Boisclair v. Boisclair

Annotate this Case
Boisclair v. Boisclair (2003-211); 176 Vt. 646; 852 A.2d 617

2004 VT 43

[Filed 12-May-2004]

                                 ENTRY ORDER

                                 2004 VT 43

                      SUPREME COURT DOCKET NO. 2003-211

                              MARCH TERM, 2004

  Lorie Boisclair	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Lamoille Family Court
                                       }	
  Daniel Boisclair	               }
                                       }	DOCKET NO. 186-11-01 Ledm

                                                Trial Judge: Edward J. Cashman

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Husband Daniel Boisclair appeals from the family court's
  final divorce order.  He argues that the court erred in (1) distributing
  the marital property, (2) awarding spousal maintenance, and (3) awarding
  parent-child contact with the restriction that visits take place in
  Vermont.  We affirm the parent-child contact award, reverse and remand the
  distribution of the marital property, and remand the spousal maintenance
  award.

       ¶  2.  Husband and wife were married in 1994.  They have two
  children, Daniel, who is seven years old, and Lucas, who is two years old. 
  Husband is twenty-eight years old and lives in Watervliet, New York where
  he is employed as a union painter.  Wife is thirty-one years old and
  provides day care services out of her Vermont home.  The parties separated
  in 2001, and wife initiated divorce proceedings.  During the divorce
  hearing, the parties reached an agreement regarding the distribution of the
  marital assets and liabilities.  They agreed that wife should keep the
  marital home, valued at $45,000, and she would be solely responsible for
  paying the $34,000 mortgage as well as a $6,000 medical lien on the
  property.  The court notified the parties that it found this agreement
  inequitable and would likely reject it.  The court provided the parties
  with an opportunity to establish that their agreement was fair. 

       ¶  3.  The court issued its final divorce order in February 2003. 
  It awarded wife the marital home but rejected the parties' proposed
  distribution of debts associated with the property.  The court ordered wife
  to bear primary responsibility for the payment of the mortgage but it did
  not require her to hold husband harmless should she be unable to maintain
  payment of the joint debt.  The court also ordered husband to pay the
  $6,000 lien attached to the property, which stemmed from medical treatment
  that he had received.  The court determined that husband should pay wife
  $500 per month in maintenance for at least eight years.  Finally, the court
  awarded father visitation with the children every weekend and specified
  that, unless otherwise agreed, the contact would occur in Vermont rather
  than New York.  Wife filed a motion to amend the judgment, asking the court
  to set a schedule for husband's repayment of the $6,000 lien and the court
  amended its order accordingly.  Husband appealed.
   
       ¶  4.  Husband first argues that the court erred in rejecting the
  parties' agreement regarding the distribution of debts associated with the
  marital home.  We agree.  The trial court is authorized to equitably divide
  and assign marital property, and it may consider various statutory factors
  in making its decision.  Cabot v. Cabot, 166 Vt. 485, 500, 697 A.2d 644,
  654 (1997); 15 V.S.A. § 751.  The court has broad discretion in considering
  these factors, and we will uphold its decision unless its discretion was
  abused, withheld, or exercised on clearly untenable grounds.  Semprebon v.
  Semprebon, 157 Vt. 209, 215, 596 A.2d 361, 364 (1991).  Nevertheless, the
  trial court's "discretion is narrowed . . . where the parties have made an
  agreement to distribute all or part of their property."  Damone v. Damone,
  172 Vt. 504, 511, 782 A.2d 1208, 1214 (2001) (internal quotation marks and
  citation omitted). 
   
