Pouech v. Pouech

Pouech v. Pouech (2004-423); 180 Vt. 1; 904 A.2d 70

2006 VT 40

[Filed 12-May-2006]


       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.


                                 2006 VT 40

                                No. 2004-423


  Natacha Pouech                                 Supreme Court

                                                 On Appeal from
       v.                                        Chittenden Family Court


  Phillip Pouech                                November Term, 2005


  Mark J. Keller, J.

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

  Christopher L. Davis and Devin McLaughlin of Langrock Sperry & Wool, LLP,
    Burlington, for Defendant-Appellee.


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


       ¶  1.  REIBER, C.J.   Wife appeals the family court's decision
  refusing to allow her to amend her divorce complaint to seek maintenance. 
  We conclude that the family court applied the wrong standard in determining
  whether to consider her request for maintenance in light of the stipulated
  settlement that the parties had filed.  Accordingly, while we affirm the
  divorce decree, we reverse the family court's August 5, 2004 decision and
  remand the matter for the court to reconsider wife's maintenance request
  and whether to accept or reject the parties' stipulation in whole or in
  part.
   
       ¶  2.  The parties were married in 1981 and separated in 2003.  They
  have three children, born in October 1982, May 1986, and February 1993. 
  After the parties separated, they negotiated a settlement between
  themselves with the help of a mediator and then a lawyer, who assisted both
  parties in finalizing a stipulation drafted by husband.  The lawyer advised
  the parties to consult independent counsel.  Husband did, but wife did not. 
  On October 20, 2003, the parties signed a document entitled "Stipulation
  for Temporary and Final Order and Decree of Divorce."  The document
  contains twenty-five paragraphs that deal with, among other things,
  parental rights and responsibilities, child support, marital property, and
  marital debt.  The agreement is silent with respect to maintenance.

       ¶  3.  On October 27, 2003, one week after the document was signed,
  wife filed the parties' stipulation along with her divorce complaint.  She
  did not check the box on the complaint form that would have indicated she
  was seeking maintenance.  Approximately five months later, before the final
  divorce hearing, an attorney entered an appearance on behalf of wife and
  filed a motion to amend the complaint to allow wife to seek maintenance. 
  Husband opposed the motion, arguing that the court should not permit wife
  to present evidence on the issue of spousal maintenance, and, in the
  alternative, that maintenance should not be awarded because the stipulation
  was not inequitable.  Over two days in late May 2004, the court held a
  hearing on wife's motion, and both parties testified.
   
       ¶  4.  At the hearing, wife's attorney stated that wife was not
  asking the court to set aside the whole stipulation.  Nevertheless, when
  the court expressed its belief that opening up the issue of maintenance
  would effectively require it to consider all financial aspects of the
  parties' divorce, wife's attorney still insisted that wife wanted
  maintenance, even if it meant that the stipulation would have to be set
  aside.  On direct examination, wife stated that she knew she had a right to
  maintenance, but did not ask for it when the parties negotiated the
  stipulation because of feelings of guilt about leaving her family.  Husband
  testified that wife told him she did not expect him to pay her anything. 
  In a post-hearing memorandum in support of her motion to amend, wife argued
  that the stipulation should be interpreted to allow her to request
  maintenance, and that, in the alternative, there was a mutual mistake
  regarding the issue of maintenance.  The principal thrust of her first
  argument was that, although the parties' stipulation was a binding
  contract, the absence of any provision on maintenance did not permit the
  court to assume that the parties had an agreement regarding maintenance. 
  She also contended, however, that the family court had an independent
  obligation to assure that the stipulation was equitable.
   
       ¶  5.  Following the hearing, in an August 2004 order, the family
  court denied wife's motion to amend.  In arriving at its decision, the
  court noted that wife's attorney had explicitly indicated that wife was not
  seeking to set aside the agreement on the grounds that its terms were
  unfair or unconscionable, but rather was arguing only that: (1) because the
  agreement was silent on the issue of maintenance, the court had the
  authority to impose maintenance; and (2) the court could void the agreement
  based on mutual mistake.  With respect to wife's mutual mistake argument,
  the court found that wife knew she had a right to maintenance but did not
  ask for it, and that even if she had mistakenly believed she could seek
  maintenance at the final divorce hearing notwithstanding the absence of a
  provision on maintenance in the parties' stipulation, it was a unilateral
  mistake on her part.  Further, the court found that the parties intended
  their stipulation to be a final, complete resolution of their divorce and
  that the stipulation unambiguously omitted any mention of maintenance. 
  Hence, the court refused to allow wife to seek maintenance over and above
  the terms of the agreement.  On August 26, 2004, the court entered a decree
  of divorce incorporating the parties' stipulation into the final order. 
  Wife appeals, raising several interrelated arguments.


