Joseph v. Joseph

• Decision Date: 18 July 2014
• Docket Number: No. 13–240.,13–240.
• Citation: 101 A.3d 900,2014 VT 66
• Court: Vermont Supreme Court
• Parties: Andrea JOSEPH v. Neil JOSEPH.

101 A.3d 900

2014 VT 66

Andrea JOSEPH

v.Neil JOSEPH.

No. 13–240.

Supreme Court of Vermont.

July 18, 2014.

Melvin D. Fink, Ludlow, for Plaintiff–Appellant.

Matthew T. Birmingham of Birmingham & Moore, P.C., Ludlow, for Defendant–Appellee.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and CRAWFORD, JJ.

Opinion

ROBINSON, J.

¶ 1. This case calls upon us to determine the effect of an arrearage accrued under a temporary order following a final divorce decree when the arrearage was not incorporated into the final order or otherwise reduced to judgment. Wife Andrea Joseph appeals the family court's denial of her motion to enforce husband Neil Joseph's obligations under a temporary divorce order after a final divorce decree issued. We affirm.

¶ 2. In December 2011, wife filed for divorce after twenty-three years of marriage to husband. In October 2012, the parties entered into a stipulation agreeing to equally divide certain joint

Morgan Stanley accounts. They also agreed in the stipulation that husband would continue to pay, out of the portion of the joint accounts designated to him, “those obligations that were being paid prior to the divorce action, which would include but not be limited to: mortgages, taxes, insurance and utilities for the properties that are owned by either one or both of the parties.” The trial court approved the stipulation and entered it as a court order.

¶ 3. The trial court held a two-day contested divorce hearing in March 2013. Wife concedes that in the context of the final divorce hearing she did not raise any questions about whether husband fulfilled his obligations under the October 2012 stipulation, and the question was not in any way addressed at the final divorce hearing. The court issued a final divorce decree on April 9, 2013 that distributed the marital estate nearly equally between wife and husband. Neither party appealed the final divorce decree nor sought any relief from the judgment.

¶ 4. On May 10, 2013, wife filed a motion for enforcement and contempt with respect to the October 2012 stipulated order, alleging that husband had failed to make some of the required payments during the pendency of the divorce and up to the entry of the final divorce decree. Wife alleged that she made a number of payments during the period between the trial court's acceptance of the stipulation and the issuance of the final decree for which she was not reimbursed, including mortgage, utility, and insurance payments. She also claimed that some obligations under the stipulation remained unpaid altogether, including insurance, utility payments, and property taxes on the marital property. Wife requested that the trial court take an accounting of husband's unpaid obligations, order payment, and find husband in contempt of the temporary order.

¶ 5. The trial court denied wife's motion, concluding that it lacked subject matter jurisdiction to enforce a temporary order after the final divorce decree became final. The trial court, citing this Court's decisions in Chaker v. Chaker, 155 Vt. 20, 581 A.2d 737 (1990), and Camara v. Camara, 2010 VT 53, 188 Vt. 566, 998 A.2d 1058 (mem.), reasoned that once the final divorce decree issued, the temporary order “merged into it and was extinguished.” Wife appealed to this Court.

¶ 6. Neither party disputes that prospective obligations under the stipulation are superseded by the final order. The issue on

appeal is whether arrearages accrued under a temporary order, which were not reduced to a separate judgment and were not raised or addressed at the final divorce hearing, are enforceable after the final hearing. Because this is a question of law, our review is nondeferential and plenary. Our Lady of Ephesus House of Prayer, Inc. v. Town of Jamaica, 2005 VT 16, ¶ 10, 178 Vt. 35, 869 A.2d 145.

¶ 7. Wife acknowledges that a final divorce decree may extinguish prospective obligations based on a temporary order, but argues that the final order cannot extinguish obligations already accrued while the temporary order was in effect. She further argues that obligations accruing through the temporary period cannot be fully litigated at the final hearing because arrearages may accrue while the temporary order continues to be in force between the final hearing and the court's issuance of the final divorce decree. Husband responds that he relied on the final hearing to resolve all issues as to property, debt, and other assets and that wife is now precluded from seeking enforcement of the temporary order.

