Ferris v. Ferris, 129-80

• Decision Date: 12 June 1981
• Docket Number: No. 129-80,129-80
• Citation: 140 Vt. 12,433 A.2d 304
• Parties: Barbara A. FERRIS v. Cyrus Y. FERRIS.
• Court: Vermont Supreme Court

Page 304

433 A.2d 304

140 Vt. 12

Barbara A. FERRIS v. Cyrus Y. FERRIS.

No. 129-80.

Supreme Court of Vermont.

June 12, 1981.

Edwin W. Free, Jr., of Richard E. Davis Associates, Inc., Barre, for plaintiff.

Cheney & Brock, Montpelier, for defendant.

Before BARNEY, C. J., and LARROW, BILLINGS, HILL and UNDERWOOD, JJ.

HILL, Justice.

The parties to this action were divorced in 1972. A stipulation regarding alimony was incorporated into the decree whereby plaintiff, Barbara Ferris, was to receive $8,500.00 per year. Payments were to terminate upon occurrence of any one of certain events, including the inheritance by plaintiff of her mother's estate. Also, alimony payments were to be reduced by such amounts as plaintiff received from any sources resulting from lifetime gifts from, or trusts created by, her mother, or from any outright bequests arising from her mother's death.

Plaintiff's mother, Violet Healy, was alive at the time of the 1972 divorce. She had made a will in 1964 establishing a trust of all her assets with plaintiff as sole beneficiary. In 1969, Violet Healy executed a codicil calling for cash bequests to plaintiff and her three children in the amount of $15,000 each. The remainder of the will was unaltered. Shortly thereafter, Violet Healy suffered a second, crippling stroke. Both parties admit they assumed she was thereafter incompetent to rewrite her will or to make a valid lifetime transfer of property.

During the interim between the 1964 execution of the will and her second stroke, Violet Healy's first husband died and she married Francis X. Healy. Unbeknownst to the parties, Violet Healy before her death in 1975 transferred to the joint ownership of Francis and Violet Healy her certificates of deposit, which had amounted to $180,000 at the time of the 1972 stipulation between the parties. Also, Violet Healy had drawn a new will leaving all her remaining estate to her husband.

Amidst a will contest and accusations that Francis X. Healy had used undue influence in causing his wife to rewrite her will, negotiations ensued between Francis X. Healy and plaintiff. An irrevocable trust was established providing for substantially the same result as Violet Healy's original will envisioned except that Francis X. Healy was named the first life beneficiary. Francis X. Healy died in late 1977 or early 1978. Plaintiff is currently life beneficiary of the trust and received income therefrom of $8,925.20 in 1978.

Defendant terminated alimony payments when plaintiff commenced receipt of monies from the trust. Plaintiff moved to find defendant in contempt for refusing to pay $3,541.65 in payments she claimed were owed. She prayed that defendant be ordered to pay that amount and, due to changed circumstances caused by inflation, requested that alimony payments be increased. Defendant countersued, requesting that the court adjudge that he was not liable for past alimony payments and terminate his future obligation.

The lower court concluded that the conditions specified in the divorce stipulation to bring about an end to alimony payments substantially occurred when plaintiff received money from the trust. It thereby ordered plaintiff to return $7,508.50 to defendant reflecting an overpayment of alimony in 1978 and terminated future payments.

Plaintiff claims that she has not received any income from lifetime gifts from, or trusts created by, her mother as specified in the divorce stipulation. The income, she contends, was from a trust created by an intervenor, Francis X. Healy. Citing Braine v. Braine, 127 Vt. 211, 213, 243 A.2d 797 (1968), plaintiff u...