Adams v. Adams

Annotate this Case
Adams v. Adams (2003-524); 177 Vt. 448; 869 A.2d 124

2005 VT 4

[Filed 14-Jan-2005]


       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.


                                  2005 VT 4

                                No. 2003-524


  Susan Adams	                                 Supreme Court

                                                 On Appeal from
       v.	                                 Washington Family Court


  Reuben Adams	                                 September Term, 2004


  Jane E. Dimotsis, J.

  John R. Durrance, Jr. of Gaston, Durrance & Fairbanks, Montpelier, for
    Plaintiff-Appellee.

  Kurt M. Hughes of Murdoch & Hughes, Burlington, for Defendant-Appellant.


  PRESENT:  Dooley, Johnson and Skoglund, JJ., and Allen, C.J. (Ret.),
            Specially Assigned


       ¶  1.  SKOGLUND, J.   In this divorce action, husband appeals the
  Washington Family Court's rulings (1) denying his motion to dismiss and
  granting wife a divorce, and (2) directing him to pay one-half of wife's
  attorney's fees.  Husband argues on appeal that the court should have
  dismissed the action because the parties had already divorced in Honduras,
  and that the court erred in granting attorney's fees in the absence of
  expert testimony concerning the reasonableness of the fees.  The family
  court rejected both arguments after a three-day trial, and we now affirm.
   
       ¶  2.  The core issue in this case is whether the family court
  should have recognized an alleged divorce of the parties that husband
  claimed took place in Honduras in 1979.  The parties first met in 1967,
  when husband's family bought property from wife's grandfather on an island
  off the coast of Honduras where wife had lived since birth.  Prior to
  marrying appellant, wife had married, and obtained a divorce from, another
  man.  When she divorced her first husband, appellant's father helped her
  obtain a lawyer.  During those divorce proceedings, wife appeared in court
  and had to have the questions regarding the divorce read to her, as she had
  only a third-grade education and could not read or write.  After wife's
  divorce, the parties married in Honduras on May 17, 1977.  The oldest of
  their three adult children was born while they were living in Honduras.  

       ¶  3.  In 1979, the parties visited the United States, and had
  conflicts as a result of staying with husband's mother as well as wife's
  concerns about husband's flirtatious behavior.  Wife testified that because
  of husband's behavior, she had a one-night affair after they returned to
  Honduras.  When she told husband about the affair, he told her he could
  divorce her because of her actions.  However, neither party took any action
  based on this incident, and the parties continued to live as a married
  couple. (FN1)
     
       ¶  4.  Months later, husband told wife that a woman would be coming to
  their home with divorce papers for her to sign, and that if she did not
  sign them, he would take their son to the United States and she would never
  see him again.  When the woman showed up with the papers, wife signed them
  even though she could not read them and nobody read or explained them to
  her.  She testified that based on her first divorce, she was aware that she
  had to go to court in order to have a divorce.  The family court credited
  her testimony that she never went to court regarding the divorce husband
  sought to enforce in this action.  
   
       ¶  5.  In any event, the parties lived together continuously as a
  married couple for approximately the next twenty years.  They had two more
  children after moving to the United States in 1980, and always referred to
  each other as spouses.  They filed income taxes jointly as spouses, and
  husband signed the returns each year.  The deed to their property in
  Woodbury, Vermont states that it belongs to "Reuben and Susan Adams,
  husband and wife, joint tenants by the entireties."  Husband prepared and
  signed naturalization papers for wife in 1983, in which he acted as her
  sponsor and described her as his wife.  Their wills also refer to them as
  husband and wife.  In sum, all of the parties' legal documents reviewed by
  the family court referred to them as husband and wife, and most, if not
  all, were prepared and executed by husband.  

       ¶  6.  Moreover, the family court found that the parties consistently
  held themselves out as husband and wife in their social interactions with
  others.  They always celebrated their wedding anniversary, sometimes with
  friends who were married on the same date.  In 1997, on their twentieth
  anniversary, husband bought wife an anniversary band with three diamonds
  and bought himself a new gold band.  Additionally, husband did not raise
  the alleged Honduran divorce until after the parties had met to discuss the
  instant divorce in 2000, and wife had obtained counsel.  Indeed, the court
  found that husband "did not mention the alleged divorce documents that
  [wife] had signed for almost twenty years." 

