Olio v. Olio, 11–310.

• Decision Date: 06 July 2012
• Docket Number: No. 11–310.,11–310.
• Citation: 2012 VT 44,54 A.3d 510
• Parties: Rochelle OLIO v. Joseph OLIO.
• Court: Vermont Supreme Court

54 A.3d 510

2012 VT 44

Rochelle OLIO

v.Joseph OLIO.

No. 11–310.

Supreme Court of Vermont.

July 6, 2012.

Mary G. Kirkpatrick of Kirkpatrick & Goldsborough, PLLC, South Burlington, for Plaintiff–Appellant.

Joseph Olio, Pro Se, Winooski, Defendant–Appellee.

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

ROBINSON, J.

¶ 1. The trial court dismissed wife's post-divorce motion for relief from judgment based on husband's alleged fraudulent concealment of assets without requiring completion of the discovery sought by wife, and without a hearing. We conclude that wife's motion was time-barred and affirm.

¶ 2. Wife and husband entered into a stipulated final divorce agreement, approved and incorporated into a final order by the family court on July 5, 2006. The final stipulation executed by the parties reflects that each was relying on the financial statements prepared by the other and states: “The parties represent that each has fully described his or her assets and liabilities to the other party to the best of his or her knowledge and ability, as set forth on his or her respective financial statements.” The agreement purported to effectuate an equal property division between the parties in its allocation of three parcels of real estate, a pension, a 401(k), multiple bank and investment accounts, and an interest in a promissory note.

¶ 3. Several months after the parties' divorce became final, wife filed a motion to set aside the final divorce decree pursuant to Vermont Rule of Civil Procedure 60(b), made applicable to family proceedings by Vermont Rule for Family Proceedings 4(a)(1), on several grounds, including that husband had not disclosed a bank account. The family court denied the motion, noting that both parties had personal checking accounts opened post-separation from which they paid their bills and neither party had included those accounts in their financial disclosures. The court also concluded that the post-judgment questions raised by wife's motion were relatively minor in the context of the overall case—the account in question had a balance of $10,600 at the time of the final divorce, as compared to a settlement that included $500,000 to be divided in five years, $360,000 in spousal maintenance to be paid over ten years, and three pieces of real estate.

¶ 4. In 2010, husband filed a motion to modify spousal maintenance on account of an unanticipated decline in his income. In the course of a July 6, 2010 hearing in connection with that motion, and after responding to a discovery request to producestatements from all of his bank accounts from January 1, 2009, husband disclosed on cross-examination, for the first time, that he used as his own a bank account listed in his sister's name. Although he initially testified that he had opened that account in 2010, after he had already produced statements in response to wife's discovery requests in connection with his motion to modify, on further questioning husband acknowledged that he had used the account for annual profit-sharing receipts. In light of husband's revelation about the previously undisclosed account, the court continued the hearing on the modification motion and instructed husband to produce the statements from this other account.

¶ 5. At a follow-up hearing on the matter, husband's sister explained that the account in question was a money market account that was part of a constellation of accounts owned by her and her spouse; it was used exclusively by husband, who was authorized to access the account. Before they invited husband to use the account, she and her spouse did not use it. She and her spouse paid the taxes on the interest associated with the account and then billed husband for the sum paid. Husband's sister could not recall when husband first began using the account, but husband interjected that it was after the July 2006 final divorce, and was “honestly” sometime in 2007. The court asked husband's counsel to find out more specifically, and agreed with wife's suggestion that she obtain the statement for the month preceding the time that husband was added to the account.

¶ 6. Before the conclusion of that hearing, husband's counsel represented, after a call to the bank, that husband had been added to the account on March 21, 2006—over three months before the final divorce stipulation and decree. Husband argued that the new disclosure of an account that predated the final divorce might have implications for a Rule 60(b) motion, but did not bear on husband's motion to modify. The court ordered husband to produce statements from the account from the months prior to March 21, 2006 and indicated that it would wait to see what motions, if any, wife wanted to file after that.

