Morissette v. Morissette

• Decision Date: 15 April 1983
• Docket Number: No. 169-81,169-81
• Citation: 143 Vt. 52,463 A.2d 1384
• Parties: Elsa S. MORISSETTE v. Edward Paul MORISSETTE.
• Court: Vermont Supreme Court

Page 1384

463 A.2d 1384

143 Vt. 52

Elsa S. MORISSETTE v. Edward Paul MORISSETTE.

No. 169-81.

Supreme Court of Vermont.

April 15, 1983.

Reargument Denied June 7, 1983.

John S. Burgess and James W. Stevens, Brattleboro, for plaintiff-appellant.

Allan R. Keyes and Joseph H. Badgewick of Ryan Smith & Carbine, Ltd., Rutland, for defendant-appellant.

Before BILLINGS, C.J., HILL, UNDERWOOD and PECK, JJ., and LARROW, J. (Ret.), Specially Assigned.

UNDERWOOD, Justice.

By two separate but interrelated orders the trial court reached a final resolution of plaintiff's complaint for divorce. The first, entitled Decree and Order, dated April 18, 1980, granted the defendant a divorce on his counterclaim, and determined custody of the parties' minor daughter, visitation rights, child support, and a division of the marital property. It did not, however, evaluate the plaintiff's equity in the stock of a closely held corporation, Country Kitchen, Inc., reserving that determination for a subsequent hearing.

The second, entitled Final Decision and Order, dated March 24, 1981, determined the fair market value of plaintiff's equity in the stock of Country Kitchen, Inc., the method by which plaintiff would convey her interest in said stock to the defendant, and the note and security she would receive in return.

The plaintiff timely appealed the Final Decision and Order as well as the order denying her amendment to her motion for a new trial, and "any and all other orders, judgments, and decrees issued in connection with the captioned matter." In this regard, she briefed the following issues:

1. Did the trial court err in permitting plaintiff to proceed with her divorce action without sua sponte appointing a guardian ad litem for her?

2. Did the trial court err in permitting an attorney not admitted to practice before the courts of Vermont to influence the course and conduct of plaintiff's divorce case?

3. Is there a final order in this case?

4. Did the trial court err in limiting itself to the disposition of only such real and personal property of the parties as specifically set forth in their written stipulation dated March 26, 1979?

5. Did the trial court err in its findings and conclusions as to the fair market value of the plaintiff's ownership equity in the stock of Country Kitchen, Inc.?

6. Did the trial court err in failing to grant a hearing to plaintiff on her motion for a new trial?

It would be an understatement to say that there is anything mundane about this divorce case. More often than not it taxed the patience of a Job, and required the wisdom of a Solomon. The trial court is to be commended for maintaining its judicial temperament throughout and steadfastly holding the litigants on course.

Plaintiff commenced her divorce action by a complaint dated August 31, 1976. After nearly 15 pages of docket entries and the lapse of nearly 3 years, the case was heard on its merits. It was another year before the case could be finally resolved at the trial court level. During that 4 year period the plaintiff hired nine different lawyers and discharged eight of them. In addition there were times when she ostensibly appeared pro se, but simultaneously counseled with an attorney who was not admitted to practice in the State of Vermont.

At the first hearing on the merits the parties filed a written stipulation, which each had signed on March 26, 1979. The stipulation was designed to resolve both temporary and permanent matters. The court accepted the stipulation as voluntarily entered into by the parties and fair under the circumstances. The Decree and Order dated April 18, 1980, closely tracked this stipulation. The court granted a divorce on the ground that the parties had lived separate and apart in excess of six consecutive months and there was no reasonable probability that they could reconcile and resume marital relations. The court further granted custody of the parties' minor daughter to the plaintiff, visitation rights to defendant, and ordered the defendant to pay child support. The parties' residence on Meadowbrook Road, Brattleboro, together with its furnishings, was decreed to the plaintiff, subject to a mortgage thereon which she was to assume. The parties' apartment house on Western Avenue, Brattleboro, together with its furnishings, was decreed to the defendant, subject to a mortgage thereon which he was to assume. Plaintiff waived alimony and attorney fees, so no order was made in that regard.

Pursuant to the terms of the stipulation, plaintiff was to sell to the Country Kitchen, Inc. her 100 shares of stock therein for a price equal to 45% of the value of the parties' ownership equity, which represented 96% of the total stockholders' equity. The parties, believing that they could agree as to the terms of sale and their ownership equity in the stock if the court would determine the fair market value of the assets of Country Kitchen, Inc., requested the court to limit itself in this regard. The court did so, and determined fair market value of those assets to be $500,000.

