Boiselle v. Boiselle

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BOISELLE_V_BOISELLE.90-321; 162 Vt. 240; 648 A.2d 388

[Opinion Filed June 24, 1994]

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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.

No. 90-321

Roberta A. Boisselle Supreme Court

On Appeal from
v. Chittenden Superior Court

Raymond N. Boisselle November Term, 1992

Alden T. Bryan, J.

Paul R. Morwood, South Burlington, for plaintiff-appellee

Mary P. Kehoe and Deborah Weiss of Saxer, Anderson, Wolinsky & Sunshine,
Burlington, for defendant-appellant

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

DOOLEY, J. On motion to modify by plaintiff, Roberta Boisselle, the
Chittenden Superior Court modified a divorce decree to amend a provision
dealing with the disposition of the family residence. Defendant, Raymond
Boisselle, appeals arguing that the court did not have the power to modify
the preexisting property award. We agree and reverse.
The parties were divorced on October 25, 1984. The court's order,
which was based on a stipulation, gave custody of the parties' minor child
to plaintiff and required defendant to pay $75 per week in child support,
with a cost of living adjustment provision. The provision critical to this
case gave plaintiff exclusive use and possession of the family home on North
Avenue in Burlington during the minority of the child. The order went on to
require that the property be sold when the child reached her eighteenth

birthday, with the proceeds to be split equally by the parties, and to
require that the parties share certain maintenance costs. The order also
distributed the available personal property and provided that neither party
would be entitled to alimony "now or permanently in the future."
Plaintiff moved to modify the order in June 1988, some three years
before the child was to turn eighteen. Some time after the divorce,
plaintiff developed a severe case of multiple sclerosis, which rendered her
unable to work. As a result, plaintiff's income fell to $680 per month that
she received from Social Security and a disability insurance policy.
Plaintiff requested that the order be changed to allow her to remain in
possession of the house, which she had modified to accommodate her
disability, throughout her life. At the time the court addressed the
modification question, the house was worth approximately $90,000, with an
outstanding mortgage balance of $17,000 and a monthly mortgage payment was
$202 per month.
Reasoning that V.R.C.P. 60(b)(5) allowed the court to prospectively
modify a judgment in proper circumstances and that changing the date of sale
of a house is a prospective modification, the court granted the motion and
postponed the sale until plaintiff's condition "requires her to live
elsewhere." The court justified its order on the unforeseen deterioration
of plaintiff's health and the absence of hardship on defendant. Defendant
appeals arguing that the court's order was an improper modification of a
final property award. We agree.
As the trial court found, 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. See Viskup v. Viskup, 149 Vt. 89, 90, 539 A.2d 554,
555-56 (1987). We have applied this principle to cases in which the timing
or manner of the transfer of property is in issue. For example, in Viskup,
defendant was required to pay a property award to his wife in three annual
installments. When defendant defaulted on the first installment, plaintiff
moved to modify the payment schedule to accelerate the obligation to pay the
entire amount. This Court held that in the absence of a provision allowing
for acceleration, the change in the payment schedule was an improper
modification of a property disposition. Id. at 91, 539 A.2d at 556. In
Robinson v. Robinson, a case similar to that now before us, we reversed a
modification order that extended the time in which the spouse awarded the
family home had to pay off an amount awarded to the other spouse as
settlement of the latter's property interest in the home. 130 Vt. 558, 562,
298 A.2d 556, 559-59 (1972). Although the modification did not change the
amount of payment, the change in the timing of payment was sufficient to
bring the case within the prohibition. Id. at 561, 298 A.2d at 558; see
also Clifford v. Clifford, 133 Vt. 341, 344-45, 340 A.2d 60, 62 (1975)
("adjustment of property rights accomplished by transfer of property and
payment of money over a long period" cannot be modified absent grounds for
modifying ordinary judgment).
The trial court here recognized the limitation on modification of
property disposition awards but found that grounds to modify a civil
judgment applied. Specifically, the court relied upon V.R.C.P. 60(b)(5),(FN1)

