Mayo v. Mayo
Annotate this Case
Mayo v. Mayo (99-432); 173 Vt. 459; 786 A.2d 401
[Filed 26-Sep-2001]
ENTRY ORDER
SUPREME COURT DOCKET NO. 1999-432
NOVEMBER TERM, 2000
Jodi Mayo } APPEALED FROM:
}
}
v. } Lamoille Family Court
}
}
Michael Mayo } DOCKET NO. 173-12-97 Ledm
In the above-entitled cause, the Clerk will enter:
Defendant Michael Mayo appeals the Lamoille Family Court's finding of
contempt of court and order for sanctions which resulted in the
modification of his and plaintiff Jodi Mayo's stipulated final divorce
order. Defendant claims (1) plaintiff's motion to amend the stipulated
final divorce order was untimely as beyond the one year time limit for
modification of court orders under V.R.C.P. 60(b) when the grounds for
modification are based upon subsection (3) of that rule; (2) plaintiff
failed to allege a real, substantial and unanticipated change in
circumstances when she sought modification of the spousal maintenance
agreement contained within the stipulated final divorce order; (3) the
court lacked jurisdiction to modify the stipulated final divorce order in a
contempt proceeding; (4) the court's contempt sanction modifying the
property settlement portion of the stipulated final divorce order was
reversible error; and (5) the court's opinion on contempt is not supported
by adequate findings of fact, and the findings relied upon are clearly
erroneous. We agree that the court's finding of contempt was erroneous,
and that the sanctions imposed resulted in an impermissible modification
of the stipulated final divorce order, and accordingly reverse.
On July 31, 1998, plaintiff and defendant filed a stipulated final
divorce order which the family court accepted and entered that same day.
The order provides in part that the parties list the marital home for
sale, and upon its sale distribute 55% of the sale proceeds to plaintiff
and 45% to defendant. Defendant was awarded possession of the home until
it sold. The order also provides that defendant pay plaintiff spousal
maintenance for five years, commencing on August 1, 1998 in the amount of
$1,000 per month for one year, then decreasing to $750 per month for the
next two years, and to $500 per month for the final two years.
On January 22, 1999, the family court heard defendant's motion to
modify the final divorce order, as well as plaintiff's objection to the
motion and her request to enforce the final order. At the hearing, the
judge recognized that both parties were at fault for the confusion and
conflict that had arisen between them in this contentious divorce, and
that they had been antagonizing each other to the detriment of their
children. The judge noted that the defendant had been intentionally late
in paying spousal maintenance to plaintiff, and that, to rectify the
situation, "the first thing [defendant] ought to do is he ought to pay the
alimony on time each and every month, together with the child support."
At the end of this discussion, the judge addressed defendant's counsel and
stated "I don't
think you need an order."
On February 17, plaintiff signed and then filed a motion to hold
defendant in contempt, claiming that defendant was in violation of the
court's January 22 "order" (FN1) that he pay the monthly maintenance and
child support on time. Plaintiff alleged that at that time, defendant was
in arrears $850 in maintenance and $31.64 in child support payments. In
her motion plaintiff sought punitive damages of $5,000 payable at the time
of the sale of the home, if not sooner, attorney's fees, and interest on
the late maintenance and support payment amounts.
A hearing was held on this motion on April 2, and on June 22 the court
filed its order finding defendant in contempt. At the hearing, the court
stated to the parties that "the contempt process is not one for reworking
the original [divorce] order." In its order on the contempt charge, the
court stated that defendant had not kept up on his monthly payments since
the final divorce order had been issued and that defendant had testified
to this failure, so there was no question whether he had violated the
court's order. The court identified the issue before it as whether
defendant had shown that he does not have the ability to make the required
payments. It found that he did not have sufficient income to make the
required support payments when the stipulation was presented to the court,
and noted that defendant had testified at the April 2 hearing that, after
the stipulated final divorce order was entered, his income did not change
from its previous level. Therefore, the court concluded, defendant did
not act in good faith when he signed the stipulation, and that in failing
to make his required payments to plaintiff he acted in willful violation
of the stipulated final divorce order. A hearing was scheduled for August
6 to determine "the appropriate means of ensuring compliance with the
court's order."
