Estate of Ladd v. Estate of Ladd

Annotate this Case

ESTATE_OF_LADD_V_ESTATE_OF_LADD.92-108; 161 Vt. 270; 640 A.2d 29

[Filed 14-Jan-1984]

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. 92-108

Estate of

William A. Ladd Supreme Court

On Appeal from
v. Chittenden Family Court

Estate of

Florence D. Ladd September Term, 1992

Amy M. Davenport, J., (final hearing)

Matthew I. Katz, J., (post-judgment motions)

Mary G. Kirkpatrick of Lisman & Lisman, Burlington, for plaintiff-appellee

Joseph S. Wool, Burlington, for defendant-appellant

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

GIBSON, J. The issue before the Court in this divorce action is
whether the death of a party during the nisi period abates the divorce and
nullifies the parties' agreement dividing the marital property. We hold
that the divorce is abated, but the agreement is enforceable independent of
the divorce order. Accordingly, we reverse the family court's refusal to
abate the divorce and its entry of an order nunc pro tunc making the decree
nisi absolute on the day before the husband died.
The parties, both now deceased, were married on September 26, 1986.
Florence Ladd left the marital residence in September 1990, and William Ladd

filed for divorce two months later. After several delays, the final hearing
was scheduled for July 10, 1991, but that morning the parties reached an
agreement disposing of their property and settling William's embezzlement
claims against Florence. After the agreement was finalized, the final
hearing was held on August 12, at which time the court accepted the
agreement and entered a decree nisi.
Neither party was present at the final hearing. William was in the
hospital, and the court allowed his sister to testify as to the grounds of
divorce. William's attorney asked the court to shorten the standard ninety-
day nisi period to thirty days due to William's ill health. Florence's
attorney objected to a shortened nisi period. Because the length of the
nisi period was in dispute, the court denied the request and issued the
final order. The order incorporated the settlement agreement and provided
that the nisi period would end ninety days later, on November 12, 1991.
William did not seek to appeal from the court's refusal to shorten the nisi
period.
William died on November 8, 1991. On November 12, the day the nisi
period was to expire, Florence filed a motion to strike the divorce action
on the ground that the action abated along with William's death prior to the
expiration of the nisi period. William's estate opposed the motion and
moved for an order nunc pro tunc backdating the final divorce decree to a
date prior to William's death. Another judge heard the motion and found it
impossible to discern from the record of the divorce hearing whether the
trial court had abused its discretion in denying the motion to shorten the
nisi period. Nevertheless, the court concluded that, given the
comprehensive settlement agreement and the seriousness of William's illness,

the request to shorten the nisi period should have been granted. Based on
this determination, the court denied Florence's motion to abate the divorce
and modified the divorce order, nunc pro tunc, to shorten the nisi period so
that it expired the day before William's death.
On appeal, Florence's estate contends that the court's decision should
be reversed because it contravenes long-established Vermont case law holding
that "nisi divorce decrees do not dissolve the marriages, and that the death
of either party before they become absolute, abates the suit and . . . has
no effect on the marital status." In re Hanrahan's Will, 109 Vt. 108, 128,
194 A. 471, 481 (1937). We agree that the court's decision denying
Florence's motion to abate the divorce must be reversed due to the death of
William during the nisi period, and that the nisi period could not be
backdated by the issuance of a nunc pro tunc order. Because the parties had
entered into a separation agreement, this does not end the matter, however.
In the interests of judicial economy, we will also address whether the
separation agreement survived the abatement of the divorce.
Section 554(a) of Title 15 provides that a divorce decree "shall be a
decree nisi and shall become absolute at the expiration of three months
from the entry thereof; but, in its discretion, the court which grants the
divorce may fix an earlier date upon which the decree shall become
absolute." In states like Vermont that provide for interlocutory divorce
decrees followed by a nisi period, the parties are considered to be married
throughout the interlocutory period. 2 H. Clark, The Law of Domestic
Relations in the United States { 15.8, at 108 (2d ed. 1987). Thus, "if one
of the parties dies during the interlocutory period, they are still married
and the survivor will inherit." Id. at 109; see, e.g., Keidel v. Keidel,

