Bassler v. Bassler

• Decision Date: 19 April 1991
• Docket Number: No. 89-464,89-464
• Citation: 156 Vt. 353,593 A.2d 82
• Parties: Linda Griffith BASSLER v. George Paul BASSLER and Dolores Bassler.
• Court: Vermont Supreme Court

Page 82

593 A.2d 82

156 Vt. 353

Linda Griffith BASSLER v. George Paul BASSLER and Dolores Bassler.

No. 89-464.

Supreme Court of Vermont.

April 19, 1991.

Corsones & Corsones, Rutland, for plaintiff-appellee.

Robert P. McClallen, Rutland, for defendant-appellant.

Miller, Cleary & Faignant, Rutland, for additional party-appellant.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

GIBSON, Justice.

Defendant George Bassler and additional party defendant Dolores Bassler (George's mother) appeal from a divorce judgment awarding plaintiff, Linda Griffith Bassler, the sum of $35,000 in satisfaction of any marital or other interest she may have in the lands, premises, and machinery held in George's and Dolores's names. We affirm.

I.

In September of 1983, Linda and her daughter, Lindsey, moved into a house on the Bassler estate in Wells, Vermont to live with George Bassler. The estate, which contained over 500 acres of land, was owned by Dolores, who lived in a separate residence thereon. The trial court found that Linda was orally assured by Dolores and George that she "did and would own the house and surrounding acreage (200 acres more or less) as the family home." Linda gave up her waitressing and catering jobs, and devoted her energies to the household. The couple made major improvements to their home, which was in great disrepair, and to the surrounding property. In 1986, with Dolores's knowledge, George and Linda took out a homeowner's insurance policy in their own names on their house, paying the premiums themselves.

In late 1984 or early 1985, Linda became pregnant. George agreed to marry her, but only after the execution of an antenuptial agreement. An agreement was prepared by George's attorney, and after several delays, the couple executed it on May 30, 1985, one day before they married. In relevant part, the agreement provided that Linda waived "all and every right whatsoever which she might have or acquire by law by such marriage in any and all property of every kind and character, real, personal, or mixed, now owned or which may hereafter be acquired by George P. Bassler."

Linda and George separated in August of 1988. Since the separation, George has continued to live on the estate; Linda, her daughter Lindsey, and Adam, who was born during the marriage, moved out and have been receiving assistance from the Department of Social Welfare.

On September 17, 1988, Linda filed a complaint for divorce. Thereafter, she moved to add Dolores Bassler as a party to the action. The trial court granted the motion "in an effort to pierce the veils which [Dolores] and George place around their assets." At trial, the extent of George's assets was obscured by a number of partially explained transactions. The court found, however, that George always had sufficient funds to meet his needs and desires, even though he had no regular paycheck or earnings record consistent with his lifestyle. When the family well-drilling business was liquidated during 1985 and 1986, George received $81,000 and Dolores withdrew $32,000, which she turned over to George. In 1986, George paid $43,000 for property in Wells that was sold in 1988 without profit. Also during the marriage, George purchased real property in Maine, putting it in Linda's name and subsequently selling it, apparently for a loss. The court awarded Linda $35,000 as her share of the marital assets.

On appeal, George and Dolores contend that (1) the Statute of Frauds bars Linda from asserting a marital interest in the house and surrounding land, and (2) the antenuptial agreement is valid and should have been enforced by the trial court. George also contends that the court made inadequate findings to support its award of $35,000 to Linda. Dolores argues that she was improperly added as a party.

II.

George and Dolores both assert that (1) there was no oral agreement regarding the house and surrounding land, and (2) even if there was such an agreement, the Statute of Frauds ¹ bars enforcement because Linda's part performance is insufficient to remove the agreement from the statute. Dolores argues additionally that the part-performance doctrine does not apply unless money damages are an inadequate remedy and that, in the instant case, the trial court implicitly acknowledged money damages to be adequate inasmuch as it awarded Linda a sum of money. Linda responds that (1) sufficient part performance has been shown, and (2) inadequacy of money damages is not a prerequisite to invoking the part-performance doctrine. We address appellants' arguments seriatim. ²

A.

