Meyncke v. Meyncke

• Decision Date: 13 September 2013
• Docket Number: No. 12–475.,12–475.
• Citation: 194 Vt. 556,2013 VT 82,82 A.3d 585
• Court: Vermont Supreme Court
• Parties: Judith MEYNCKE v. Robert MEYNCKE.

194 Vt. 556

82 A.3d 585

2013 VT 82

Judith MEYNCKE

v.Robert MEYNCKE.

No. 12–475.

Supreme Court of Vermont.

Sept. 13, 2013.

Charles S. Martin and Lisa Marie Campion (on the brief) of Martin & Associates, P.C., Barre, for Plaintiff–Appellant/Cross–Appellee.

Thomas C. Nuovo of Bauer Gravel Farnham, Burlington, for Defendant–Appellee/ Cross–Appellant.

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

REIBER, C.J.

¶ 1. Ex-husband and ex-wife ¹ each appeal a post-judgment order of the superior court, family division, awarding wife maintenance arrears and attorney's fees, and construing a provision in the final divorce order distributing the parties' retirement accounts, including husband's 401(k) account,² which decreased in value substantially before it could be divided because of delay in issuance of a qualified domestic relations order (QDRO). We affirm in part and remand for further proceedings consistent with this opinion.

¶ 2. The parties divorced in October 2007 following a twenty-four-year marriage. The final divorce order divided evenly the marital property, including the parties' retirement accounts, and awarded wife $6390 per month in maintenance for thirteen years. The divorce court required husband to prepare a proposed order to minimize the transfer of accounts and equalize the amounts held by the parties. Husband did not prepare a proposed QDRO before wife filed a motion to alter or amend the final divorce order. In January 2008, wife filed a proposed QDRO, to which husband objected in part, but the QDRO never issued because wife filed a notice of appeal after the court denied her motion to alter or amend the final order.

¶ 3. In January 2009, wife withdrew her appeal of the final divorce order. During the period between issuance of the final order in October 2007 and dismissal of wife's appeal in January 2009, the retirement accounts, particularly husband's 401(k) account, depreciated significantly in value.

¶ 4. Meanwhile, the parties continued to litigate over maintenance payments. Husband lost his job in late 2007 and was not reemployed until April 2008. In May 2008, he moved to modify the maintenance award. The court denied the motion in October 2008 and found husband in contempt for failure to pay his full maintenance obligation to wife. When husband failed to purge himself of the contempt, the court issued a wage-withholding order. In August 2009, this Court affirmed the trial court's denial of husband's motion to modify maintenance. Meyncke v. Meyncke, 2009 VT 84, 186 Vt. 571, 980 A.2d 799 (mem.).

¶ 5. Wife's second motion for contempt and enforcement was granted in April 2010. On August 30, 2010, after a series of post-judgment motions, the court issued an amended judgment order prepared by wife's attorney that required husband to pay wife $106,607 within thirty days to purge himself of contempt and $17,355 in attorney's fees. To collect on the Vermont judgment, wife engaged an attorney in Missouri, husband's last known residence, and registered the judgment there in May 2011.

¶ 6. In May 2012, wife filed a motion with the superior court to enforce the final divorce order as well as the August 2010 judgment. The motion requested that husband be required to file a QDRO giving her one-half of the retirement accounts as valued in the final divorce order. The motion also sought payment of all maintenance arrearages, interest, and attorney's fees owed. Both parties requested an offset against child support owed by wife.

¶ 7. In July 2012, husband paid wife $138,729 pursuant to documents titled “Satisfaction of Judgment” and “Settlement Agreement and Specific Release.” In the former document, filed with a Missouri circuit court, wife stipulated that the sum paid by husband was for past maintenance owed and “satisfied in full” the “judgment herein.” In the latter document, wife acknowledged that the August 30, 2010 Vermont order was “resolved and settled,” and that husband was completely released and discharged “from any and all liabilities directly or indirectly arising out of the Vermont Superior Court's Order dated August 30, 2010.”

¶ 8. On October 30, 2012, the superior court decided wife's May 2012 motion to enforce based solely on the pleadings and applicable law. Regarding valuation of the retirement accounts, the court ordered husband to prepare a QDRO dividing the accounts equally subject to any appreciation or depreciation between the date of the final divorce order and the date of distribution. The court reasoned that such a ruling was consistent with the final divorce and was equitable considering that the delay in issuing the QDRO was more attributable to wife than husband. The court opined that even if the delay occurred through no fault of either party, equity favored having the parties share in any loss resulting from the delay.

