Boisselle v. Boisselle

• Decision Date: 24 June 1994
• Docket Number: No. 90-321,90-321
• Citation: 162 Vt. 240,648 A.2d 388
• Parties: Roberta A. BOISSELLE v. Raymond N. BOISSELLE.
• Court: Vermont Supreme Court

Page 388

648 A.2d 388

162 Vt. 240

Roberta A. BOISSELLE v. Raymond N. BOISSELLE.

No. 90-321.

Supreme Court of Vermont.

June 24, 1994.

Paul R. Morwood, South Burlington, for plaintiff-appellee.

Mary P. Kehoe and Deborah Weiss of Saxer, Anderson, Wolinsky & Sunshine, Burlington, for defendant-appellant.

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

DOOLEY, Justice.

On motion to modify by plaintiff, Roberta Boisselle, the Chittenden Superior Court modified a divorce decree to amend a provision dealing with the disposition of the family residence. Defendant, Raymond Boisselle, appeals arguing that the court did not have the power to modify the preexisting property award. We agree and reverse.

The parties were divorced on October 25, 1984. The court's order, which was based on a stipulation, gave custody of the parties' minor child to plaintiff and required defendant to pay $75 per week in child support, with a cost of living adjustment provision. The provision critical to this case gave plaintiff exclusive use and possession of the family home on North Avenue in Burlington during the minority of the child. The order went on to require that the property be sold when the child reached her eighteenth birthday, with the proceeds to be split equally by the parties, and to require that the parties share certain maintenance costs. The order also distributed the available personal property and provided that neither party would be entitled to alimony "now or permanently in the future."

Plaintiff moved to modify the order in June 1988, some three years before the child was to turn eighteen. Some time after the divorce, plaintiff developed a severe case of multiple sclerosis, which rendered her unable to work. As a result, plaintiff's income fell to $680 per month that she received from Social Security and a disability insurance policy. Plaintiff requested that the order be changed to allow her to remain in possession of the house, which she had modified to accommodate her disability, throughout her life. At the time the court addressed the modification question, the house was worth approximately $90,000, with an outstanding mortgage balance of $17,000 and a monthly mortgage payment was $202 per month.

Reasoning that V.R.C.P. 60(b)(5) allowed the court to prospectively modify a judgment in proper circumstances and that changing the date of sale of a house is a prospective modification, the court granted the motion and postponed the sale until plaintiff's condition "requires her to live elsewhere." The court justified its order on the unforeseen deterioration of plaintiff's health and the absence of hardship on defendant. Defendant appeals arguing that the court's order was an improper modification of a final property award. We agree.

As the trial court found, Vermont law is clear that the court cannot modify the property disposition aspects of a divorce decree absent circumstances, such as fraud or coercion, that would warrant relief from a judgment generally. See Viskup v. Viskup, 149 Vt. 89, 90, 539 A.2d 554, 555-56 (1987). We have applied this principle to cases in which the timing or manner of the transfer of property is in issue. For example, in Viskup, defendant was required to pay a property award to his wife in three annual installments. When defendant defaulted on the first installment, plaintiff moved to modify the payment schedule to accelerate the obligation to pay the entire amount. This Court held that in the absence of a provision allowing for acceleration, the change in the payment schedule was an improper modification of a property disposition. Id. at 91, 539 A.2d at 556. In Robinson v. Robinson, a case similar to that now before us, we reversed a modification order that extended the time in which the spouse awarded the family home had to pay off an amount awarded to the other spouse as settlement of the latter's property interest in the home. 130 Vt. 558, 562, 298 A.2d 556, 558-59 (1972). Although the modification did not change the amount of payment, the change in the timing of payment was sufficient to bring the case within the prohibition. Id. at 561, 298 A.2d at 558; see also Clifford v. Clifford, 133 Vt. 341, 344-45, 340 A.2d 60, 62 (1975) ("adjustment of property rights accomplished by transfer of property and payment of money over a long period" cannot be modified absent grounds for modifying ordinary judgment).

The trial court here recognized the limitation on modification of property disposition awards but found that grounds to modify a civil judgment applied. Specifically, the court relied upon V.R.C.P. 60(b)(5), ¹ which allows relief from judgment when "the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application." The court found in the last phrase the power to modify a judgment to the extent the modification operates on the prospective application of the judgment and is required by the equities of the situation. Thus, the court found it could, and did, "change the prospective effect of that judgment to allow plaintiff to remain in the house."