George and Dolores first argue that there was no oral agreement with respect to the property. The trial court found that "Linda was assured by George and George's mother, Dolores[,] that the guest house was her family home and notwithstanding the various maneuverings between George and his mother Dolores, Linda did and would own the house and surrounding acreage (200 acres more or less) as the family home." On appeal, we must view the evidence in the light most favorable to the prevailing party, excluding the effect of modifying evidence. Only if a finding is clearly erroneous can it be overturned. McCormick v. McCormick, 150 Vt. 431, 434, 553 A.2d 1098, 1101 (1988). "Where there is a dispute in the testimony, it is up to the trial court, which can better judge the credibility of the witnesses, to resolve the dispute." Klein v. Klein, 150 Vt. 466, 469, 555 A.2d 382, 384 (1988).

In the instant case, George denied the existence of any oral agreement concerning the property, whereas Dolores, who never testified, admitted in her pleadings that there was an agreement to transfer the property, but that it was made with George only. Linda testified that an agreement was reached whereby she and George would purchase the property from Dolores for $200,000, to be paid in monthly installments of $600, with interest paid by plowing Dolores's driveway and maintaining her lawn. Linda also testified that they have paid $33,000 toward the purchase price. Moreover, as known to Dolores, George and Linda purchased a homeowner's insurance policy in their own names for the period of March 24, 1986 to March 24, 1987, and they later renewed the policy for an additional three years. Indisputably, there is a conflict in the evidence. After careful review of the record, we cannot conclude that the trial court's finding that there was an agreement is clearly erroneous.

B.

George and Dolores acknowledge that, under the doctrine of part performance, an oral agreement may be removed from the Statute of Frauds and enforced when the party claiming an agreement can show that, in reliance on the agreement, he or she suffered a substantial and irretrievable change in position. See Jasmin v. Alberico, 135 Vt. 287, 289-90, 376 A.2d 32, 33 (1977). They contend, however, that Linda did not suffer such a substantial and irretrievable change in circumstances.

Initially, we disagree with George and Dolores that only the actions of Linda, and not those of George, can be considered. If either George or Linda, or the two of them together, have an interest in the property, that interest is part of the marital estate and subject to the jurisdiction of the court. See 15 V.S.A. § 751(a), (b)(6). ³ Thus, we consider the actions of both Linda and George.

In Jasmin, we held that improvements such as "repairing a back porch, having gas piped to the house, making electrical and plumbing repairs and doing some landscaping" were indistinguishable from those of a tenant responsible for maintenance of leased premises and did not amount to a substantial and irretrievable change of position. 135 Vt. at 290, 376 A.2d at 34. The renovations made by George and Linda Bassler are, however, of a materially different nature from the repairs and improvements made in Jasmin. George and Linda installed hot water heaters, insulation, new siding, new flooring, a new furnace, and new windows and window frames; excavated and graded a road to the house; removed a barn; built a deck; and drained and cleared the brush around a pond. These activities show a substantial and irretrievable change in the position of Linda and George, and are more than enough to support the decision of the trial court to take the agreement out of the Statute of Frauds.

C.

Dolores contends that a prerequisite to invoking the part-performance doctrine is the inadequacy of money damages, pointing out that the trial court ordered that Linda be paid $35,000 for her interest in the marital estate. Linda concedes that inadequacy of money damages is a prerequisite for specific performance, but contends that it is not a requirement for application of the part-performance doctrine.

Dolores and George never raised this argument before the trial court and have, therefore, waived it. American Trucking Ass'ns v. Conway, 152 Vt. 383, 387, 566 A.2d 1335, 1337 (1989) ("issues not raised before the trial court are waived on appeal"). Nevertheless, we point out that Linda made no request for specific performance. Instead, she merely requested that the court consider the marital interest in the house and surrounding land when it distributed the marital assets. See 15 V.S.A. § 751. Given the posture of the case, the trial court was not required to--and did not--determine if specific performance was appropriate. On the record before us, we decline to address the issue. ⁴

III.

George and Dolores alternatively contend that George and Linda's antenuptial agreement is valid and should control the distribution of any marital assets. In support of this contention, George maintains that the procedural requirements of voluntariness and disclosure were met. Dolores argues that Linda failed to meet her burden of showing by clear and convincing evidence that the agreement was entered into as a result of fraud, duress, or coercion. ⁵

The enforceability of an antenuptial agreement is governed by consideration of...