       ¶  7.    Husband adduced testimony from a social friend that during a
  visit to the parties' home, after consuming alcohol, husband had once
  stated that the parties were not actually married.  The family court did
  not find the witness credible. 
   
       ¶  8.  Husband also introduced into evidence certified divorce
  documents and statutes from Honduras, along with testimony from a Honduran
  attorney that the documents were true and valid.  As reflected by those
  documents, the basis for the divorce request included the assertion that
  "it has become impossible for us to continue together for reasons that
  [are] our own concern, at the present time we are distanced from one
  another to such an extent that there is no bond between us after two years
  of marriage."  While the court found the documents to be authentic and
  therefore received them into evidence, it also found that "[t]he evidence
  was not clear" that the parties had actually appeared before the Honduran
  court prior to the divorce decree's issuance.  Specifically, the court
  noted that the documents do not indicate that the parties themselves
  appeared, and they suggest that an attorney appeared for both of them. 
  Further, the Honduran attorney who testified at trial had not spoken with
  the person who allegedly represented both parties before the Honduran
  court.

       ¶  9.  The essence of defendant's argument in this case is that the
  family court erred by denying his motion to dismiss because it should have
  recognized the Honduran divorce as a matter of comity.  The Full Faith and
  Credit Clause, U.S. Const. art. IV, § 1, does not apply to judgments
  obtained in a foreign country, Aetna Life Ins. Co. v. Tremblay, 223 U.S. 185, 190 (1912), and so a U.S. court may, but is not required to, recognize
  a divorce decree from a foreign country under the doctrine of comity.  See
  Office of Child Support v. Sholan, 172 Vt. 619, 620, 782 A.2d 1199, 1202
  (2001) (mem.) (recognizing that a Vermont court may give effect to foreign
  child support orders under the doctrine of comity).  The question of
  whether the family court correctly applied the doctrine here turns on the
  court's factual determinations regarding the nature of the Honduran
  documents and proceedings and the conduct of the parties, and its legal
  determination as to whether or not to recognize the Honduran divorce decree
  in light of those facts.  Thus, this case presents a mixed question of law
  and fact.  See, e.g., Luneau v. Peerless, Ins. Co., 170 Vt. 442, 445, 750 A.2d 1031, 1033 (2000) (holding that an inquiry that requires the court to
  determine the nature of a party's conduct and whether that conduct fit an
  insurance policy exclusion was a mixed question of law and fact).
   
       ¶  10.  We will uphold a trial court's conclusions concerning a mixed
  question of law and fact if the court applied the correct legal standard
  and its conclusions are supported by its factual findings.  Stannard v.
  Stannard Co., 2003 VT 52, ¶ 8, 175 Vt. 549, 830 A.2d 66 (mem.).  We
  review the factual findings of a trial court in the light most favorable to
  the prevailing party.  Cloutier v. Blowers, 172 Vt. 450, 452, 783 A.2d 961,
  963 (2001).  We will not disturb the trial court's factual findings unless
  they are clearly erroneous, even if the record contains inconsistencies or
  substantial evidence to the contrary.  Pion v. Bean, 2003 VT 79, ¶ 15,
  176 Vt. 1, 833 A.2d 1248.  This follows because "[a]s the trier of fact, it
  [is] the province of the trial court to determine the credibility of the
  witnesses and weigh the persuasiveness of the evidence."  Id. ¶ 17
  (quotation omitted).  Our review of the court's legal determinations,
  however, is nondeferential and plenary.  Thompson v. Dewey's S. Royalton,
  Inc., 169 Vt. 274, 276, 733 A.2d 65, 67 (1999).