which allows relief from judgment when "the judgment has been satisfied,
released or discharged, or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable that the
judgment should have prospective application." The court found in the last
phrase the power to modify a judgment to the extent the modification
operates on the prospective application of the judgment and is required by
the equities of the situation. Thus, the court found it could, and did,
"change the prospective effect of that judgment to allow plaintiff to remain
in the house."
V.R.C.P. 60(b)(5) is identical to Federal Rule of Civil Procedure
60(b)(5), which implements the holding in United States v. Swift & Co., 268 U.S. 106 (1932), an equity case dealing with the modification of an
injunction. In Swift, the United States Supreme Court held that federal
courts have the power to revoke or modify an injunction which "has been
turned through changing circumstances into an instrument of wrong." Id. at
114-15. The Court distinguished between "restraints that give protection to
rights fully accrued upon facts so nearly permanent as to be substantially
impervious to change," which cannot be modified, and injunctions "that
involve supervision of changing conduct or conditions and are thus
provisional and tentative," which can. Id. at 114.
Our one case interpreting Rule 60(b)(5) is so dissimilar from this one
that it supplies little guidance. See J.L. v. Miller, 158 Vt. 601, 614 A.2d 808 (1992). The federal cases show that the primary significance of
Rule 60(b)(5) is with regard to injunctions, although its application is not
limited to equity actions. 11 C. Wright & A. Miller, Federal Practice &
Procedure { 2863, at 205 (1973); see also Kock v. Virgin Islands, 811 F.2d 240, 244 (3d Cir. 1987) (rule refers primarily to prospective effect of
equity decrees). That source is important because of the "basic principle
that an injunction does not create any vested rights for a plaintiff; it is
simply a remedy designed to vindicate pre-existing rights." Stewart v.
General Motors Corp., 756 F.2d 1285, 1291 (7th Cir. 1985). Building on this
principle, one court defined prospective application, the triggering
requirement of the rule, as follows:
Thus, the standard we apply in determining whether an
order or judgment has prospective application within the
meaning of Rule 60(b)(5) is whether it is "executory" or
involves "the supervision of changing conduct or
conditions," within the meaning of . . . Swift.

Twelve John Does v. District of Columbia, 841 F.2d 1133, 1139 (D.C. Cir.
1988). We can find no federal case that defines a judgment comparable to
the property distribution decree in this case as executory, subject to
modification under Rule 60(b)(5). Cf. Marshall v. Board of Educ., 575 F.2d 417, 425 (3d Cir. 1978) (judgment at law for damages is inherently final and
not subject to modification under Rule 60(b)(5)).
There are, however, a few state court cases involving the application
of civil rules modeled on F.R.C.P. 60(b)(5) to divorce property decrees.
Particularly instructive is Lloyd v. Lloyd, 533 P.2d 684 (Ariz. Ct. App.
1975),(FN2) in which a husband sought under the Arizona rule, numbered Rule
60(c)(5), to modify an order requiring him to pay his wife $6,000 in sixty
monthly installments of $100 each. The court held that the rule did not

apply to a lump sum payment, whether alimony or property, and whether
payable immediately in full or in installments, reasoning:
It seems that the type of final judgment to which
clause (5) of Rule 60(c) is most often applied is one
providing for injunctive relief. Other types of final
judgments may have a continuing effect and be subject to
modification in their prospective application, such as
continued enforcement of liens or a declaratory judgment
directed to matters in the future. However, where the
final judgment is an award of money, Rule 60(c)(5) would
not be applicable.

Id. at 685. Other courts presented with attempts to modify property
provisions using the state equivalent of F.R.C.P. 60(b)(5) have denied
relief, usually by reiterating the inability to modify a property
disposition provision. See Ferguson v. Olmsted, 451 P.2d 746, 749 (Colo.
1969) (denial of relief under Colorado equivalent of F.R.C.P. 60(b)(5)
affirmed because property decrees cannot be modified); McBride v. McBride,
739 P.2d 258, 261 (Idaho 1987) (property disposition not prospective);(FN3)
Smith v. Smith, 547 N.E.2d 297, 299-300 (Ind. Ct. App. 1989) (trial court
decision refusing to amend property disposition under Indiana equivalent of
F.R.C.P. 60(b)(5) affirmed because property awards based on stipulations
merged into decrees cannot be modified except as agreement prescribes or
unless parties later consent); cf. Foster v. Foster, 684 P.2d 869, 872
(Alaska 1984) (allowing modification under Rule 60(b)(6), although trial
court granted modification under Rule 60(b)(5), after concluding 60(b)(1)-
(5) did not apply).