¶ 7. In August 2010, husband disclosed the money market accounts back to March 2006—the month he was formally added to the account. The March 2006 statement showed a balance at the beginning of March— before husband was formally added to the account on March 21—of $24,019. This disclosure conflicted with husband's sister's testimony that the account had been unused before husband was given access in light of husband's counsel's representation that husband was added to the account on March 21, 2006. Apparently husband subsequently provided wife a statement for the money market account for the prior month of February 2006; that statement showed a balance of $26,987 at the beginning of February 2006—again at odds with prior representations and testimony.

¶ 8. Neither the signed affidavit of income and assets husband had provided to wife before they signed the final stipulation in 2006, nor the summary settlement form filed on his behalf with the family court at that time included the undisclosed money market account that nominally belonged to his sister and brother-in-law. Wife has represented, and husband has not disputed, that the balance in that undisclosed account at the time of the final stipulation and divorce was $56,413.^*

¶ 9. In August 2010, wife filed a motion for contempt and enforcement requesting that the court order that husband disclose the money market account statements back to the inception of the account, before any of husband's money was held therein. She also sought to subpoena the records directly from the bank. In addition, wife filed a motion to reopen the divorce pursuant to Rule 60(b)(6) on the ground that husband had intentionally concealed assets from her, and had perpetrated a fraud upon her and the court.

¶ 10. In November 2010, the trial court granted husband's motion to quash wife's subpoena “pending the court's decision on [wife's] motions to enforce and to reopen.” The trial court's entry order also stated: “[husband] to provide the court with a copy of the Feb 2006 ... money market statement. From pleadings it appears it was provided to plaintiff. When did that account begin with a zero balance attributable to Mr. Olio?”

¶ 11. Then in December 2010, in its entry order granting husband's counsel's motion to withdraw, the trial court instructed: “Mr. Olio to provide the court w/ the balance in the ... money market acct. as of 3/26/06 when Mr. Olio was added to the account. This information to be provided to the court by 12/31/10.” Wife filed a motion to clarify the court's entry order, explaining that husband had already produced the March and February 2006 statements and requesting access to copies of statements from the account back to the time when there was first a positive balance in it—some time to be determined, but prior to the February 2006 statement. Around the same time, husband filed an affidavit under oath asserting that the monies in the money market account as of the beginning of February 2006 were funds that he had borrowed from family and were subject to repayment.

¶ 12. The trial court returned to this matter in August 2011 when it issued a ruling disposing of various outstanding motions. With respect to the motion to clarify, the court indicated that it simply sought the account statements that the parties already had, and there was nothing to clarify. With respect to wife's August 2010 motion for contempt and enforcement, the court concluded that husband had produced what he was ordered to produce and therefore denied the motion. The court did not refer to its prior November 2010 entry order asking when the account began with a zero balance. With respect to wife's Rule 60(b) motion, the trial court concluded that the motion was time-barred pursuant to 60(b)(3), and did not qualify for consideration pursuant to 60(b)(6). The court also ruled, as an apparent alternate basis for its dismissal of wife's motion, that she could not show any of the necessary elements to establish that husband engaged in fraud at the time the parties signed their final stipulation. Finally, the court denied the request for a hearing on the Rule 60(b) motion.

¶ 13. On appeal, wife challenges the trial court's refusal to hold a hearing on her Rule 60(b)(6) motion, and its refusal to allow her to seek additional discovery; she also argues that the trial court erred by not ruling that husband's concealment of assets was a fraud upon the trial court.

¶ 14. Although wife does not directly challenge the trial court's ultimate ruling on her Rule 60(b) motion, the starting point for our analysis is the motion itself. We have quite recently considered whether a party can invoke Rule 60(b)(6), which is not subject to a time limit, when the alleged ground for relief falls squarely within a different, time-limited subsection of Rule 60(b). In Pierce v. Vaughan, we acknowledged that Rule 60(b)(6) is to be liberally construed to prevent hardship or injustice, but held that it is not intended to be used as a substitute for one of the first five subsections of Rule 60(b). 2012 VT 5, ¶ 10, 191 Vt. ––––, 44 A.3d 758 (mem.). Accordingly, we reiterated our view that “[r]elief under V.R.C.P. 60(b)(6) is available only when a...