Thereafter it became clear that the parties could not reach an agreement as to plaintiff's equity interest in her 100 shares of stock, nor to the terms of the note and the type of security that would be given her in exchange for them. Therefore, a further hearing was required. At this hearing the court determined that plaintiff's ownership equity in Country Kitchen was $56,859.62. It ordered the defendant to cause the corporation to execute and deliver to plaintiff a promissory note for that amount, with simple interest at 8% payable in monthly installments of $1100 each, and secured by a second mortgage of the assets of the corporation. Upon compliance with that provision plaintiff was ordered to surrender her 100 shares of stock to the defendant.

I.

Plaintiff first argues that the failure of the court, sua sponte, to appoint a guardian ad litem for her constitutes reversible error. She insists that the need for one was, or should have been, readily apparent to the court. She concedes, however, that neither she, the defendant, nor their respective attorneys moved to have a guardian ad litem appointed for her, nor did any one of them suggest upon the record any incompetency on her part. Plaintiff intimates that because the court knew or should have known from the evidence that she was incompetent, it was incumbent upon it, under V.R.C.P. 17(b), to appoint for her a guardian ad litem.

The plaintiff's argument is without merit. We have thoroughly reviewed the record and find no evidence which would have put the court on notice that she lacked the capacity to understand the nature of the proceedings. Moreover, for a judgment to be set aside it must be shown that the party was incompetent at the time of trial and that such incompetency was known to the opposing counsel who refused or neglected to suggest it on the record to the court, or it must be readily apparent from the record that the party had been previously adjudicated insane or incompetent and had not been discharged at time of trial, or that the party was an infant. Bielawski v. Burke, 121 Vt. 62, 67, 147 A.2d 674, 677 (1959); Billings v. Billings, 123 Vt. 324, 325, 187 A.2d 333, 334 (1963); Pettengill v. Gilman, 126 Vt. 387, 388, 232 A.2d 773, 774 (1967); Reporter's Notes, V.R.C.P. 17(b).

None of these situations being present in the instant case, we hold that the trial court did not err by not appointing a guardian ad litem for the plaintiff.

II.

Plaintiff argues, for the first time on appeal, that she was denied her constitutional right to effective legal counsel because of the pervasive involvement of an attorney not admitted to practice before the courts of Vermont. However, in civil cases a plaintiff has no constitutional right to have counsel provided. Caron v. Betit, 131 Vt. 53, 55, 300 A.2d 618, 619 (1972) (citing Goldberg v. Kelly, 397 U.S. 254, 270, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287 (1970)). Therefore, our rule that nonconstitutional issues not raised below are waived on appeal bars the plaintiff from prevailing on this issue. Pope v. Town of Windsor, 140 Vt. 283, 286, 438 A.2d 388, 390 (1981).

III.

The plaintiff declares that the court erred by not issuing a final order. If she is correct, her appeal must be dismissed. V.R.A.P. 5. The record, however, shows clearly that there is a final judgment which has been appealed to this Court.

The April 21, 1980, Decree and Order dissolves the marital relationship, provides for the custody and support of the minor child, provides that there will be no separate support for plaintiff, and disposes of all disputed property of the parties with the exception of the plaintiff's stock in Country Kitchen, Inc. The price to be paid plaintiff for her 100 shares of stock and the terms of the payment were expressly left open by the court's decree. Because this issue remained in the case, this Court dismissed an appeal of the April 21, 1980, Decree and Order for lack of a final judgment under V.R.C.P. 54(b).

Thereupon, the matter was set for hearing February 23, 1981, to determine the value of plaintiff's stock and the method of payment. The court rendered its Final Decision, Findings of Fact and Order on March 25, 1981. This order was an amendment to the April 21, 1980, order, adding provisions specifying the amount and method by which the defendant must pay for the plaintiff's stock. Thus the order of March 25, 1981, adjudicates all the remaining issues in the case and constitutes a judgment from which an appeal lies. V.R.C.P. 54(a) and (b).

"The test of whether a decree or judgment is final is whether it makes a final disposition of the subject matter before the Court." Woodard v. Porter Hospital, Inc., 125 Vt. 264, 265, 214 A.2d 67, 69 (1965). This test is met in the instant case. The fact that the final judgment was not embodied in a single document is irrelevant. There is no such requirement. Compare V.R.C.P. 58 wit...