We agree with the other courts that have considered the issue. The
property disposition involved a fixed distribution of assets that vested
rights in the parties. Plaintiff characterizes the issue as one of the
timing of payment of defendant's award, yet were we to adopt her position,
it would be entirely possible that defendant would never realize his
interest during his lifetime.
In order to allow modification, we must find that the property
disposition is executory, subject to change in response to changed
conditions. Our rule against modification of property dispositions,
applied to changes in timing of payment, is based fundamentally on the
principle that such orders are not executory and subject to change. Viewed
in this perspective, the application of Rule 60(b)(5) to this circumstance
is not an exception to our settled law on modification; it involves
overruling that law. We cannot endorse the use of Rule 60(b)(5) to modify
the divorce order to allow plaintiff to retain possession of the home.
Finally, we must consider whether we can uphold the trial court's
modification order on the basis that the underlying award of possession of
the home is a form of maintenance and not a property disposition. In
support of this argument, plaintiff points out that in her motion to modify,
she requested an award of spousal support.
A number of courts have, in appropriate circumstances, characterized
provisions granting one spouse possession of the home for a specific time as
child support or spousal maintenance and not as property dispositions. See
Duncan v. Duncan, 379 So. 2d 949, 952 (Fla. 1980); Kerr v. Kerr, 243 N.W.2d 313, 315 (Minn. 1976). As noted above, our precedents find that provisions
calling for the payment of money to the nonpossessory spouse for that

spouse's interest in the property are part of the property disposition.
See, e.g., Robinson, 130 Vt. at 561, 298 A.2d at 558. These precedents are
not inconsistent with a finding that temporary possession of the house is a
child support or maintenance award. For three reasons, however, we cannot
find that the provision in the original decree awarding possession to
plaintiff was a spousal maintenance provision.
First, the decree, which was based on a stipulation of the parties,
states specifically that neither party shall be entitled to "alimony, now or
permanently in the future." Thus, neither the parties nor the trial court
thought that the award of possession and use of the home was a maintenance
award.
Second, the right to possession was specifically limited to the period
of minority of the parties' child. Were we to characterize the award as any
kind of support, this limitation promotes a conclusion that the possession
of the house was an attribute of child support, in the nature of a
maintenance supplement while a child support obligation exists. See 15
V.S.A. { 661(a) (maintenance supplement is "to be paid while a child support
obligation" exists). It is not consistent with a characterization of the
right to possession as general spousal maintenance.
Third, extending the right to possession throughout plaintiff's life
greatly reduces defendant's property interest. As Robinson points out,
defendant may not have "any reasonable hope of enforcement of" his property
right. 130 Vt. at 562, 298 A.2d at 559. Even if we could characterize
plaintiff's right to temporary possession of the home as maintenance, an
unlimited extension of that possession necessarily affects the underlying
property rights.

Since the award of possession of the home to plaintiff was not
maintenance, it was error to modify the divorce order to extend that right
indefinitely.
Reversed and remanded.

FOR THE COURT:

Associate Justice

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Footnotes

FN1. Although the case arose before the effective date of the Vermont
Rules for Family Proceedings, the result would be the same under those
rules. See V.R.F.P. 4(a) (Vermont Rules of Civil Procedure apply except as
otherwise provided).

FN2. The divorce law in effect when Lloyd was decided has since been
superceded by statute. See Fye v. Zigoures, 562 P.2d 1077, 1079 (Ariz. Ct.
App. 1977). Nonetheless, the Lloyd court's treatment of the Rule 60 remains
relevant to our discussion here.

FN3. In an earlier case, Rudd v. Rudd, 666 P.2d 639, 640 (Idaho 1983),
the Idaho Supreme Court concluded that an unimplemented part of a property
disposition is prospective and subject to modification. The case is
dissimilar to this one, however, because neither party had followed the
original property disposition order, and both parties sought a new order.

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Dissenting

No. 90-321

Roberta A. Boisselle Supreme Court

On Appeal from
v. Chittenden Superior Court

Raymond N. Boisselle November Term, 1992

Alden T. Bryan, J.