       ¶  6.  Wife first argues that, by stating in their stipulation that
  the terms and conditions of the agreement "may constitute the basis for" a
  final order and decree of divorce, the parties intended to resolve only
  those matters explicitly dealt with in the stipulation, but not to the
  exclusion of other unmentioned matters over which the court had
  jurisdiction.  According to wife, the stipulation's silence on the issue of
  maintenance demonstrated that the parties had not come to any agreement on
  that issue, and therefore the court was free to consider it.

       ¶  7.  We reject this argument because it is contrary to the family
  court's findings and conclusions, which are supported by the evidence.  
  The court found that wife knew she had a right to maintenance, but
  nevertheless did not ask for it in the stipulation, and that the parties
  intended the stipulation to be a complete, final agreement on their
  divorce. (FN1)  Both the language of the parties' stipulation and the
  circumstances surrounding its execution support the court's determination
  that the stipulation unambiguously excluded maintenance as part of the
  parties' intended final divorce settlement.  See Isbrandtsen v. N. Branch
  Corp., 150 Vt. 575, 579, 556 A.2d 81, 84 (1988) (court may consider
  circumstances surrounding making of agreement in determining whether
  agreement is ambiguous).
                  
       ¶  8.  The evidence showed that: (1) the parties signed a
  twenty-five-paragraph agreement entitled "Stipulation for Temporary and
  Final Order and Decree of Divorce," which dealt with parental rights and
  responsibilities, child support, marital property, and marital debt; (2)
  wife filed the stipulation along with her divorce complaint, in which she
  did not check the box indicating that she was seeking maintenance; (3) wife
  testified that she knew she had a right to maintenance but did not ask for
  any because she felt guilty for having left her family; and (4) husband
  testified that wife indicated to him that she did not expect him to pay her
  anything.  Given this evidence, the family court did not err in determining
  that the parties' stipulation unambiguously represented a comprehensive
  agreement on their divorce.  Cf. Meier v. Meier, 163 Vt. 608, 609, 656 A.2d 212, 213 (mem.) (1994) (finding no ambiguity in separation agreement that
  was silent with respect to maintenance).

       ¶  9.  Further, wife's reliance on the language "may constitute the
  basis for" in the stipulation is misplaced.  Use of the word "may" merely
  recognized the family court's ultimate authority to resolve matters
  concerning the parties' divorce and had nothing to do with whether the
  parties intended their agreement to be final and comprehensive.
   
       ¶  10.  Next, wife argues that the family court was obligated to
  determine whether the parties' stipulation was fair and equitable before
  incorporating it into its final divorce order.  Along these lines, wife
  also argues that the court should have assured itself that the provisions
  of the stipulation were within the general parameters of other cases
  involving similarly situated individuals.  According to wife, the instant
  stipulation provides her with far less than what other litigants have
  received in comparable situations.  Wife contends that if the court had
  made adequate findings, it would have concluded that the parties'
  stipulation was unfair and inequitable.  Husband responds that wife waived
  this argument by expressly disavowing it below and by failing to present
  evidence to back it up.

       ¶  11.  Before addressing the substance of wife's argument, we reject
  husband's contention that wife waived it.  To be sure, wife stated at the
  hearing on her motion to amend that she was not asking the family court to
  set aside the parties' entire stipulation or claiming that the stipulation
  was unconscionable.  She also acknowledged in her follow-up memorandum of
  law that the final stipulation was a binding contract between the parties. 
  Nevertheless, when the family court warned her at the hearing that her
  request for maintenance would most likely require it to open up all aspects
  of the financial matters contained in the parties' stipulation, she
  acknowledged that possibility.  Further, she argued in her memorandum of
  law that the family court had an obligation, before the final judgment
  issued, to consider her request for maintenance, regardless of whether its
  absence in the stipulation was by mistake or design.  In making this
  argument, wife noted that a separation agreement is fundamentally different
  from a regular contract because it concerns a relationship that is
  sanctioned, promoted, and protected by the state.  Thus, according to wife,
  the court had an obligation to consider her request for maintenance as
  allowed under 15 V.S.A. § 752.
   
