Noble v. Noble
| Decision Date | 04 December 2020 |
| Docket Number | No. 2020-077,2020-077 |
| Parties | Gennifer Noble v. Aaron Noble |
| Court | Vermont Supreme Court |
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
On Appeal from Superior Court, Chittenden Unit, Family Division
Kurt M. Hughes of Murdoch Hughes Twarog Tarnelli, P.C., Burlington, for Plaintiff-Appellee.
Norman R. Blais, Burlington, for Defendant-Appellant.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. ROBINSON, J. Husband appeals the parties' final divorce order relating to property division, arguing that the family division erred by: (1) barring him from conducting discovery of a non-party concerning a trust in which wife had an interest; and (2) awarding wife a lump sum as a retroactive temporary spousal award even though wife had neither requested nor been granted temporary spousal maintenance. We affirm.
¶ 2. Husband's challenge regarding discovery from a non-party arises from the trial court's pre-trial order denying his motion to authorize a subpoena to a non-party, and his challenge to the retroactive temporary spousal maintenance award is a response to the court's final divorce order. We consider each order, and husband's arguments, in turn.
¶ 3. We reject husband's challenge to the trial court's order declining to authorize a subpoena to a third party for information regarding the assets of a trust established by wife's grandfather and naming her as a beneficiary. Wife's grandfather had established a trust in his full control until his death, then held for the benefit of wife's grandmother during her life. Upon wife's grandmother's death, a share of the trust assets was directed to an ongoing trust for the benefit of grandfather's children, including wife's father. The trust document further provided:
Upon the death of any such child [including father], the Trustees shall pay over so much of the share designated for his or her benefit then remaining in the hands and possession of the Trustees, free of all trusts, under this instrument to or for the benefit of such person or persons in the class consisting of the issue of said child, in whatsoever manner, either outright or in trust, with different interests in different appointees (including the creation of new powers of appointment and the imposition of lawful conditions upon any appointee) as said child shall appoint by a will executed after the death of the Settlor referring specifically to the power herein given.
This provision limited the class of successor beneficiaries to wife and any siblings.
¶ 4. During the pendency of the divorce, husband moved for permission to engage in discovery of wife's father, as trustee, concerning the trust's assets. In particular, husband requested "reasonable discovery of the Trustee regarding the Trust assets and disbursements, the other beneficiaries whose interests in the Trusts have vested, and the relationship of the Trustee to such beneficiaries, including Plaintiff." In the memorandum accompanying his motion, husband explained that he had first sought discovery from wife through interrogatories, but wife denied having any information about the trust. Without the ability to seek discovery from the trustee of the now-irrevocable trusts, husband had "no other legitimate means to secure any information regarding the principal of the Trusts, the income or interest generated by the Trusts, or even the number of 'grandchildren' beneficiaries who now have a vested interest in the Trusts."
¶ 5. The court denied the motion, concluding that husband was not entitled to the requested discovery. The court explained that wife's father held the trust as the trustee, for hisexclusive benefit, and "in theory, he could spend it all." Further, the court concluded that the trust was irrevocable because the settlor—wife's grandfather—was now dead, but that wife's father had a "power of appointment" that gave him the "unfettered right to create a will that directs all of the trust assets to [wife's] brother or otherwise to restrict [wife's] right to benefits from the trust assets." The court concluded that wife's interest "is not vested and is subject to modification or divestment so long as [wife's] father is alive and retains the right to direct all of the trust assets to [wife's] sibling(s) and eliminate [wife's] interest [altogether]." For this reason, the court concluded that husband was not entitled to the requested discovery from father under 15 V.S.A. § 751(b)(8), as amended following this Court's decision in Billings v. Billings, 2011 VT 116, 190 Vt. 487, 35 A.3d 1030.
¶ 6. On appeal, husband contends that § 751(b)(8)(C) does not preclude him from subpoenaing wife's father because the trust at issue was irrevocable, and the provision's limitations on discovery from nonparties therefore do not apply.
¶ 7. We review questions of statutory interpretation without deference to the family division, and we apply the statute in accordance with its plain meaning if the language is clear. Collins v. Collins, 2017 VT 70, ¶ 16, 205 Vt. 251, 173 A.3d 345.
¶ 8. We conclude that the court did not err in denying the motion to allow discovery. The plain language of the statute unequivocally precludes a subpoena for information concerning the trust's assets because wife's interest in the trust, even if it is properly characterized as vested, is subject to modification or divestment. Husband's contrary statutory argument misses the mark because it focuses on the wrong prong of § 751(b)(8)(C). This plain-meaning understanding of the statute is consistent with the history and purpose of the provision, which the Legislature added to the statute in response to this Court's decision in Billings, 2011 VT 116, as well as with our post-amendment case law.
¶ 9. The nonexclusive list of factors a court may consider in dividing the parties' property in a divorce includes "[t]he opportunity of each [party] for future acquisition of capitalassets and income." 15 V.S.A. § 751(b)(8). The statute elaborates on the application of this factor to expectations of gifts or inheritances, providing that, for purposes of § 751(b)(8):
¶ 10. This statute does three things. First, it establishes that a party's interest in an inheritance that has not yet vested and is capable of modification or divestment is not considered part of the marital estate for purposes of equitable division of marital property. Id. § 751(b)(8)(B). Second, it provides that, although the unvested interest in an inheritance is not itself marital property, the court may nevertheless consider the parties' expectations of gifts or inheritance as evidenced by their lifestyles, decisions during the marriage, and other competent evidence. Id. § 751(b)(8)(A). The statute cautions against speculating about the value of an expected inheritance in the absence of competent evidence. Id. Finally, it substantially restricts the circumstances under which a party can subpoena a nonparty to provide information about the nonparty's assets or revocable estate planning documents, precluding such discovery unless a party's interest in aninstrument is vested and not capable of modification or divestment. Id. § 751(b)(8)(C). This limitation on discovery protects nonparties from intrusive discovery into their private financial matters with respect to a party's expectancy that remains contingent, while authorizing reasonable discovery when a party's interest is fixed. Although the Legislature limited the parties' discovery from third parties relating to expected gifts or inheritance, it made it clear that parties are free to try to prove such expectations at trial by any competent evidence. See id. § 751(b)(8)(D).
¶ 11. Husband's motion to authorize discovery is governed by the provision relating to discovery from nonparties: § 751(b)(8)(C). Because husband primarily seeks information about the trust's income, assets, or value, his request is governed by § 751(b)(8)(C)(i), which expressly restricts discovery from a nonparty regarding "his or her assets, income, or net worth." The nonparty here is wife's father as trustee, who holds legal title to the trust assets, and the primary information husband seeks relates to the trust's "assets and disbursements."
¶ 12. Pursuant to the plain language of § 751(b)(8)(C)(i), the nonparty trustee cannot be...
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