Paul R. Morwood, South Burlington, for plaintiff-appellee

Mary P. Kehoe and Deborah Weiss of Saxer, Anderson, Wolinsky & Sunshine,
Burlington, for defendant-appellant

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

MORSE, J., dissenting. I do not agree with the Court's assumption
that spousal maintenance in this case could not, under any circumstances, be
awarded under 15 V.S.A. { 758 (modification of maintenance). Should spousal
maintenance be forever barred if it is waived or not reserved in the divorce
judgment? I do not think so. The relevant Vermont statutes, and the policy
underpinning them, support relief in this case. I respectfully dissent.
The issue of maintenance is governed by 15 V.S.A. { 752, which gives
the family court discretion to award maintenance from one spouse to the
other upon a showing of certain criteria. After a divorce, 15 V.S.A. { 758
allows the court "upon a showing of a real, substantial, and unanticipated
change of circumstances" to "annul, vary or modify a judgment relative to

maintenance." This discretionary authority may be exercised "from time to
time," depending on how and to what degree circumstances vary. Id.
In my view, the substance of the family court's modification in this
case was authorized by the plain meaning of { 758. The initial "judgment
relative to maintenance," which in part stated, "Neither party shall be
entitled to alimony, now or permanently in the future," was modified to
provide the wife use of the former marital residence. While the
modification did not require the payment of money, the use of the home was
its functional equivalent.
The facts of this case and the legal criteria demonstrating the wife's
need for maintenance are a perfect fit. The only argument against treating
this case as one for maintenance is the form of the original judgment, which
characterized as a property distribution the need of the wife to use the
home. The Court's three rationales denying the wife relief boil down to a
"So what?" A mere change of label from property distribution to alimony in
the divorce judgment would have, under the Court's view, changed the outcome
of this case. I demur from the Court's technical approach.
No Vermont case prohibits the award of maintenance here. Vermont
precedents like Loeb v. Loeb, 118 Vt. 472, 483-86, 114 A.2d 518, 526-28
(1955) (only existing maintenance in foreign judgment may be modified), and
Grant v. Grant, 136 Vt. 9, 14, 383 A.2d 627, 629-30 (1978) (same) are not
impediments. They deal with foreign divorces and must be read in conjunction
with Poston v. Poston, ___ Vt. ___, ___, 624 A.2d 853, 857, cert. denied,
114 S. Ct. 66 (1993) (maintenance action may be pursued in Vermont after
foreign divorce not providing for maintenance).

As noted, Loeb, Grant, and Poston all address whether a Vermont court
may award maintenance after a foreign court has granted a divorce without
making a maintenance provision. In Loeb, when husband obtained a "quickie"
divorce in Nevada without any provisions for alimony, wife brought an action
in Vermont and obtained support. The Court held, under a predecessor
statute to 15 V.S.A. { 752, the then statutory authority for granting
alimony, that alimony was an incident of divorce and that in the absence of
an action granting divorce, trial courts had no jurisdiction to order it.
Id. at 484-85, 114 A.2d at 526-27. In addition, no independent action for
alimony was available at common law. Id. at 486, 114 A.2d at 527.
In Poston, we in effect overruled Loeb, holding that termination of a
marriage did not automatically bar a later separate maintenance award. ___
Vt. at ___, 624 A.2d at 857. We interpreted 15 V.S.A. { 752, the current
statute authorizing maintenance, differently than the Court interpreted its
predecessor in Loeb, and held that the language limiting maintenance to
"spouse" did not preclude maintenance after divorce. Id. at ___, 624 A.2d
at 856-57. We recognized that "the law concerning the award of maintenance
has not remained stagnant since the Loeb decision" and joined the majority
of states that allow an independent suit for maintenance after a foreign ex
parte divorce. Id. at ___, 624 A.2d at 857.
I recognize that in contrast to the rule on foreign divorces, the
general rule on domestic divorce orders containing no maintenance provisions
is that spouses are foreclosed from making later maintenance requests unless
there is an express reservation of the issue in the divorce order. See,
e.g., Benevidez v. Benevidez, 660 P.2d 1017, 1020 (N.M. 1983); Becker v.
Becker, 262 N.W.2d 478, 483 (N.D. 1978). This rule is based on the theory