       ¶  12.  Moreover, wife cited Vermont case law for the proposition
  that the family court is not bound by the parties' stipulation with respect
  to maintenance, and husband conceded this point in his memorandum of law,
  acknowledging that it was for the court to determine whether any inequity
  would result from enforcement of the agreement.  For his part, husband
  briefly explained why he believed the agreement was equitable, and wife set
  forth reasons in her memorandum why she believed the agreement was not
  equitable.  Presented with these arguments, the trial court wrestled with
  questions concerning the extent to which it was free to review the parties'
  stipulation and consider wife's request for maintenance.  Under the
  circumstances, we find no waiver of wife's argument that the family court
  had an obligation to determine whether the parties' agreement was equitable
  before incorporating it into the final divorce order.  See Bull v. Pinkham
  Eng'g Assocs., 170 Vt. 450, 459, 752 A.2d 26, 33 (2000) ("In order to
  effectively raise an objection, a party must present the issue with
  specificity and clarity in a manner that gives the factfinder a fair
  opportunity to rule on it.").

       ¶  13.  We now turn to the substance of that argument.  We start by
  examining our case law on this subject, which is open to various
  interpretations.  On several occasions, including in a recent case, this
  Court has cited Hall v. Hall, 124 Vt. 410, 411-12, 206 A.2d 786, 787-88
  (1964) for the proposition that "in matters of maintenance, the family
  court is not bound by a stipulation of the parties."  Boisclair v.
  Boisclair, 2004 VT 43, ¶ 8, 176 Vt. 646, 852 A.2d 617 (mem.); see Hopkins
  v. Hopkins, 130 Vt. 475, 477, 296 A.2d 266, 268 (1972) (citing Hall for
  proposition that divorce court is "not bound by the stipulation between the
  parties" regarding alimony); Segalla v. Segalla, 129 Vt. 517, 532, 283 A.2d 237, 245 (1971) (citing Hall for proposition that parties' stipulation,
  upon which temporary order is based, need not be honored by trial court in
  its final divorce decree); Frink v. Frink, 128 Vt. 531, 533, 266 A.2d 820,
  822 (1970) (citing Hall for proposition that "in Vermont, courts may also
  make an order regarding alimony contrary to the terms of a stipulation
  between the parties").
   
       ¶  14.  Yet, on at least one occasion, we have also questioned the
  scope of our holding in Hall.  In Strope v. Strope, 131 Vt. 210, 217-18,
  303 A.2d 805, 810 (1973), we noted that the Court in Hall upheld the trial
  court's rejection of a written stipulation that was supposed to
  memorialize, but in fact was inconsistent with, the parties' previous oral
  stipulation that had been accepted by the trial court.  In Strope, we also
  distinguished other cases in which we held that the trial court had the
  authority to reject stipulations, suggesting that the trial court's
  authority was limited by the particular facts and circumstances of those
  cases, one of which concerned child custody, Martin v. Martin, 127 Vt. 313,
  248 A.2d 723 (1968), and the other a temporary order, Segalla, 129 Vt. 517,
  283 A.2d 237.  Strope, 131 Vt. at 218, 303 A.2d  at 810.

       ¶  15.  In Strope, although the wife indicated in response to direct
  questioning from the court that she was satisfied with the parties'
  stipulation, the trial court increased the wife's maintenance payments
  after expressing its dissatisfaction with the stipulation.  Noting that the
  stipulation was uncontested, this Court stated that the trial court could
  not reject the agreement merely because it was dissatisfied with it, but
  rather had to state a compelling reason for rejecting it.  Id. at 216, 303 A.2d  at 809.  In so holding, the Court cited several standards for
  reviewing stipulations, including a standard employed in an earlier case
  involving an action to enforce payments pursuant to a separation
  agreement-whether the agreement was the result of collusion, fraud, or
  duress.  Id. at 217, 303 A.2d  at 809 (citing Cleary v. LaFrance, 109 Vt.
  422, 199 A. 242 (1938)).  The Court also suggested that it was irrelevant
  that the parties' stipulation had not yet been incorporated into an order. 
  Id. at 217, 303 A.2d  at 810.  Ultimately, the Court reinstated the parties'
  agreement because the evidence established that it was "fair and just." 
  Id. at 218, 303 A.2d  at 810; see Hopkins, 130 Vt. at 478, 296 A.2d  at 268
  (overturning trial court's decision to require additional payments to wife
  where evidence indicated that parties' uncontested stipulation was "fair
  and just").
   