383 A.2d 264, 267 (R.I. 1978) (divorce action, including interlocutory
decree to partition real estate, abated upon death of party during nisi
period); Daly v. Daly, 533 P.2d 884, 885-86 (Utah 1975) (divorce decree,
including determination of property rights, became ineffective upon death of
party during nisi period). Vermont accepted this "well settled" rule long
ago. See In re Hanrahan's Will, 109 Vt. at 128, 194 A. at 481 (death of
either party before divorce becomes absolute abates divorce).(FN1)

The trial court cannot employ a nunc pro tunc order to change this law.
The purpose of a nunc pro tunc order is "to set the effective date of a
present order at a particular and appropriate time in the past, on the basis
that the correct entry was inadvertently or mistakenly departed from by the
court involved." In re Parizo, 137 Vt. 365, 367, 404 A.2d 114, 115 (1979);
see Annotation, Entering Judgment or Decree of Divorce Nunc Pro Tunc, 19
A.L.R.3d 648, 652 (1968) ("the ordinary ground justifying an entry of [a
nunc pro tunc] decree is that a divorce decree has actually been made or
rendered previously or the successful party is otherwise entitled to such a
decree, but entry of the decree has been omitted or delayed through
inadvertence or mistake, or the decree has otherwise not been properly
entered"). Although a nunc pro tunc order may be used to change the date of
the decree nisi from the date it was entered to the date it was announced or
issued by the court, it may not be used to shorten the statutory waiting
period retroactively. See Annotation, supra, 19 A.L.R. 3d {{ 7, 9, 10(a),
at 659-71 (cases cited therein); cf. Kern v. Kern, 67 Cal. Rptr. 802, 807,
(Ct. App. 1968) (nunc pro tunc order backdating final divorce decree upheld
where statute permitted entry of final judgment during interlocutory period
upon death of party).
Nor can the trial court employ a nunc pro tunc order to correct a
prior decision by another judge in the same court. See Koester v. Estate
of Koester, 693 P.2d 569, 573 n.2 (Nev. 1985) (nunc pro tunc order cannot
be used to correct judicial errors or omissions). In effect, the second
judge's nunc pro tunc order constituted an improper lateral review of the
prior judge's exercise of discretion in denying William's motion to shorten

the nisi period. See Economou v. Economou, 133 Vt. 418, 422, 340 A.2d 86,
88 (1975) ("The appellate process must proceed vertically, not sideways.").
Part of the court's reasoning in issuing the nunc pro tunc order was
that the parties' separation agreement would otherwise be abated along with
the divorce action. But that is not the case here. We conclude that the
parties' stipulated agreement is enforceable independent of the divorce
decree in which it was incorporated. Although this issue was not addressed
by the trial court, it was raised by the parties there, and, in any case, we
may construe the legal effect of a contract in the first instance in this
Court. See Vermont Nat'l Bank v. Chittenden Trust Co., 143 Vt. 257, 266-67,
465 A.2d 284, 290 (1983) (construction of contract terms is matter of law
rather than factual determination; therefore, this Court must review proper
legal effect of contract language for itself); In re Estate of Pickrell, 806 P.2d 1007, 1011 (Kan. 1991) ("The construction of a written instrument is a
question of law, and the instrument may be construed and its legal effect
determined by an appellate court.").
Before examining the instant agreement, we review the relevant law.
The death of a party to a contract does not necessarily terminate the
obligations stated in the agreement, unless those obligations are personal
in nature. 18 S. Williston, A Treatise on the Law of Contracts { 1945, at
75-76 (3d ed. 1978). Moreover, "[a] pretrial agreement to distribute
property is a contract, which the court can set aside only for grounds
sufficient to set aside a contract." Bendekgey v. Bendekgey, 154 Vt. 193,
197, 576 A.2d 433, 435 (1990); see Bruce v. Dyer, 524 A.2d 777, 786 (Md.
1987) ("general principles governing other types of contracts apply to
property settlement agreements between husband and wife"). Accordingly,