¶ 9. As for maintenance, the court concluded that the July 2012 settlement agreement applied only to amounts owed up to the August 2010 judgment, and that from August 2010 until the date of its decision, husband owed wife $16,563 in maintenance arrears and interest after he was credited for certain specified past payments. The court also awarded wife $5000 in attorney's fees. The court made no ruling on the request for an offset between the parties' child support and maintenance arrears.

¶ 10. On appeal, wife argues that the superior court erred by: (1) not requiring a QDRO awarding her one-half of the value of husband's retirement accounts as calculated by the court at the time of the final divorce order; (2) allowing husband to determine the current value of the accounts rather than holding an evidentiary hearing; (3) applying certain prior payments made by husband to wife against current maintenance arrears rather than against interest on maintenance arrears from the August 2010 judgment; and (4) allowing an $1893 prior payment from husband to wife as a credit against maintenance arrears. Wife also argues that the court abused its discretion by failing to rule on whether her child support arrears may be offset against husband's maintenance arrears.

¶ 11. For his part, husband argues that the court erred by awarding wife additional maintenance arrears and attorney's fees even though: (1) he had paid all maintenance and attorney's fees owed under the final divorce order; (2) the July 2012 settlement agreement effectively vacated the August 30, 2010 judgment, in which the amount of maintenance owed had been incorrectly calculated due to a mathematical error contained therein; and (3) the parties stipulated in their settlement agreement that they would each bear their own legal fees. According to husband, the court's failure to rule on and grant his motion under Vermont Rule of Civil Procedure 60(a) to correct the August 30, 2010 judgment resulted in the court erroneously determining that he owed wife maintenance in excess of his obligation under the October 2007 final divorce order.

I.

¶ 12. We begin with the question of how the retirement accounts, and specifically husband's 401(k) account, should be divided after their diminution in value. Wife contends that under “the four corners” of the final divorce order she is entitled to a QDRO for a sum calculated as one-half of the retirement accounts as valued by the court at the time of the October 2007 final divorce order. See Sumner v. Sumner, 2004 VT 45, ¶ 9, 176 Vt. 452, 852 A.2d 611 (stating that divorce decrees are interpreted according to contract principles). As support for this argument, wife points out that the court in the final divorce order: (1) noted that the total value of the retirement accounts was $911,420 on the day evidence in the divorce case was closed; (2) determined that those accounts were to be divided “evenly”; and (3) noted, in discussing the appropriate amount of maintenance, that both parties “will start with about $443,000 in retirement or other tax deferred savings.” In wife's view, these statements unambiguously demonstrate the court's intent to award wife a QDRO in an amount equal to one-half of the retirement accounts as valued in the final divorce order.

¶ 13. In further support of this contention, at oral argument before this Court, wife quoted from a transcript of the final divorce hearing a dialog between the divorce court and the parties' attorneys concerning the valuation of the retirement accounts. In that dialog, the parties' attorneys were discussing valuation dates of various accounts, when the court asked them if they wanted to divide the accounts “as of today's date regardless of future experience.” Wife's attorney initially expressed some confusion as to what the court meant, but ultimately agreed to what the court was describing. Husband himself agreed that the risk was his, noting that the only account that concerned him was a relatively small one that he was not sure he could change. Wife argues that this dialog is not only evidence of the court's intent in its final order, but also of husband's waiver of any argument that it was not the court's intent.

¶ 14. Husband has moved to strike the divorce transcript and wife's reliance upon it, noting that it was not part of the record in the enforcement proceeding that is the subject of this appeal. Wife counters that the final divorce hearing and the post-divorce hearing on her motion to enforce are both part of the same proceedings, and that the transcript of the divorce hearing is part of the record of those proceedings.

¶ 15. Putting aside whether we may review the transcript as part of the overall divorce proceedings, we note that wife cited the transcript in support of her valuation argument for the first time during oral argument before this Court. Wife did not submit the transcript to the superior court for its review in connection with her motion to enforce. Nor did she cite to the transcript in her principal brief or reply brief on appeal. Because wife did not give the...