¶ 8. We have not previously addressed the central issue in this case, and the two decisions featured most prominently in the parties' briefs and the trial court's opinion provide little guidance. In Chaker, the trial court had issued a temporary spousal maintenance order in September 1984. It issued a final spousal maintenance order in a different amount, as well as an order for arrearages that had accrued under the temporary order, in May 1985. This Court subsequently reversed that spousal maintenance order. 155 Vt. at 23, 581 A.2d at 739. On remand, in June 1988 the trial court issued a new spousal maintenance order for yet a different amount, and calculated the arrearage due for the period between the 1985 final order that was reversed by this Court and the 1988 actual final order. In calculating the arrearage due, the trial court had to determine which spousal maintenance obligation applied during the period in question. The trial court reasoned that the initial final order was no longer in effect because it was reversed on appeal and thus calculated spousal maintenance arrearages based on the 1984 temporary order that had preceded that 1985 initial final order. On appeal, this Court agreed that the trial court's analysis was “consistent with the statute and the proper effect of a temporary order only if the final order became effective with respect to maintenance on the day it was issued [in

June 1988].” Id. at 29, 581 A.2d at 742. However, the trial court had the discretion to make its 1988 spousal maintenance order retroactive at least to the date of the initial hearing; because it had not exercised its discretion to determine the effective date of the permanent maintenance award, and thus the termination date of the temporary award, we remanded to the trial court for a hearing on the question. Id. at 30–31, 31 n. 2, 581 A.2d at 742–43, 743 n. 2.

¶ 9. Although two statements in Chaker highlight that case's potential relevance to this case, ultimately the decision provides little relevant guidance. First, we pointed out that the applicable statute authorizes a court to award temporary maintenance “pending final hearing and further order of the court.” Id. at 29, 581 A.2d at 742 (citing 15 V.S.A. § 594a ). We noted that this expectation that a temporary order will be replaced by a final order “is consistent with the general law that temporary maintenance orders merge into, and are superseded by, the final order.” Id. These statements reinforce the uncontroversial principle that an ongoing spousal maintenance obligation in a temporary order is superseded by a final order, but do not squarely address the question here: whether arrearages accrued pursuant to the temporary order and not reduced to judgment survive a final order. Second, we expressly declined to consider whether the court “could establish a retroactive maintenance award covering the period for which the temporary award was in effect and superseding that award” and noted that neither party challenged the original determination of the arrearage under the temporary order due through May 1985. Id. at 30 n. 1, 581 A.2d at 743 n. 1. The question of whether a court can retroactively modify a temporary order and arrearage accrued thereunder—expressly left open in Chaker —is closely related to the question before us in this case.

¶ 10. In Camara, we addressed a wife's request that the husband continue to pay spousal maintenance under a temporary order during the pendency of the appeal of the final divorce decree. We explained that the purpose of temporary maintenance is to maintain the status quo between the parties while the divorce is pending and cited Chaker for the proposition that a temporary order is replaced by a final order. Camara, 2010 VT 53, ¶ 18, 188 Vt. 566, 998 A.2d 1058. We concluded that the temporary maintenance obligation terminated with the entry of the final decree, which did not

provide for maintenance. Id. ¶¶ 18–19. That case did not involve accrued arrearages under the temporary order, but rather the prospective enforcement of a temporary maintenance provision while an appeal of the final order was pending. Like our decision in Chaker, our holding in Camara relied on the general principle that temporary orders merge into, and are superseded by, the final divorce decree; like Chaker, Camara does not purport to address the post-final divorce status of an arrearage accrued during the pendency of a temporary order when that arrearage was not reduced to a separate judgment, raised at the final hearing or explicitly addressed in the final decree.

¶ 11. The applicable statutes likewise provide limited guidance. As noted above, the statute authorizing temporary orders contemplates that a temporary order will be replaced by a final order, but does not purport to address the question of what happens to an arrearage accrued under a temporary order. 15 V.S.A. § 594a. Parties can reduce arrearages accrued pursuant to temporary orders for maintenance, child support or suit money to judgment pursuant to 15 V.S.A. § 606(a), (b). This statute does not apply to property awards.

¶ 12. The statute governing property division, id. § 751, gives the court broad authority in dividing marital property with respect to both the factors the court may consider in its distribution and the property subject to the court's jurisdiction. Id. § 751(b) (allowing court to consider “all relevant factors,” including twelve statutory factors, when...