On August 5, defendant filed a "memorandum regarding sanctions
hearing" wherein he notified the court that he was then current on his
child support and maintenance obligations, and suggested the creation of
an escrow account to guard against future arrearages. On August 11,
plaintiff submitted a "memorandum regarding sanctions" which requested
different sanctions than the punitive damages and interest originally
sought in her motion. Rather, while she still sought attorney's fees, she
asked the court to revise the property and maintenance settlements,
absolving defendant from all future maintenance payments and awarding her
possession and full ownership
of the marital home. On September 3, the court issued its order
sanctioning defendant for his contempt. The court granted plaintiff's
request and ordered defendant to vacate the home and convey his interest
to plaintiff. Defendant was to be released from owing plaintiff any future
maintenance payments from August 1, 1999 forward. Plaintiff was also
awarded $2,500 in attorney's fees. This order was followed by an amended
final order wherein the court used its "equitable powers" to set aside the
parties' stipulated final order of divorce. This appeal followed.
Defendant begins his challenge to the proceedings below by assailing
the timeliness of the motion to modify the property settlement, claiming
that plaintiff's motion to amend the final order was untimely because it
was made more than one year after the entry of the final divorce order.
See V.R.C.P. 60(b)(3) (motion for relief from judgment or order, if based
on fraud, must be made not more than one year after the judgment or order
was entered). In plaintiff's August 11 "memorandum regarding sanctions,"
she argued that Rule 60(b)(3) could provide a means by which the property
settlement could be revised, based upon "fraud, misrepresentation or
misconduct." Plaintiff offered that "[c]onsidering all of these factors,
plaintiff requests that the court revise the property settlement in such a
way that defendant may be absolved from all future maintenance payments to
plaintiff, and plaintiff may move back into the homestead residence with
the children, and be awarded full possession and ownership of the
residence." This constituted the first time plaintiff sought to modify
the final order or raised any claim of fraud.
The procedure for modifying a property settlement arising from a
divorce proceeding is well settled. "[T]he [family] 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, 162 Vt. 240, 242, 648 A.2d 388, 389
(1994) (citing Viskup v. Viskup, 149 Vt. 89, 90, 539 A.2d 554, 555-56
(1987)). The rules providing for relief from divorce decrees are
contained in V.R.C.P. 60, which provides generally for relief from civil
judgments. When the relief sought is based upon allegations of fraud,
misrepresentation, or other misconduct of an adverse party, as was alleged
by plaintiff here, the relief must be sought within one year of the entry
of the judgment or order at issue. V.R.C.P. 60 (b)(3). The relief sought
by plaintiff here was presented to the court more than one year after the
entry of the order she sought to revise, the stipulated final divorce
order. As such, her motion to revise the stipulated final divorce order
was untimely, depriving the court of the ability to grant her motion.
Defendant next argues the court erred in modifying the maintenance
award. Modification of a spousal maintenance award requires "a showing of
a real, substantial, and unanticipated change of circumstances." 15 V.S.A.
ยง 758; see also Gil v. Gil, 151 Vt. 598, 599, 563 A.2d 624, 625 (1989)
(noting that such showing is a "jurisdictional prerequisite"). The burden
of establishing that such a change has taken place is on the party seeking
modification. Gil, 151 Vt. at 599, 563 A.2d at 625. A party's being
found in contempt of an existing maintenance order does not necessarily
give rise to the conclusion that there has also been a real, substantial,
and unanticipated change in circumstances. The court made no finding that
such a change in circumstances had taken place. Nor has plaintiff, who
bears the burden of proof on this issue, offered that such a change has
occurred. Therefore, it was incorrect for the court to modify the
maintenance agreement.
Defendant next challenges the finding of contempt, claiming that the
findings of fact in support of the contempt finding are clearly erroneous.
When reviewing a trial court's finding of contempt, "we will not disturb
the judgment unless the court's discretion was entirely withheld or
was exercised on grounds clearly untenable." Vermont Women's Health Ctr.
v. Operation Rescue, 159 Vt. 141, 147, 617 A.2d 411, 414 (1992) (citation
and internal quotations omitted); see also V.R.C.P. 52(a)(2) (when
reviewing a trial court's findings of fact, we will not set them aside
unless they are clearly erroneous). We review a trial court's findings of
fact in a light most favorable to the prevailing party, disregarding
modifying evidence, with the burden on the appellant to show that there is
no credible evidence to support the finding. Mullin v. Phelps, 162 Vt.
