Mayo v. Mayo

• Decision Date: 26 September 2001
• Docket Number: No. 99-432.,99-432.
• Citation: 786 A.2d 401
• Parties: Jodi MAYO v. Michael MAYO.
• Court: Vermont Supreme Court

786 A.2d 401

Jodi MAYO v. Michael MAYO.

No. 99-432.

Supreme Court of Vermont.

September 26, 2001.

Present: AMESTOY, Chief Justice and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

ENTRY ORDER

Defendant Michael Mayo appeals the Lamoille Family Court's finding of contempt of court and order for sanctions which resulted in the modification of his and plaintiff Jodi Mayo's stipulated final divorce order. Defendant claims (1) plaintiff's motion to amend the stipulated final divorce order was untimely as beyond the one year time limit for modification of court orders under V.R.C.P. 60(b) when the grounds for modification are based upon subsection (3) of that rule; (2) plaintiff failed to allege a real, substantial and unanticipated change in circumstances when she sought modification of the spousal maintenance agreement contained within the stipulated final divorce order; (3) the court lacked jurisdiction to modify the stipulated final divorce order in a contempt proceeding; (4) the court's contempt sanction modifying the property settlement portion of the stipulated final divorce order was reversible error; and (5) the court's opinion on contempt is not supported by adequate findings of fact, and the findings relied upon are clearly erroneous. We agree that the court's finding of contempt was erroneous, and that the sanctions imposed resulted in an impermissible modification of the stipulated final divorce order, and accordingly reverse.

On July 31, 1998, plaintiff and defendant filed a stipulated final divorce order which the family court accepted and entered that same day. The order provides in part that the parties list the marital home for sale, and upon its sale distribute 55% of the sale proceeds to plaintiff and 45% to defendant. Defendant was awarded possession of the home until it sold. The order also provides that defendant pay plaintiff spousal maintenance for five years, commencing on August 1, 1998 in the amount of $1,000 per month for one year, then decreasing to $750 per month for the next two years, and to $500 per month for the final two years.

On January 22, 1999, the family court heard defendant's motion to modify the final divorce order, as well as plaintiff's objection to the motion and her request to enforce the final order. At the hearing, the judge recognized that both parties were at fault for the confusion and conflict that had arisen between them in this contentious divorce, and that they had been antagonizing each other to the detriment of their children. The judge noted that the defendant had been intentionally late in paying spousal maintenance to plaintiff, and that, to rectify the situation, "the first thing [defendant] ought to do is he ought to pay the alimony on time each and every month, together with the child support." At the end of this discussion, the judge addressed defendant's counsel and stated "I don't think you need an order." On February 17, plaintiff signed and then filed a motion to hold defendant in contempt, claiming that defendant was in violation of the court's January 22 "order"¹ that he pay the monthly maintenance and child support on time. Plaintiff alleged that at that time defendant was in arrears $850 in maintenance and $31.64 in child support payments. In her motion plaintiff sought punitive damages of $5,000 payable at the time of the sale of the home, if not sooner, attorney's fees, and interest on the late maintenance and support payment amounts.

A hearing was held on this motion on April 2, and on June 22 the court filed its order finding defendant in contempt. At the hearing, the court stated to the parties that "the contempt process is not one for reworking the original [divorce] order." In its order on the contempt charge, the court stated that defendant had not kept up on his monthly payments since the final divorce order had been issued and that defendant had testified to this failure, so there was no question whether he had violated the court's order. The court identified the issue before it as whether defendant had shown that he does not have the ability to make the required payments. It found that he did not have sufficient income to make the required support payments when the stipulation was presented to the court, and noted that defendant had testified at the April 2 hearing that, after the stipulated final divorce order was entered, his income did not change from its previous level. Therefore, the court concluded, defendant did not act in good faith when he signed the stipulation, and that in failing to make his required payments to plaintiff he acted in willful violation of the stipulated final divorce order. A hearing was scheduled for August 6 to determine "the appropriate means of ensuring compliance with the court's order."

