Theberge v. Theberge
Annotate this CaseThis appeal arose from the denial of defendant Mary Ann Theberge’s post-judgment motion to enforce the cost-of-living adjustment (COLA) to a spousal-maintenance award made in her favor in the parties’ divorce action. The trial court found that the parties agreed to a modification of the maintenance award eliminating the yearly COLA and that, consequently, plaintiff Gerald Theberge’s maintenance payments - which continued after the alleged agreement, absent the COLA - were not in arrears. Accordingly, the court denied the enforcement motion. The Vermont Supreme Court held that a tuition agreement between the parties was a valid contract such that, if plaintiff agreed to waive defendant’s obligation thereunder in connection with a second agreement, he would have given up a legal right he was otherwise free to exercise. As a result, remand was necessary for the trial court to determine whether the parties entered an agreement with corrected factual findings. In connection with this remand, the Court noted that the trial court considered defendant’s receipt of ten years of maintenance payments without COLA to constitute “waiver by performance.” However, it was unclear whether the trial court was referring to waiver in the context of evidence that defendant made an oral agreement to waive the COLA, or whether it was referring to waiver as the relinquishment of a known right through defendant’s failure to seek enforcement of the COLA sooner than she did. Upon remand, the trial court was asked to clarify its conclusion regarding defendant’s “waiver by performance.”
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