v. Buttolph, 147 Vt. 128, 131-32, 513 A.2d 1174, 1176 (1986) (in
determining whether to take oral contract out from under the Statute of
Frauds in action for specific performance, the court only addressed
whether equities required under the part-performance doctrine were
sufficient), with Jasmin v. Alberico, 135 Vt. 287, 289, 376 A.2d 32, 33
(1977)(in absence of a writing, proponent of specific performance has a
double burden: (1) establishing an agreement enforceable in the face of the
Statute of Frauds, and (2) meeting the standards for specific performance)
and Towsley v. Champlain Oil Co., 127 Vt. 541, 542-43, 254 A.2d 440, 441
(1969)(one seeking specific performance of an oral contract to sell land
needs two stages of equitable relief to prevail: (1) must show that
"equitable considerations justified taking the contract out from under the
Statute of Frauds," and (2) must justify having contract specifically
enforced).

FN5.     The parties have not raised the issue of whether Dolores has
standing inasmuch as she was not a party to the agreement and may not have
been an intended beneficiary of it.  Given our disposition of the case, we
need not address the issue.