courts have held that the abatement of a divorce decree due to the death of
one of the parties during the nisi period does not render a settlement
agreement unenforceable simply because it was incorporated in the decree.
See Annotation, Separation Agreements: Enforceability of Provision Affecting
Property Rights upon Death of One Party Prior to Final Judgment of Divorce,
67 A.L.R.4th 237, 241, 245 (1989) (cases cited therein).
The critical inquiry is whether the parties intended the separation
agreement to be contingent upon the entry of a judgment -- either nisi or
absolute -- or to be effective from the date the agreement was executed.
Pavluvcik v. Sullivan, 495 N.E.2d 869, 872 (Mass. App. Ct. 1986). Although
the circumstances surrounding the settlement agreement may be a factor in
making this determination, the language of the agreement itself must be
examined first and foremost. Not surprisingly, courts have enforced
settlement agreements which expressly provided that they were conclusive
regardless of whether either party died before the divorce became final, see
In re Garrity's Estate, 156 P.2d 217, 220 (Wash. 1945), or that they were
not contingent upon the procurement of a divorce. See Roberts v. Roberts,
381 So. 2d 1333, 1334 (Miss. 1980).
But courts have also enforced settlement agreements independently of
divorce decrees when the agreements expressly provided that they were
enforceable against the personal representatives, heirs and assigns of the
parties. See, e.g., Bruce, 524 A.2d at 787 (courts have recognized that
death of spouse before final divorce decree does not, of itself, terminate
separation agreement, particularly where agreement binds parties' heirs and
assigns); Shutt v. Butner, 303 S.E.2d 399, 401 (N.C. Ct. App. 1983) (few
contracts are terminated by death in absence of explicit provision to

contrary; property settlement agreement held enforceable because of
provision making agreement enforceable against heirs and assigns). Courts
have also found settlement agreements enforceable, despite the lack of a
final divorce decree, when the agreements contemplated a comprehensive and
final settlement of the parties' financial relationship. See, e.g., Simpson
v. King, 383 S.E.2d 120, 122 (Ga. 1989) (provision in agreement expressed
parties' desire to settle all issues of alimony, property division, and
other matters arising out of their relationship); Pavluvcik, 495 N.E.2d at
872-73 (parties intended settlement agreement, which was comprehensive and
final settlement of their financial relationship, to be enforceable as of
date of order approving it).
In the present case, the stipulation constituted a final and
comprehensive settlement of all financial matters between the parties.
Further, the stipulation included provisions in which the parties agreed to
take all action necessary to carry out the agreement and to waive all rights
of inheritance arising from the marital relationship. The waiver provision
expressly applied to the parties' heirs and assigns. Finally, neither the
wife's estate nor any provision in the separation agreement suggests that
the agreement was dependent on the finality of the parties' divorce. Cf.
Pavluvcik, 495 N.E.2d at 874 ("In the absence of an express provision
stating otherwise, a separation agreement is usually held to survive a
subsequent divorce judgment incorporating its provisions."). Indeed, the
parties informed the trial court before the final hearing that they wanted
sums owed under the agreement paid before its incorporation into the divorce
order. We conclude that the husband's death abated the parties' divorce,
but did not terminate the separation agreement, which unambiguously

indicated the parties' intention that it stand independent of the divorce
decree. Therefore, the agreement survives the abatement of the divorce and
is enforceable in the probate court or in subsequent litigation between the
estates.
Reversed and remanded to the family court for dismissal of the divorce
proceeding.

FOR THE COURT:

________________________________________
Associate Justice

--------------------------------------------------------------------------------
Footnotes