       ¶  11.  As the family court correctly recognized, this Court has
  applied the standards laid out in the Restatement (Third) of Foreign
  Relations Law of the United States to determine whether a trial court
  properly recognized a foreign judgment.  In Sholan, we noted that "[a]s a
  general matter, under principles of comity, final judgments of courts of
  foreign nations . . . are conclusive between the parties to the action and
  are entitled to recognition in United States courts."  Sholan, 172 Vt. at
  621, 782 A.2d  at 1203 (citing Restatement (Third) of Foreign Relations Law
  of the United States § 481 (1987) [hereinafter Restatement]).  We then
  summarized the Restatement's general standards for recognizing a judgment
  from a foreign nation as follows:

    For a court to recognize and give effect to a foreign order, the
    judgment must have been rendered under a judicial system which
    provides impartial tribunals and procedures compatible with due
    process of law, and the issuing court must have had jurisdiction
    over the defendant sufficient to support rendering such a decision
    in the state in which the order is sought to be enforced.
    [Restatement] § 482(1).  If these prerequisites have been met, the
    state court may still decline to recognize the foreign order, if
    the issuing court lacked subject matter jurisdiction over the
    action; the defendant was not accorded adequate notice of the
    proceeding; the judgment was obtained by fraud; the original
    action or judgment is in conflict with state or federal public
    policy; the judgment conflicts with another judgment entitled to
    recognition; or the foreign proceeding was contrary to an
    agreement by the parties to submit the controversy to another
    forum for resolution.  Id. § 482(2).

  Sholan, 172 Vt. at 622, 782 A.2d  at 1203-04.
   
       ¶  12.  In addition to these standards for recognition of foreign
  judgments generally, the Restatement provides guidance specific to the
  recognition of foreign divorce decrees:

      (1) Courts in the United States will recognize a divorce granted
    in the state in which both parties to the marriage had their
    domicile or their habitual residence at the time of divorce, and
    valid and effective under the law of that state.

      (2) Courts in the United States may, but need not, recognize a
    divorce, valid and effective under the law of the state where it
    was granted, 


         (a) if that state was, at the time of divorce, the state of
         domicile or habitual residence of one party to the marriage; or 

         (b) if the divorce was granted by a court having jurisdiction
         over both parties, and if at least one party appeared in person
         and the other party had notice of and opportunity to participate
         in the proceeding.

     (3) A court that would not recognize a divorce that is within
    Subsection 2(a) or 2(b) may nevertheless recognize such a divorce
    if it would be recognized by the state where the parties were
    domiciled or had their habitual residence at the time of the
    divorce.

  Restatement § 484.
   
       ¶  13.  In light of the factual findings described above, the family
  court properly concluded that the divorce decree was not valid and
  effective under Honduran law, and correctly declined to recognize the
  decree under the doctrine of comity.  According to the certified
  translations of the relevant Honduran code provisions introduced by husband
  at trial, Article 145 of Chapter XII on Divorce provides that "[t]here
  cannot be a divorce decree if there has been a reconciliation or marital
  relations between the spouses, if these happen after the acts that could
  have authorized it, or after the request for divorce."  The family court
  found that "[t]he credible testimony is that the parties never separated
  even for one night.  The marital relationship continued during the time the
  parties were in Honduras and for many years after in the United States." 
  Thus, the court held that Article 145 precluded the Honduran divorce, since
  the parties had "reconciled"-indeed, they had never even separated so that
  they could then get back together-after the request for the divorce.  

       ¶  14.  Two additional family court findings buttress this conclusion. 
  First, the family court found that the decree was "based on a false
  representation that it would be impossible for [the parties] to resume
  marital relations when in fact they never stopped living together, held
  themselves out as a married couple, and otherwise remained married" for
  approximately twenty years after the date of the decree.  Second, the
  family court "found credible the testimony of [wife] that she did not
  receive notice of the divorce proceedings nor did she have the opportunity
  to appear before the Honduran Court."  Given the decree's failure to comply
  with the relevant Honduran code provision, coupled with the "false
  representation" that formed the decree's basis and wife's lack of a
  meaningful opportunity to appear before the Honduran court, the family
  court correctly concluded that the decree was invalid under Honduran law.
  (FN2)   Therefore, we conclude that, because comity presupposes a "valid
  and effective" divorce decree, see Restatement § 484(1)-(2) (outlining when
  courts "will" or "may" recognize a divorce that is "valid and effective
  under the law" of the state where it was granted), the family court
  properly declined to recognize the Honduran divorce decree. 

       ¶  15.  Further, we are unmoved by husband's laches argument.  As a
  preliminary matter, it is not clear from the record that husband even
  presented this issue to the family court.  In his reply brief, husband
  points to a single remark made by his attorney during a proffer of the
  proposed testimony of a witness, in which his attorney stated that the
  testimony "goes to our [laches] argument."  Failure to raise an issue
  before the trial court precludes raising it on appeal.  Denton v.
  Chittenden Bank, 163 Vt. 62, 69, 655 A.2d 703, 708 (1994).
   