V.R.C.P. 60(b)(5) is identical to Federal Rule of Civil Procedure 60(b)(5), which implements the holding in United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932), an equity case dealing with the modification of an injunction. In Swift, the United States Supreme Court held that federal courts have the power to revoke or modify an injunction which "has been turned through changing circumstances into an instrument of wrong." Id. at 114-15, 52 S.Ct. at 462-63. The Court distinguished between "restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change," which cannot be modified, and injunctions "that involve the supervision of changing conduct or conditions and are thus provisional and tentative," which can. Id. at 114, 52 S.Ct. at 462.

Our one case interpreting Rule 60(b)(5) is so dissimilar from this one that it supplies little guidance. See J.L. v. Miller, 158 Vt. 601, 614 A.2d 808 (1992). The federal cases show that the primary significance of Rule 60(b)(5) is with regard to injunctions, although its application is not limited to equity actions. 11 C. Wright & A. Miller, Federal Practice & Procedure § 2863, at 205 (1973); see also Kock v. Virgin Islands, 811 F.2d 240, 244 (3d Cir.1987) (rule refers primarily to prospective effect of equity decrees). That source is important because of the "basic principle that an injunction does not create any vested rights for a plaintiff; it is simply a remedy designed to vindicate pre-existing rights." Stewart v. General Motors Corp., 756 F.2d 1285, 1291 (7th Cir.1985). Building on this principle, one court defined prospective application, the triggering requirement of the rule, as follows:

Thus, the standard we apply in determining whether an order or judgment has prospective application within the meaning of Rule 60(b)(5) is whether it is "executory" or involves "the supervision of changing conduct or conditions," within the meaning of ... Swift.

Twelve John Does v. District of Columbia, 841 F.2d 1133, 1139 (D.C.Cir.1988). We can find no federal case that defines a judgment comparable to the property distribution decree in this case as executory, subject to modification under Rule 60(b)(5). Cf. Marshall v. Board of Educ., 575 F.2d 417, 425 (3d Cir.1978) (judgment at law for damages is inherently final and not subject to modification under Rule 60(b)(5)).

There are, however, a few state court cases involving the application of civil rules modeled on F.R.C.P. 60(b)(5) to divorce property decrees. Particularly instructive is Lloyd v. Lloyd, 23 Ariz.App. 376, 533 P.2d 684 (1975), ² in which a husband sought under the Arizona rule, numbered Rule 60(c)(5), to modify an order requiring him to pay his wife $6,000 in sixty monthly installments of $100 each. The court held that the rule did not apply to a lump sum payment, whether alimony or property, and whether payable immediately in full or in installments, reasoning:

It seems that the type of final judgment to which clause (5) of Rule 60(c) is most often applied is one providing for injunctive relief. Other types of final judgments may have a continuing effect and be subject to modification in their prospective application, such as continued enforcement of liens or a declaratory judgment directed to matters in the future. However, where the final judgment is an award of money, Rule 60(c)(5) would not be applicable.

Id. 533 P.2d at 685. Other courts presented with attempts to modify property provisions using the state equivalent of F.R.C.P. 60(b)(5) have denied relief, usually by reiterating the inability to modify a property disposition provision. See Ferguson v. Olmsted, 168 Colo. 374, 451 P.2d 746, 749 (1969) (denial of relief under Colorado equivalent of F.R.C.P. 60(b)(5) affirmed because property decrees cannot be modified); McBride v. McBride, 112 Idaho 959, 739 P.2d 258, 261 (1987) (property disposition not prospective); ³ Smith v. Smith, 547 N.E.2d 297, 299-300 (Ind.Ct.App.1989) (trial court decision refusing to amend property disposition under Indiana equivalent of F.R.C.P. 60(b)(5) affirmed because property awards based on stipulations merged into decrees cannot be modified except as agreement prescribes or unless parties later consent); cf. Foster v. Foster, 684 P.2d 869, 872 (Alaska 1984) (allowing modification under Rule 60(b)(6), although trial court granted modification under Rule 60(b)(5), after concluding 60(b)(1)-(5) did not apply).

We agree with the other courts that have considered the issue. The property disposition involved a fixed distribution of assets that vested rights in the parties. Plaintiff characterizes the issue as one of the timing of...