FN1. We disagree with the dissent's conclusion that the 1990 amendment
to 15 V.S.A. { 554(b) was intended to overrule In re Hanrahan's Will, 109
Vt. 108, 128, 194 A. 471, 481 (1937). Prior to the 1990 amendment, { 554(b)
provided that the trial court could reopen a divorce case and hear
additional testimony at any time before the nisi period expired. This Court
interpreted the provision to mean that "in order to alter or set aside a
decree nisi under the statute, a hearing must be held and a new decree must
be made before the nisi period expires." Richwagen v. Richwagen, 149 Vt.
72, 75, 539 A.2d 540, 542 (1987) (citing Ford v. Ford, 125 Vt. 21, 24, 209 A.2d 316, 319 (1965)) (emphasis added). In response to those cases, the
Legislature amended subsection (b) to provide that a decree of divorce is a
civil judgment subject to the Rules of Civil Procedure, including the rules
regarding post-trial motions, and that the time from which any such motion
is filed "shall run from the date of entry of the decree of divorce and not
from the date the nisi period expires." The amendment further provided that
"[t]he court shall retain jurisdiction to hear and decide the motion after
expiration of the nisi period." This language evinces the Legislature's
desire to prevent situations, made possible by Richwagen and Ford, where an
appropriate amendment to a divorce decree is foreclosed solely because the
court took too much time in responding to a timely motion to amend.
Thus, rather than reflect the Legislature's dissatisfaction with the
lack of finality of divorce decrees, as the dissent states, the 1990
amendment simply embodies the Legislature's intention to overrule our prior
case law imposing a rigid finality on divorce matters subsequent to the nisi
period. Indeed, subsection (a) of { 554, which provides that a divorce
becomes absolute three months after the decree of divorce, remains intact;
the Legislature specifically rejected language that would have eliminated
nisi decrees altogether. See Sen. J. 145 (Feb. 14, 1990, Vt. Adj. Sess.);
House J. 985 (Apr. 27, 1990, Vt. Adj. Sess.). The fact that the Legislature
rejected an amendment that would have removed the nisi period entirely
suggests it accepted this Court's previous determination that divorce
decrees abate upon a party's death during the nisi period. See Ratepayers
Coalition of Rochester v. Rochester Elec. Light & Power Co., 153 Vt. 327,
330, 571 A.2d 606, 608 (1989).

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

No. 92-108

Estate of
William A. Ladd Supreme Court

On Appeal from
v. Chittenden Family Court

Estate of
Florence D. Ladd September Term, 1992

Matthew I. Katz, J.

Mary G. Kirkpatrick of Lisman & Lisman, Burlington, for plaintiff-appellee

Joseph S. Wool, Burlington, for defendant-appellant

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

MORSE, J., dissenting. The Court holds that a divorce is final only
when the nisi period is "absolute." If a party dies before then, the
divorce "abates" and is "nullified." Not only does this sound archaic, the
holding undermines the purpose of nisi decrees and is contrary to a recent
amendment to the statute governing them. I respectfully dissent.
The only Vermont precedent underpinning the Court's senseless result is
dictum in In re Hanrahan's Will, 109 Vt. 108, 128, 194 A. 471, 481 (1937)
("It is well settled that nisi divorce decrees do not dissolve the
marriages, and that the death of either party before they become absolute,
abates the suit and it has no effect on the marital status"), which reflects

a classic misunderstanding about the nisi decree. We should welcome this
opportunity to correct it.
The word "nisi" is Latin for "unless." Black's Law Dictionary 944 (5th
ed. 1979). A "nisi decree" is a judgment that will "stand as valid and
operative unless the party affected by it shall appear and show cause
against it, or take some other appropriate step to avoid it or procure its
revocation." Id. (emphasis in the original). See, e.g., Silverstein v.
Silverstein, 308 N.E.2d 773, 774 (Mass. App. Ct. 1974) (nisi period gives
interested party time to challenge decree's validity).
The nisi decree's purpose is to discourage divorces. Note,
Interlocutory Decrees of Divorce, 56 Colum. L. Rev. 228, 228 (1956). It
seeks to do this in two ways. First, and most obviously, it provides a
cooling-off period to encourage reconciliation. See, e.g., Commissioner of
Internal Revenue v. Evans, 211 F.2d 378, 380 (10th Cir. 1954) (nisi decree
encourages "a reunion of the parties -- a healing of the breach -- a period
during which the parties may become reconciled"). But also, the nisi
period seeks to prevent immediate remarriage. Interlocutory Decrees, supra,
at 228. The desire to remarry is assumed to be a primary motive for
divorce. Because a divorced person could easily evade one state's law
forbidding remarriage within a certain time period by remarrying in another
state, interlocutory, or nisi, divorce decrees were adopted to enforce the
policy of delaying remarriage. Id.
Obviously, dead litigants will not reconcile or remarry; therefore, no
prospective purpose is served by stopping the divorce. On the other hand,
policies concerning the finality of judgments and future reliance upon them
require that a divorce decree become absolute when one of the parties dies