       ¶  16.  Since Strope, this Court has continued to send mixed messages
  as to the standard for reviewing stipulations made in anticipation of
  divorce.  See Boisclair, 2004 VT 43, ¶¶ 5, 8 (noting that pretrial
  agreements are contracts that can be set aside only on grounds sufficient
  to set aside contract, but also citing Hall for proposition that family
  court is not bound by parties' stipulation regarding maintenance).  Compare
  Lewis v. Lewis, 149 Vt. 19, 22, 538 A.2d 170, 172 (1987) ("The court is not
  bound by stipulations between the parties, but acts within its discretion
  in making a different disposition of the property based on evidence before
  it."), with Bendekgey v. Bendekgey, 154 Vt. 193, 197, 576 A.2d 433, 435
  (1990) ("A pretrial agreement to distribute property is a contract, which
  the court can set aside only for grounds sufficient to set aside a
  contract."). 

       ¶  17.   Regarding policy considerations, on the one hand, we have
  assumed that agreements reached by the parties are preferable to those
  imposed by a stranger to the marriage-the court.  Kanaan v. Kanaan, 163 Vt.
  402, 413, 659 A.2d 128, 135 (1995); Bucholt v. Bucholt, 152 Vt. 238, 241,
  566 A.2d 409, 411 (1989).  On the other hand, we have recognized that
  stipulations in anticipation of divorce do not necessarily deprive the
  family court of its statutorily authorized independent role in distributing
  the assets of divorcing couples.  See Poulin v. Upham, 149 Vt. 24, 28, 538 A.2d 181, 183 (1987) ("Even if there had been a stipulation between the
  parties the court would have to make an independent determination of
  whether the distribution is equitable."); Rudin v. Rudin, 132 Vt. 30, 33,
  312 A.2d 736, 738 (1973) (given that court in divorce action has right
  under 15 V.S.A. § 751 to decree a just and equitable division of property,
  "the court was not bound by the parties' property stipulation, but was
  within its discretion in making a new disposition of the property under the
  evidence before it"); (FN2) cf. Manosh v. Manosh, 160 Vt. 634, 636, 648 A.2d 833, 836 (mem.) (1993) ("Where there is no § 751 motion, however, the
  family court has no independent obligation to review an agreement unless it
  is submitted by the parties to be incorporated in the divorce order.").

       ¶  18.  Significantly, we have emphasized a strict contractual
  standard for reviewing divorce stipulations most often in situations where
  the parties' stipulation was uncontested at trial.  E.g., Damone v. Damone,
  172 Vt. 504, 512, 782 A.2d 1208, 1214 (2001); Strope, 131 Vt. at 216, 303 A.2d  at 809.  But see Bendekgey, 154 Vt. at 196-99, 576 A.2d  at 435-36
  (declining to overturn agreement husband contested at trial because husband
  failed to prove grounds sufficient to overturn contract).  For example, in
  Damone, after the divorce complaint was filed, the parties executed an
  agreement dividing a personal injury settlement attributable to husband's
  accident during the marriage.  Although "both parties testified that they
  wanted the terms of the agreement to control distribution of the settlement
  proceeds, and the court to enforce that agreement," Damone, 172 Vt. at 512,
  782 A.2d  at 1214-15, the trial court refused to enforce the agreement but
  instead distributed the settlement proceeds more favorably to the wife. 
  After stating that the parties' agreement controls unless a challenger
  demonstrates that it should be set aside on grounds sufficient to set aside
  a contract, we concluded that because "the court failed to adhere to an
  unchallenged property distribution agreement, and failed to timely notify
  the parties of its intent to do so, the court's distribution of the
  settlement proceeds contrary to the parties' agreement was an abuse of
  discretion."  Id. at 512, 782 A.2d  at 1215 (emphasis added).
   
