Frink v. Frink, 135-69

• Decision Date: 02 June 1970
• Docket Number: No. 135-69,135-69
• Citation: 266 A.2d 820,128 Vt. 531
• Parties: Ruth M. FRINK v. Neil T. FRINK.
• Court: Vermont Supreme Court

Page 820

266 A.2d 820

128 Vt. 531

Ruth M. FRINK v. Neil T. FRINK.

No. 135-69.

Supreme Court of Vermont.

June 2, 1970.

Ruth M. Frink, pro se.

Langrock & Sperry, Middlebury, with Marshall H. Eddy, Middlebury, on the brief, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

SMITH, Justice.

The libellant was granted a divorce from the libellee in the Chittenden County Court. The parties entered into a stipulation agreeing on such matters as the division of the property of the couple, the custody of the four minor children of the parties, and also containing a provision that the libellant would assume the care and support of the children of the parties, and that the libellee would not be held responsible for such expense.

In making its findings of fact and order in connection with the cause between the parties, the lower court included in the findings and the order all the stipulations made by the parties in their agreement except upon the matter of the support of the minor children. On the matter of the support of the minor children, the court refused to follow the terms of the stipulation and ordered the libellee to pay to the libellant for the care and support of the minor children of the parties the sum of $30.00 per week. After the order was filed, the libellee moved the court to vacate the order and grant a new hearing. The court, in its discretion, denied the motion. The sole question presented here by the libellee is whether the trial court was bound to honor the provisions in the stipulation filed by the parties regarding support payments in view of the property settlements made between the parties by the terms of the stipulation.

By the terms of the stipulation, which were embodied in the findings of fact of the lower court, the libellee is to deed to the libellant all of his interest owned jointly by the parties in Burlington and Bristol, Vermont. The property in Burlington, in which the libellant and three of the minor children reside, was purchased by them for $17,500.00, upon which property there is a mortgage of $15,000.00, which, by the stipulation and court order, is to be assumed by the libellant. The property in Bristol, owned jointly by the parties, was also decreed to the libellant, except that a portion of this having already been sold, the sales proceeds of between $2,000 and $3,000 was to be paid to the libellant. The ages of the four children of the parties ranged from twenty to twelve, with the twenty-year old boy now a student at college.

The record of the case before us is that both parties were represented at the hearing by competent counsel. The libellant was present in the courtroom and the libellee, while not physically present in the courtroom, was apparently within calling distance of his counsel. On two different occasions during the hearing, the presiding judge of the court below indicated his dissatisfaction with that portion of the stipulation which relieved the libellee of all future support of his minor children. It was the presiding judge's clearly expressed opinion that he believed that fathers should be compelled to pay for the support of their minor children, and he cited the case of Martin v. Martin, 127 Vt. 313, 248 A.2d 723, in support of his expressed opinion. Also stated by the presiding judge, as shown by the record, was that he was giving notice to the parties that he would receive evidence on this particular phase of the case before him. No evidence on this part of the case was produced by the libellee, whose interest it was to protect the...