before the nisi period ends. Parties to a divorce should be treated like
other litigants. Neither Hanrahan nor the precedents upon which it is
based address, in any reasoned way, why a person who has pursued a divorce
to judgment and never sought to alter that judgment should not be entitled
to rely on it.
Hanrahan rests on the formalistic notion that, because divorce is an
action to sever a personal relationship or status, the death of a party
"settle[s] the question of separation beyond all controversy and deprive[s]
the court of jurisdiction" over, not only the parties, but also the subject
matter of the action. Bushnell v. Cooper, 124 N.E. 521, 522 (Ill. 1919).
This Court has already departed from this rigid application of divorce
provisions. In Poston v. Poston, ___ Vt. ___, ___, 624 A.2d 853, 855
(1993), we recognized the doctrine of "divisible divorce," where all issues
incident to a divorce may be severed from the decision on marital status.
Even if, as the older cases suggest, death terminates the marriage status
and makes divorce unnecessary, there is no rationale for upsetting the
remainder of the divorce judgment, disposing of the parties' property.
Apart from my basic disagreement with case law interpreting the effect
of death during the nisi period, in 1990 the Legislature amended the statute
governing the nisi decree. 15 V.S.A. { 554(b) (effective June 4, 1990). In
my view, the amendment overruled In re Hanrahan's Will. Section 554(b) now
provides:
Either party may file any post-trial motions under the
Vermont Rules of Civil Procedure. The time within which
any such motion shall be filed shall run from the date
of entry of the decree of divorce and not from the date
the nisi period expires. The court shall retain juris-
diction to hear and decide the motion after expiration
of the nisi period. A decree of divorce shall consti-

tute a civil judgment under the Vermont Rules of Civil
Procedure.

Before this amendment, a divorce judgment could be reopened, abated,
or changed in any respect during the nisi period. Consequently, the judg-
ment could not become final. See Richwagen v. Richwagen, 149 Vt. 72, 75,
539 A.2d 540, 542 (1987) (court lacks subject-matter jurisdiction to decide
timely motion to amend under V.R.C.P. 52(b) after nisi period expires). The
Richwagen anomaly was fixed by the 1990 amendment. The amendment reflects
the Legislature's dissatisfaction with this lack of finality and, as a
remedy, directs that a divorce judgment be treated like any civil judgment.
At the time of this amendment, the Legislature considered dispensing with
the nisi period altogether but eventually decided to retain it. See 1989,
No. 227 (Adj. Sess.), { 1; Sen. J. 145 (Feb. 14, 1990, Vt., Adj. Sess.);
House J. 985 (Apr. 27, 1990, Vt., Adj. Sess.). Vermont is one of only a
small minority of jurisdictions that now require a nisi period. 2 H. Clark,
The Law of Domestic Relations in the United States { 15.8, at 108 (2d ed.
1987). The most reasonable explanation for keeping the nisi decree is the
traditional nisi purpose, leaving open a possibility for reconciliation.
To accomplish that purpose, it is neither necessary nor reasonable to
nullify the divorce when a party dies during the nisi period.
Consequently, the contract analysis undertaken in today's opinion to
avoid the absurd and obviously inequitable result engendered by not giving
effect to the divorce judgment is unnecessary. I presume the Court would
indulge in analogous reasoning if the divorce judgment had been judge-made
after a contested hearing rather than party-made in an uncontested hearing.
After all, regardless of whether the property division results from
litigation or stipulation, parties who have submitted themselves to the

jurisdiction of the court have agreed to be bound by the final divorce
judgment. If I am wrong, then further mischief shall surely be visited
upon unsuspecting litigants.
I would affirm the denial of the motion to abate. I am authorized to
say that Justice Johnson joins in the dissent.

_________________________________
James L. Morse, Associate Justice

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