250, 260, 647 A.2d 714, 720 (1994). "[W]e will uphold trial court
findings as long as there is substantial evidence to support them although
they are contradicted by credible evidence," and we rely upon the
factfinder's weighing of the evidence. Vermont Women's Health Ctr., 159
Vt. at 147, 617 A.2d at 414.
In civil contempt proceedings where questions regarding defendant's
financial ability to comply with a court order are raised, "the court must
find from the evidence that the defendant not only refused to pay but also
that he was under a present duty to pay and had the ability to make the
ordered payments." Steele v. Steele, 142 Vt. 112, 114, 453 A.2d 400, 401
(1982)(internal citations and punctuation omitted). "[C]ontempt by its
very nature is inapplicable to one who is powerless to comply with the
court order. It would be utilized against only that person who, being able
to comply, contumaciously disobeys, or refuses to abide by, the court
order." Spabile v. Hunt, 134 Vt. 332, 334-35, 360 A.2d 51, 52
(1976)(citation omitted). "In cases of noncompliance due to a claimed
financial inability, the court must find a present ability to pay before
the defendant may be found in contempt." Hunt v. Hunt, 162 Vt. 423, 436,
648 A.2d 843, 853 (1994). We are mindful that the burden is on the
defendant to establish that he has the inability to pay, rather than on the
plaintiff to show that defendant has a present ability to pay. Russell v.
Armitage, 166 Vt. 392, 401, 697 A.2d 630, 636 (1997) (citing Spabile, 134
Vt. at 335, 360 A.2d at 52).
The court found that at no time after the final divorce order was
entered did the defendant have the financial ability to meet his support
obligations to plaintiff. Defendant informed the court that his
post-stipulation inability to pay was the result of several unanticipated
events, including the lack of expected growth in his propane business
attributed to a mild winter, his inability to borrow against his equity in
the marital home caused by plaintiff's refusal to permit such borrowing,
the failure of the home to sell soon after going on the market, and his
incurring greater-than-anticipated child care expense after one of their
sons began living with him on a full-time basis, rather than part-time as
provided in the stipulated final divorce order. Defendant admitted that he
had made an error in judgment when calculating his financial abilities for
purposes of the divorce settlement, attributing this error to the stress
he was undergoing as a result of this highly emotional divorce. While we
recognize that defendant had a role in the crafting of the stipulated
divorce order which contained the support schedule he was unable to adhere
to, his inability to pay has not been shown to be an attempt to disobey or
otherwise avoid the order. Mistaken judgment, without any suggestion of
deceit, cannot be the basis for a finding of contempt. As the court found
a present, as well as past, inability to pay, it recognized that the
defendant was powerless to adhere to the terms of the order of which he
was found to be in contempt. Therefore, the finding of contempt was
clearly erroneous. See Spabile, 134 Vt. at 334-35, 360 A.2d. at 52.
Notwithstanding our holding that the court erred in its finding
defendant in contempt, we also address defendant's claim that the court
erred in ordering the sanction of conveying defendant's interest in the
marital property to plaintiff and otherwise modifying the stipulated final
divorce order. We have on numerous occasions recognized the coercive
nature of the civil contempt mechanism, which, in contrast to criminal
contempt, focuses not on punishment but on compelling compliance
with a preexisting court order. Sheehan v. Ryea, __ Vt. __, __, 757 A.2d 467, 468 (mem.) (2000); see also Russell,166 Vt. at 399, 697 A.2d at 636;
Spabile, 134 Vt. at 334-35, 360 A.2d at 52. "[C]ivil contempt penalties
are assessed to coerce the defendant to do some act ordered by the court
for the benefit or advantage of the opposite party." Town of Hinesburg v.
Dunkling, 167 Vt. 514, 526, 711 A.2d 1163, 1170 (1998) (internal
quotations omitted). The scope of civil contempt sanctions is limited to
"compensatory fines or coercive sanctions" such as imprisonment for an
indeterminate period. Sheehan, __ Vt. at __, 757 A.2d at 468 (citation
omitted). Such fines or sanctions must similarly be "purgeable, i.e.,
they must be capable of being avoided by defendants through adherence to
the court's order." Id. (citation omitted).