       ¶  5.  We have a strong policy favoring voluntary agreements entered
  into by divorcing parties to settle the disposition of marital property.  
  Bendekgey v. Bendekgey, 154 Vt. 193, 197, 576 A.2d 433, 435 (1990).  When
  distributing the marital property, the "trial court should give great
  weight to any agreements between the parties."  Lewis v. Lewis, 149 Vt. 19,
  22, 538 A.2d 170, 172 (1987).  Pretrial agreements are contracts, and as
  such they are presumed to be fair, formal, and binding.  Damone, 172 Vt. at
  511, 782 A.2d  at 1214.  Thus, we have previously held that they can be set
  aside only for grounds sufficient to set aside a contract: fraud,
  unconscionable advantage, impossibility of performance, hampering
  circumstances beyond the expectations of the parties, collusion, or duress. 
  Bendekgey, 154 Vt. at 198, 576 A.2d  at 436; Burr v. Burr, 148 Vt. 207, 209,
  531 A.2d 915, 917 (1987).  Further, the record must demonstrate a
  compelling reason for the court not to accept the parties' pretrial
  agreement.  Kanaan v. Kanaan, 163 Vt. 402, 413, 659 A.2d 128, 135 (1995).

       ¶  6.  Here, the parties informed the court that they had come to a
  verbal agreement as to the  property division.  Pursuant to the proposed
  agreement, wife would get the marital home subject to the outstanding
  mortgage and husband's medical lien.  After reviewing its terms, the court
  gave the parties notice that it was having trouble with the equity of the
  parties' agreement, stating, "We don't think we are going to accept it." 
  The court explained that the marital estate had a very low value and the
  proposed agreement did not appear to take mother's contribution as a
  homemaker into account.  The court also expressed concern that the parties'
  minor children would suffer the consequences of wife's assumption of the
  debt.  The court allowed the parties the opportunity to present evidence as
  to why their agreement was fair.  The court ultimately rejected the
  agreement, relying instead on the factors set out in 15 V.S.A. § 751 to
  divide the marital property.  In so doing, the court abused its discretion.
        
       ¶  7.  In this case, none of the established grounds to reject a
  pretrial agreement are present.  See Burr, 148 Vt. at 209, 531 A.2d  at 917
  (trial court may reject pretrial agreement when there is evidence of fraud,
  unconscionable advantage, impossibility of performance, hampering
  circumstances beyond the expectations of the parties, collusion, or
  duress).  Both parties entered into the agreement voluntarily, and the fact
  that both were represented by counsel militates against findings of
  unconscionable advantage.  There is no evidence that the parties were
  pressured to reach an agreement before trial.  Cf. Burr,148 Vt. at 209, 531 A.2d  at 917 (court properly set aside agreement after acknowledging that
  court had put undue pressure on parties to reach an agreement).  The fact
  that wife would have been entitled to have her contributions as homemaker
  factored in under § 751 if the court had conducted the property
  distribution cannot be grounds to reject a private agreement.  See
  Bendekgey, 154 Vt. at 197-98, 576 A.2d  at 435-36 (pretrial agreements will
  not be lightly set aside because they represent "the product of bargaining
  in which both parties have given up positions, rights or entitlements in
  order to reach a compromise").  Even if the distribution was not entirely
  fair to wife, both parties entered into the agreement voluntarily, and the
  fact that wife might have negotiated a more advantageous bargain is not
  grounds to set aside an otherwise valid agreement.  See  Kanaan, 163 Vt. at
  413, 659 A.2d  at 136.  Therefore, we reverse the court's distribution of
  the marital property and remand for redistribution consistent with the
  terms of the pretrial agreement.

       ¶  8.  Husband next argues that the court erred in awarding wife
  maintenance of $500 per month. (FN1)  He asserts that because the trial court
  improperly rejected the parties' property settlement, the issue of spousal
  maintenance must be relitigated as well because both issues are linked by
  statute. Husband speculates that "the negotiations leading to the property
  settlement may have included discussions about spousal maintenance."  There
  is no evidence in the record that this was the case and, in any event, in
  matters of maintenance, the family court is not bound by a stipulation of
  the parties.  Hall v. Hall, 124 Vt. 410, 411-12, 206 A.2d 786, 787-88
  (1964).  Nevertheless, we agree that the remand of the court's property
  distribution requires remand of the spousal maintenance award, although for
  different reasons than those stated by husband.