that the divorce court no longer has jurisdiction of the maintenance issue
once the divorce is final. In several states, it has led family law practi-
tioners to seek nominal maintenance awards in every case in order to
reserve the issue. See, e.g., McNally v. McNally, 516 So. 2d 499, 502, 503
(Miss. 1987) (urging trial courts to reserve maintenance issue in every case
it is not awarded to avoid this ruse).
An explicit reservation of the maintenance issue, however, ought not be
necessary to guarantee jurisdiction. See Cody v. Cody, 154 P. 952, 955
(Utah 1916) (every divorce decree should be treated as if maintenance issue
had been reserved). Rather, the financial aspects of the divorce order
should be seen as an integrated whole designed to provide the fairest
complete resolution of all the issues for both parties. It is the divorce
judgment, of which maintenance is one aspect, that parties seek to modify.
Compare 15 V.S.A. { 758 ("court may from time to time annul, vary or modify
a judgment relative to maintenance" upon a showing of changed
circumstances) with the language of the prior version of this statute
analyzed in Grant, 136 Vt. at 12, 383 A.2d at 629 ("After a decree for
alimony . . . the court may revise and alter its decree from time to time .
. . respecting the amount of such alimony . . . ."). Nothing in { 758
suggests that, merely because the divorce judgment is silent on maintenance,
it cannot be modified with respect to maintenance. See Kinsman v. Kinsman,
748 P.2d 210, 213-16 (Utah Ct. App. 1988) (Jackson, J., concurring)
(construing Utah's divorce modification statutes to allow maintenance to be
awarded at modification because court has continuing jurisdiction over
divorce decree and that decree is only res judicata as to circumstances as

they exist at the time of divorce, not as to changed circumstances requiring
further adjudication).
I find no meaningful distinction that would allow a separate
maintenance action after a foreign divorce but not allow modification of a
domestic one or that would allow modification when maintenance is initially
awarded in any amount but not when maintenance is absent from the judgment.
If maintenance was omitted from the divorce judgment because, for example,
the wife did not ask for it or the husband lacked ability to pay, and if
her needs later become pressing and he is then able to pay, then the wife
should be able to bring an action to receive an appropriate sum. See 2
Clark, supra, { 17.4, at 244; Reynierson v. Reynierson, 303 S.W.2d 252, 253,
254 (Ky. 1957) (maintenance may be awarded after divorce judgment where
failure to do so would cause a miscarriage of justice). Husband's reliance
on the divorce judgment, relevant to the equities between the parties, can
be taken into account. 2 Clark, supra, { 17.4, at 244.
Supporting the no-maintenance-after-divorce rule is the policy of
finality. Each spouse knows that the marriage is terminated and can plan
accordingly without the threat of unexpected financial demands from an ex-
spouse. Equally important policy considerations, however, may weigh in
favor of modification. If wife here had received even token maintenance at
the outset, there would be no doubt that she could return to court, argue
changed circumstances, and receive a modification. The right to maintenance
-- especially in long-term marriages where significant life choices have
been made in reliance on the marriage -- should not rest on serendipity,
whether, for example, a serious medical condition or an inability to
maintain employment becomes known the day before the divorce judgment or the

day after. By creating a rule that bars future maintenance, we encourage
spouses to needlessly litigate this issue as the only avenue to insure
against future change. Similarly, trial courts give maintenance in a
doubtful case in order to keep jurisdiction over the issue. See, e.g.,
Henry v. Henry, No. 92-631, slip op. at 1 (Vt. May 4, 1994) ($1-a-year
maintenance provided because employment future for one spouse seemed
doubtful).
My proposed approach would not upset the reasonable expectations of the
potential obligor of a long-term marriage. In Klein v. Klein, 150 Vt. 466,
473, 555 A.2d 382, 387 (1988), we adopted the view that maintenance is
intended to offset the hardships of divorce, that "'having entered one of
the strongest and most fundamental relationships known to the law, [married
persons] must continue to bear its financial burden where [they] can
reasonably do so and where it is necessary in order to prevent a relatively
greater hardship'" to the less financially secure spouse. Id. (quoting 2
Clark, supra, { 17.5, at 254-55). Society is, of course, willing to help
offset that hardship in appropriate cases. But the parties who chose the
marriage and arranged their lives around its benefits should be the first to
absorb its burdens.
I would affirm.

____________________________
Associate Justice

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