Meier v. Meier

Annotate this Case
MEIER_V_MEIER.92-536; 163 Vt 608; 656 A.2d 212

[Filed 30-Dec-1994]

                          ENTRY ORDER

                 SUPREME COURT DOCKET NO. 92-536

                        OCTOBER TERM, 1993

Shirley Meier                     }          APPEALED FROM:
     v.                           }          Chittenden Family Court
Otto Meier                        }
                                  }          DOCKET NO. S202-86CnF

                In the above entitled cause the Clerk will enter:

Defendant appeals from a family court order, which requires him to pay
plaintiff $950 per month in permanent maintenance.  He argues that the family
court erred in concluding that payments he made to plaintiff pursuant to the
final divorce order were maintenance, rather than property settlement, and
that the court had no authority to award maintenance six years after the
final divorce order, which awarded plaintiff no maintenance.  We agree and

The parties were married in 1955 and divorced in 1987.  The final order and
decree was based on the "Property Settlement and Separation Agreement"
entered into by the parties.  It provides: 

        Commencing on the first day of May, 1987, and on the first day
        of each and every month thereafter, the Husband shall pay to the
        Wife the sum of Five Hundred Dollars ($500.00) for eighteen (18)
        months.  At the end of (18) eighteen months, Husband will pay to
        Wife, or to her estate if she shall sooner die, the sum of $20,000.
        Said payments shall be in consideration of the Wife's
        relinquishment of any and all right, title and interest to the
        Husband's retirement and pension benefits and Save Plan assets at
        General Electric (except as specified in paragraph 15).  In the
        event the Husband shall be in arrears . . ., he shall execute an
        assignment of wages . . . .

        In the event of the Husband's death prior to payment in full of
        all sums due under this paragraph, Wife shall receive Fifty
        Thousand dollars ($50,000) in life insurance benefits pursuant to


        paragraph 18, plus payment from Husband's estate of all
        remaining monthly payments and the Twenty Thousand Dollar
        ($20,000) lump sum.  (Emphasis added.)

The parties agree that defendant has paid all sums due under the order.  On
November 8, 1991, plaintiff filed a motion to modify the final order,
requesting maintenance payments from defendant on the ground of a substantial
change in material circumstances.   She alleged that she had become
unemployed and was unable to secure a new position.  The change in
circumstances she advanced was the change in the current economy. 

The family court found the final order ambiguous and thus considered parol
evidence to determine the intent of the parties.  Because the parties
referred to the payments as alimony during negotiations, defendant marked
"alimony payment" on some of his checks, and the parties considered the
payments as a maintenance for federal income tax purposes, the court held
that the payments were maintenance.  It also noted that a wage assignment for
arrearages is generally a characteristic of support orders only.  The court
held that it was not foreclosed by the order or 15 V.S.A.  758 from
awarding maintenance although defendant's obligation under the order had been
fulfilled.  After reviewing the circumstances of the parties, the court
concluded that an award of $950 per month was appropriate.  Defendant

Defendant first argues that the separation agreement and the final order were
clear and unambiguous and indicate that the parties intended the payments to
be part of the property settlement, not maintenance payments.  Because the
final order had no provision for maintenance, defendant maintains that the
family court had no authority to award maintenance. We agree. 

The final order incorporates a separation agreement made by the parties,
which is a contract.  See Bendekgey v. Bendekgey, 154 Vt. 193, 197, 576 A.2d 433, 435 (1990).  We presume that the parties intended to be bound by the
plain language of the instrument.  Northern Aircraft, Inc. v. Reed, 154 Vt.
36, 44-45, 572 A.2d 1382, 1388 (1990).  Extrinsic evidence may be used in
construing a contract only upon finding an ambiguity.  Judge Devel. Corp. v.
Bank of New York, 814 F. Supp. 384, 388 (D. Vt 1993).  Whether a provision in
a contract is ambiguous is a question of law.  Isbrandtsen v. North Branch
Corp., 150 Vt. 575, 577, 556 A.2d 81, 83 (1988).  We find no ambiguity in the
payment provision herein; the parties intended the payments to be part of the
property disposition. 

Two factors lead us to this conclusion.  First, the stated purpose of the
payments is to compensate plaintiff for relinquishing all claim to
defendant's pensions.  The pension rights constitute marital property subject
to distribution under 15 V.S.A.  751.  Milligan v. Milligan, 158 Vt. 436,
439, 613 A.2d 1281, 1283 (1992).  Although this statement is not
determinative, it is a strong indication that the payments to plaintiff were
intended to be part of the property settlement.  See 2 H. Clark, The Law of
Domestic Relations in the United States  16.1, at 181 (2d ed. 1987)
(reference to purpose of award is one basis for distinguishing maintenance
from property).  Second, under the terms of the agreement, the payments are
due even after the death 


of the obligor or the obligee.  Generally, the obligation to pay maintenance
ceases upon the death of either party.  Justis v. Rist, 159 Vt. 240, 243, 617 A.2d 148, 147 (1992).  Although the parties may agree to maintenance
following the death of the obligor, the usual purpose of maintenance, support
of the obligee, is extinguished upon the death of the obligee.  Absent any
indication that the parties intended the payments to be maintenance, these
two factors establish the payments as part of the property settlement. 

"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 a judgment generally."  Boisselle v.
Boisselle, ___ Vt. ___, ___, 648 A.2d 388, 389 (1994). None of these grounds
is asserted here.  Nor may maintenance be modified where the original order
has not provided for maintenance, nor reserved the issue.  See Burroughs v.
Burroughs, 132 Vt. 34, 36, 316 A.2d 522, 523 (1974) (modification of alimony
proper only where alimony appears in the original decree); Unser v. Unser,
526 P.2d 790, 796 (N.M. 1974) (general rule is that where divorce decree is
silent on any award of alimony, later award of alimony is precluded); see
generally Annotation, Domestic Divorce Decree without Adjudication as to
Alimony, Rendered on Personal Service or Equivalent, As Precluding Later
Alimony Award, 43 A.L.R.2d 1387, 1391 (1955 & Supp. 1992).  As the final
divorce decree here is silent regarding maintenance, no maintenance may be
ordered on motion for modification. 


                                   BY THE COURT:

                                   Frederic W. Allen, Chief Justice

                                   Ernest W. Gibson III, Associate Justice

[ ]  Publish                       John A. Dooley, Associate Justice

[ ]  Do Not Publish                _______________________________________
                                   James L. Morse, Associate Justice

                                   Denise R. Johnson, Associate Justice