       ¶  16.  Assuming that husband did preserve this issue, we nonetheless
  reject his argument. "Laches is the failure to assert a right for an
  unreasonable and unexplained period of time when the delay has been
  prejudicial to the adverse party, rendering it inequitable to enforce the
  right."  Chittenden v. Waterbury Ctr. Cmty. Church, Inc., 168 Vt. 478, 494,
  726 A.2d 20, 30 (1998) (quotation omitted).  Delay alone is insufficient to
  invoke laches-the delay must be unexcused and prejudicial.  Id. 

       ¶  17.  In this case, it is difficult to discern how wife failed to
  assert any right, let alone how her conduct worked any possible prejudice
  to husband.  As the family court found, husband's conduct during the more
  than twenty years that the parties lived together prior to the instant
  divorce gave every indication, both to wife and to the outside world, that
  the parties were married.  Indeed, husband represented as much on numerous
  documents filed with federal and state authorities.  Moreover, the family
  court credited wife's testimony that she did not know about or appear at
  the Honduran divorce proceedings.  Under these circumstances, it strains
  reason to contend that wife has "delayed" asserting any legal right. 
  Additionally, the circumstances of this case amply explain the purported
  "delay" that husband asserts, and the fact that wife did not challenge the
  applicability of the Honduran divorce until these proceedings worked no
  discernible disadvantage to husband.  See Kanaan v. Kanaan, 163 Vt. 402,
  413, 659 A.2d 128, 136 (1995) (noting that a delay must "work[] a
  disadvantage to another" in order to invoke laches).  Therefore, his laches
  argument fails.

       ¶  18.  Finally, husband argues on appeal that the family court erred
  in ordering him to pay one-half of wife's attorney's fees.  Specifically,
  he claims that the court should not have admitted wife's attorney's bill
  into evidence without expert testimony as to the reasonableness of the
  fees.  We disagree and affirm the family court's award of attorney's fees.

       ¶  19.  Husband's argument fails because it overlooks "the peculiar
  nature of divorce and similar actions."  Ely v. Ely, 139 Vt. 238, 242, 427 A.2d 361, 364 (1981).  Divorce cases 
   
    almost always [involve] the financial circumstances and abilities
    of the parties as matters in controversy, and [are] matters of
    common occurrence in the trial courts, obviat[ing] the necessity
    for a separate hearing, or the taking of particular evidence, on
    the question of awarding of attorney fees or suit money.  In the
    usual, and vast majority of, cases such allowance borders on
    judicial routine, and is supported by evidence bearing on the
    circumstances of the parties generally.

  Id. (emphasis added).  As a result, the trial court may award attorney's
  fees in its discretion in light of its own knowledge and experience,
  without separate evidence of the reasonableness of the fees.  Milligan v.
  Milligan, 158 Vt. 436, 444, 613 A.2d 1281, 1286 (1992).  

       ¶  20.  Husband relies on several non-divorce cases for the
  proposition that a party "has the burden to provide evidence of services
  upon which value can be determined."  Bruntaeger v. Zeller, 147 Vt. 247,
  254, 515 A.2d 123, 128 (1986).  As explained above, in light of the
  "peculiar nature" of divorce actions, the family court's "detailed findings
  on the general financial circumstances of the parties support the fee
  award."  Milligan, 158 Vt. at 444, 613 A.2d  at 1286.  Accordingly, we
  affirm the family court's award of attorney's fees to wife.

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice 



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                                  Footnotes


FN1.  Husband testified that he moved into his father's house after learning
  of the affair, but moved back to the marital home before the alleged
  divorce.  However, the family court found wife's "testimony that the
  parties remained living together throughout this period to be credible." 
  By contrast, the family court "did not find [husband] to be a credible
  witness."

FN2.  Husband argues that, under Lariviere v. Lariviere, 102 Vt. 278, 147 A. 700 (1929), the validity of the divorce must be determined according to
  Honduran law.  Even assuming husband's interpretation of Lariviere is
  correct, his argument fails for the reasons explained above.