On August 5, defendant filed a "memorandum regarding sanctions hearing" wherein he notified the court that he was then current on his child support and maintenance obligations, and suggested the creation of an escrow account to guard against future arrearages. On August 11, plaintiff submitted a "memorandum regarding sanctions" which requested different sanctions than the punitive damages and interest originally sought in her motion. Rather, while she still sought attorney's fees, she asked the court to revise the property and maintenance settlements, absolving defendant from all future maintenance payments and awarding her possession and full ownership of the marital home. On September 3, the court issued its order sanctioning defendant for his contempt. The court granted plaintiff's request and ordered defendant to vacate the home and convey his interest to plaintiff. Defendant was to be released from owing plaintiff any future maintenance payments from August 1, 1999 forward. Plaintiff was also awarded $2,500 in attorney's fees. This order was followed by an amended final order wherein the court used its "equitable powers" to set aside the parties' stipulated final order of divorce. This appeal followed.

Defendant begins his challenge to the proceedings below by assailing the timeliness of the motion to modify the property settlement, claiming that plaintiff's motion to amend the final order was untimely because it was made more than one year after the entry of the final divorce order. See V.R.C.P. 60(b)(3) (motion for relief from judgment or order, if based on fraud, must be made not more than one year after the judgment or order was entered). In plaintiff's August 11 "memorandum regarding sanctions," she argued that Rule 60(b)(3) could provide a means by which the property settlement could be revised, based upon "fraud, misrepresentation or misconduct." Plaintiff offered that "[c]onsidering all of these factors, plaintiff requests that the court revise the property settlement in such a way that defendant may be absolved from all future maintenance payments to plaintiff, and plaintiff may move back into the homestead residence with the children, and be awarded full possession and ownership of the residence." This constituted the first time plaintiff sought to modify the final order or raised any claim of fraud.

The procedure for modifying a property settlement arising from a divorce proceeding is well settled. "[T]he [family] 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." Boisselle v. Boisselle, 162 Vt. 240, 242, 648 A.2d 388, 389 (1994) (citing Viskup v. Viskup, 149 Vt. 89, 90, 539 A.2d 554, 555-56 (1987)). The rules providing for relief from divorce decrees are contained in V.R.C.P. 60, which provides generally for relief from civil judgments. When the relief sought is based upon allegations of fraud, misrepresentation, or other misconduct of an adverse party, as was alleged by plaintiff here, the relief must be sought within one year of the entry of the judgment or order at issue. V.R.C.P. 60(b)(3). The relief sought by plaintiff here was presented to the court more than one year after the entry of the order she sought to revise, the stipulated final divorce order. As such, her motion to revise the stipulated final divorce order was untimely, depriving the court of the ability to grant her motion.

Defendant next argues the court erred in modifying the maintenance award. Modification of a spousal maintenance award requires "a showing of a real, substantial, and unanticipated change of circumstances." 15 V.S.A. § 758; see also Gil v. Gil, 151 Vt. 598, 599, 563 A.2d 624, 625 (1989) (noting that such showing is a "jurisdictional prerequisite"). The burden of establishing that such a change has taken place is on the party seeking modification. Gil, 151 Vt. at 599, 563 A.2d at 625. A party's being found in contempt of an existing maintenance order does not necessarily give rise to the conclusion that there has also been a real, substantial, and unanticipated change in circumstances. The court made no finding that such a change in circumstances had taken place. Nor has plaintiff, who bears the burden of proof on this issue, offered that such a change has occurred. Therefore, it was incorrect for the court to modify the maintenance agreement.

Defendant next challenges the finding of contempt, claiming that the finding of fact in support of the contempt finding are clearly erroneous. When reviewing a trial court's finding of contempt, "we will not disturb the judgment unless the court's discretion was entirely withheld or was exercised on grounds clearly untenable." Vermont Women's Health Ctr. v. Operation Rescue, 159 Vt. 141, 147, 617 A.2d 411, 414 (1992) (citation and internal quotations omitted); see also V.R.C.P. 52(a)(2) (when reviewing a trial court's findings of fact, we will not set them aside unless they are clearly erroneous). We review a trial court's findings of fact in a light most favorable to the prevailing party, disregarding modifying evidence, with the burden...