       ¶  19.  In contrast, in the instant case, wife challenged the
  parties' stipulation before the family court approved it, held a final
  divorce hearing, or incorporated it into a final divorce order.  Although
  wife primarily wanted the court to consider her maintenance request without
  disturbing the stipulation, the court recognized the impossibility of doing
  so, and wife still wanted to go forward with her request for maintenance. 
  Under these circumstances, we conclude that the family court erred by
  refusing to consider wife's maintenance request because of her failure to
  prove duress, unconscionable advantage, or another basis for overturning a
  contract.  Rather, the court should have given the parties an opportunity
  to present evidence on the fairness of their stipulation.  Based on the
  evidence presented by the parties, the court had the discretion to reject
  the stipulation on grounds that it was inequitable in light of the relevant
  statutory factors.

       ¶  20.  Once a stipulation is incorporated into a final order,
  concerns regarding finality require that the stipulation be susceptible to
  attack only on grounds sufficient to overturn a judgment.  See Bucholt, 152
  Vt. at 241, 566 A.2d  at 411 (holding that unchallenged stipulations
  accepted by trial court and incorporated into final divorce order are
  presumed to be fair, formal, and binding on parties); see also Guthrie v.
  Guthrie, 594 S.E.2d 356, 358 (Ga. 2004) (noting that trial court has
  discretion to reject settlement agreement before it becomes judgment of
  court).  Further, after the close of evidence at a final hearing in which
  the parties have submitted a stipulation to the court for inclusion into a
  final order, considerations of judicial economy favor requiring a party who
  wishes to challenge the stipulation before issuance of the final judgment
  to establish grounds sufficient to overturn a contract.  Cf. Putnam v.
  Putnam, 166 Vt. 108, 112-13, 689 A.2d 446, 448-49 (1996) (stating that
  court-approved stipulation challenged after attorneys were directed to
  prepare written order could be set aside only on grounds sufficient to set
  aside contract).
   
       ¶  21.  Before then, however, if one or both parties object to a
  previous agreement made in anticipation of divorce, the policy
  considerations that favor deference to the parties' "voluntary" agreement
  are less forceful.  Cf. Leighton v. Leighton, 261 N.W.2d 457, 461 (Wis.
  1978) (holding that stipulations in advance of trial cannot subscribe or
  oust court of its authority to resolve matters in divorce proceedings, and
  concluding that trial court would not abuse its discretion by refusing to
  recognize stipulation repudiated by one of parties).  By the same token,
  under such circumstances, the policy considerations recognizing the family
  court's role in resolving marital disputes in contested divorce proceedings
  are heightened.

       ¶  22.  Accordingly, we hold that in a situation such as the instant
  case, when parties have executed a stipulation in anticipation of divorce
  regarding maintenance or the division of marital property, but one or both
  of the parties challenge the stipulation before the family court has held a
  final hearing or incorporated the stipulation into a final divorce order,
  the court may reject the stipulation even if the challenging party fails to
  demonstrate grounds sufficient to overturn a contract.  Of course, it is
  imperative that the court provide adequate findings as to why it has chosen
  to reject or accept the stipulation.  To the extent that prior case law is
  contrary to this holding, that case law is overruled.
   
       ¶  23.  In determining whether to reject the stipulation, the family
  court should consider all of the circumstances surrounding execution of the
  stipulation.  The family court is not obligated to reject a stipulation
  merely because the agreement does not divide the marital property or
  provide maintenance precisely in the manner or the amount that it would
  have had the agreement not existed.  See In re Marriage of Ask, 551 N.W.2d 643, 646 (Iowa 1996) (noting that trial court, to uphold consent decree,
  need not necessarily conclude that it would have arrived at same result if
  it were adjudicating controversy).  Rather, the question is one of fairness
  and equity viewed from the perspective of the standards and factors set
  forth in our divorce statutes.  If the parties' agreement is inequitable in
  light of those standards and factors, the family court is not compelled  to
  accept the agreement simply because the challenging party cannot establish
  a formal contractual defense such as duress or unconscionable advantage. 
  Further, the family court's determination that an agreement is unfair or
  inequitable is discretionary, and thus we review its decision to reject or
  accept a stipulation under an abuse-of-discretion standard.

