Boiselle v. Boiselle

Annotate this Case
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
 
------------------------------------------------------------------------------
                               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.

------------------------------------------------------------------------------
                               Dissenting



 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.


      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