Clifford v. Clifford
| Decision Date | 03 June 1975 |
| Citation | 340 A.2d 60,133 Vt. 341 |
| Parties | Erwin J. CLIFFORD v. Selma F. CLIFFORD. no. 171-72. |
| Court | Vermont Supreme Court |
John W. Brockway, White River Junction, for plaintiff.
John S. Burgess, Brattleboro, for defendant.
Before BARNEY, C. J., SMITH and DALEY, JJ., MARTIN, Superior Judge, and SHANGRAW, C. J. (Ret.), Assigned.
The defendant appeals from the judgment of the Windsor County (Superior) Court entered on a motion to modify the divorce decree obtained by the plaintiff in 1964. The plaintiff and the defendant were married on September 5, 1943. In 1949 Mrs. Clifford was diagnosed and treated for multiple sclerosis, a disease characterized by progressive deterioration. In 1964 the Cliffords were divorced on the ground of intolerable severity. The divorce decree orders were based on a stipulation made prior to the granting of the divorce.
The decree awarded the custody of the children born of the marriage to the plaintiff with visitation rights to the defendant. The defendant was decreed the homestead premises and an apartment building containing six apartments. These two properties were valued at approximately $50,000 and were conveyed free of any mortgage indebtedness. She was also awarded a monthly payment of $200 for a period of 120 months, or until she remarried; attorney fees; an arrearage of $300 in temporary support payments; and an automobile.
The defendant prays in her motion that the monthly payments be increased to $600 without time limitation and that they continue, except upon her remarriage, beyond the ten-year period which has now terminated. She asks that these payments survive the death of the plaintiff and become a charge against his estate and that the plaintiff be ordered to pay all her medical bills in excess of $50 per week. The basis for these requests is the advancement of her multiple sclerotic condition, increased expenses, and a decrease in the net income from the real estate decreed to her.
The plaintiff has remarried; he and his present wife conduct an incorporated auto dealership. Their separate and combined incomes far exceed that of the defendant.
At the time of the divorce the defendant was able to drive and to hold down gainful employment. Now she is unable to fully care for herself, requiring constant round-the-clock attention and daily medication. With the cessation of the monthly payments, her sole source of income is $50 per month in the form of mortgage payments resulting from the sale of the apartment house which she was unable to maintain and properly superintend. Her expenses include $40 per week plus room and board for the full-time housekeeper, and $50 per month for medication. She still lives in the unencumbered homestead.
The defendant does not contend here that the stipulation was other than fair at the time it was made. In addition to the undisputed facts above set forth, the court found that the defendant knowingly entered into the agreement with advice of able counsel and with knowledge of her illness and its prognosis. The development of her illness since 1964 was not out of the ordinary nor unforeseeable. The court further found:
Under the circumstances then existing, there is no evidence that the stipulation was not openly arrived at, and fair to the parties, particularly, considering that the libellee here was not the party securing the divorce and that custody and support of the children was awarded to the husband.
Concluding that the case was completely governed by our decisions in Braine v. Braine, 127 Vt. 211, 243 A.2d 797 (1968) and Hudson v. Hudson, 130 Vt. 225, 290 A.2d 31 (1972), the court denied the...
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