       ¶  9.  Our prior cases have noted the necessary connection between
  disposition of marital property and maintenance awards.  Pursuant to 15
  V.S.A. § 752(a)(1), the family court is required to consider the property
  awarded under § 751 when determining whether the spouse seeking maintenance
  has sufficient property and/or income to meet his or her reasonable needs
  following divorce.  Thus, remand on the property division requires a remand
  on the maintenance decision.  See Downs v. Downs, 154 Vt. 161, 168, 574 A.2d 156, 159 (1990) (noting that property and maintenance decisions are so
  closely related that both matters must be reconsidered on remand); DeGrace
  v. DeGrace, 147 Vt. 466, 470, 520 A.2d 987, 990 (1986) (same). Indeed, in
  this case the new allocation of property and debt under the terms of the
  pretrial agreement necessarily requires addressing the concerns expressed
  by the trial court regarding the agreement.  As the court noted, the
  marital estate has a low value, and wife is assuming a considerable amount
  of debt that may leave her in a difficult financial situation where she is
  unable to provide for her reasonable needs and those of her children.  By
  remanding the maintenance award, we give the trial court the opportunity to
  exercise its wide discretion in remedying any possible inequity resulting
  from the enforcement of the pretrial agreement.  See 15 V.S.A. §752(b)(1);
  Naumann v. Kurz, 152 Vt. 355, 357, 566 A.2d 1342, 1343 (1989) (trial court
  has wide discretion to determine needs of both parties, and amount and
  duration of award).  Therefore, we remand the spousal maintenance award.
  (FN2)  

       ¶  10.  Husband's final argument is that the court abused its
  discretion by prohibiting him from having parent-child contact in New York,
  which he argues would be beneficial to the children.  The family court has
  broad discretion in determining what course of action is in a child's best
  interests.  See Myott v. Myott, 149 Vt. 573, 578, 547 A.2d 1336, 1339
  (1988).  The pattern of visitation adopted will not be reversed unless the
  court's discretion "was exercised upon unfounded considerations or to an
  extent clearly unreasonable upon the facts presented."  Cleverly v.
  Cleverly, 151 Vt. 351, 355-56, 561 A.2d 99, 102 (1989) (internal quotation
  marks omitted).  Here, the court awarded husband contact with the children
  every weekend with the restriction that the visits take place in Vermont. 
  As the court found, husband lives in New York with his girlfriend, a three
  and one-half to four hour one-way commute from wife's home in Vermont. 
  Wife presented evidence that husband was abusive to her and to their oldest
  son.  Evidence was also presented that husband has sworn at wife in front
  of the children and threatened to punish the children if they did not show
  him affection.  The parties' younger son has been upset over contact with
  husband.  Based on the evidence presented, the court concluded that "the
  idea of weekly visitation going back and forth to New York or bi-weekly
  visitation going back to New York" would be too difficult for the children. 
  We find no abuse of discretion in the court's parent-child contact order. 

       The disposition of marital property is reversed and remanded for
  redistribution consistent with the terms of the pretrial agreement, the
  spousal maintenance award is remanded, and the parent-child contact order
  is affirmed.


                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Paul L. Reiber, Associate Justice



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                                  Footnotes


FN1.  Husband also asserts that the court erred by not specifying whether
  the spousal maintenance was permanent or rehabilitative.  We agree that the
  court erred in not being more specific.  The implication from the final
  order is that it is rehabilitative, in that it ordered the spousal
  maintenance to "continue for a period of at least 8 years."  We have
  previously held, however, that when rehabilitative maintenance is
  appropriate, "the court must impose a time limit." Cleverly v. Cleverly,
  147 Vt. 154, 159, 513 A.2d 612, 615 (1986). This Court will remand for
  clarification if there is uncertainty on whether a spousal maintenance
  award is permanent or rehabilitative.  See id. at 160, 513 A.2d  at 615.

FN2.  Alternatively, husband argues that the evidence did not support trial
  courts's finding that husband's income was higher than that found by a
  magistrate judge in the parties' child support hearing.  Because we remand
  for a new determination of the spousal maintenance award, we do not reach
  this issue.