The family court's use of the contempt process in this case defeated
these purposes. First, in altering the preexisting final divorce order,
the court made it impossible for defendant to comply with the order of
which he was found to be in contempt. Defendant was not coerced into
complying with the original order-he was compelled to act, to his
detriment and in plaintiff's favor, in a manner contrary to, rather than
in accordance with, the original order. The modification of the terms of
the original order also made its enforcement impossible. Further, the
sanctions imposed were not purgeable, as there was no means by which the
defendant could comply with the underlying order upon which the contempt
finding was based. None of the purposes to be served by contempt
sanctions were served here. For the aforementioned reasons, modification
of the property distribution award is not a proper sanction in this civil
contempt proceeding.
The finding of contempt and order for sanctions are reversed.
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Dissenting
MORSE, J., dissenting. I dissent. The court's opinion signals
procedural trouble for divorced parties who are not receiving their due
under a judgment. The majority opinion severely limits the options for
addressing a request to be assured maintenance - a request, by the way, the
court finds not unreasonable, yet makes all but impossible to attain, given
the amount in controversy.
The facts acknowledged by the court, but not given the weight the
standard of review demands, are that defendant-husband paid plaintiff-wife
maintenance "intentionally late" and stipulated to maintenance payments he
could not make as the result of bad faith. In determining that husband
entered into the agreement in bad faith, the court determined his excuses
for agreeing to maintenance payments he was financially incapable of
meeting unsatisfactory. The court consequently ordered the property
division modified and eliminated maintenance to remedy the husband's bad
faith and keep the parties from future litigation over his recalcitrance in
paying maintenance.
I do not agree that the court's findings are clearly erroneous.
Husband had promised to pay maintenance in return for a share in the
equity in the marital house, knowing he would be able to pay only a
portion of it. He admitted as much. The court's finding that he acted in
bad faith is supported by the evidence. Contempt is the proper remedy.
Further, I do not agree with the court's approach, which makes
modification of the property distribution off-limits as a remedy under the
contempt power. While I acknowledge that this Court has previously held
that modification of a property settlement is not available as a sanction
for contempt, Viskup v. Viskup, 149 Vt. 89, 91, 539 A.2d 554, 556 (1987),
I believe that case was
wrongly decided. While a property decree should generally be considered
final, in cases of ongoing noncompliance with a divorce order, it makes
far more sense to modify the parties' legal relationship to ensure that
the party wronged is made whole than to imprison the debtor until
maintenance is paid and repeat the process over again and again when
husband's recalcitrance returns.
Under the family court's broad equitable powers to remedy husband's
bad faith in deceiving his wife (and the court) when entering into the
divorce settlement, it may order relief short of imprisonment or other
coercive measures. See In re C.W., 169 Vt. 512, 517, 739 A.2d 1236, 1240
(1999) ("The power, in particular, to punish disobedience to judicial
orders is regarded as essential to ensuring that the Judiciary has a means
to vindicate its own authority.") (internal citation and punctuation
omitted). That should include the power to redistribute the property
within the parties' control to remedy the contempt, not only for the short
term, but also to prevent its recurrence in the long term.
I would affirm.
Dissenting: BY THE COURT:
___________________________________ _______________________________________
James L. Morse, Associate Justice Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
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Footnotes
FN1. The rule for the creation of a valid court order is contained in
V.R.C.P. 58, which requires that for an entry of judgment to be valid, the
presiding judge must approve and sign it, and it must then be entered by
the clerk. Furthermore, any judgment will be effective only when it is
entered properly. See V.R.C.P. 58.; see also V.R.C.P. 79 (a) (delineating
procedure for clerk entry of court orders); Baker v. Town of Goshen, 169
Vt. 145, 149-50, 730 A.2d 592, __ (1999) (recognizing requirement of a
signed judgment). The "order" plaintiff claims defendant violated (the
oral statement by the judge in the January 22 hearing) was never reduced to
writing, approved, signed, or entered by the court-nor, judging by the
judge's own statements, did he ever intend there to be an order resulting
from that hearing. Therefore, the statements made did not constitute a
valid court order, and defendant's failure to abide by those statements did
not place him at risk of being found in contempt of court. The original
final divorce order, however, was properly entered by the court, and
could, therefore, properly serve as a basis for a charge of contempt. It
set forth the monthly payment schedule for alimony, which all agree
defendant had failed to meet in a timely manner.
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