       ¶  24.  Our holding is based on the simple truth that an agreement in
  anticipation of divorce is not the same as any ordinary contract.  Public
  policy favors parties settling their own disputes in a divorce, but, as
  noted, the family court has a statutorily authorized role to play in
  divorce proceedings to assure a fair and equitable dissolution of the
  state-sanctioned institution of marriage.  See Croote-Fluno v. Fluno, 734 N.Y.S.2d 298, 299 (App. Div. 2001) (recognizing that separation agreements
  are held to higher standard of equity than other contracts).  This is
  particularly true when one or both parties challenge the fairness of
  agreements that are often made under trying and emotional circumstances. 
  Cf. In re Marriage of Bisque, 31 P.3d 175, 178 (Colo. Ct. App. 2001)
  (stating that "conscionability standard applicable to separation agreements
  is different because of the public policy concern for safeguarding the
  interests of a spouse whose consent to the agreement may have been obtained
  under more emotionally stressful circumstances") (internal quotations
  omitted).
   
       ¶  25.  Wife claims on appeal that the absence of maintenance in this
  case is manifestly inequitable, given the length of the marriage, her role
  as primary care giver during the marriage, and the wide disparity between
  the parties in income and earning capacity.  See Delozier v. Delozier, 161
  Vt. 377, 382-83, 640 A.2d 55, 57-58 (1994) (citing relevant factors for
  determining amount and duration of maintenance).  Because the parties at
  the hearing on wife's motion to amend focused primarily on whether the
  family court could consider wife's request for maintenance rather than on
  whether their underlying agreement was equitable, and because the family
  court should consider, in the first instance, the fairness of the parties'
  agreement, we remand the matter for the court to reconsider wife's request
  for maintenance and the parties' agreement.


       ¶  26.  On remand, the family court need not consider husband's
  suggestion that wife should be precluded from objecting to the parties'
  stipulation because she ratified it by accepting half of husband's pension
  funds and by having husband refinance the mortgage on the marital home to
  relieve her of any further debt obligations associated with the property. 
  Rather than negating the family court's authority to reject the agreement,
  any prior implementation of the agreement by the parties merely requires
  the court, should it reject the agreement, to consider the financial
  consequences of the parties' actions in equitably distributing the parties'
  assets.  See Rudin, 132 Vt. at 32-33, 312 A.2d  at 738 (rejecting contention
  that divorcing parties' implementation of their property agreement was
  binding on divorce court); Leighton, 261 N.W.2d  at 461 (concluding that
  parties' partial implementation of their agreement did not alter trial
  court's authority to reject it, but only made determination of equitable
  division of marital assets more difficult).

       The parties' divorce decree is affirmed, but the family court's August
  5, 2004 decision is reversed, and the matter is remanded for the court to
  reconsider wife's maintenance request and whether to accept or reject the
  parties' stipulation in whole or in part.



                                       FOR THE COURT:



                                       _______________________________________
                                       Chief Justice


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                                  Footnotes


FN1.  We also find unavailing wife's contention that although the court's
  decision makes it clear what was decided, one cannot discern from the
  decision what facts were relied on because the court made only limited
  findings.  Wife did not request findings, see V.R.C.P. 52(a) (trial court
  shall make findings upon request of party), and, in any event, the court
  plainly indicated how it reached its decision.  See Maurer v. Maurer, 2005
  VT 26, ¶ 12, 16 Vt. L. Wk. 53, 872 A.2d 326 (major purpose of findings is
  to enable appellate court to determine how trial court reached its
  decision); Chaker v. Chaker, 147 Vt. 548, 549, 520 A.2d 1005, 1006 (1986)
  (where findings are neither requested nor made, appellate court will assume
  that trial court had evidence in mind and will examine record to see if
  result is supportable).

FN2.  In considering the family court's statutorily authorized role in
  resolving marital disputes, we do not find it significant that 15 V.S.A. §
  751(a) provides that the court "shall" settle the property rights of the
  parties upon motion of either party, while 15 V.S.A. § 752 provides that
  the court "may" order either spouse to pay maintenance.  The fact that the
  family court has the discretion to award maintenance does not diminish its
  role in resolving the parties' financial matters, which may require a
  maintenance award.