Putnam v. Putnam, 95-535

• Decision Date: 20 December 1996
• Docket Number: No. 95-535,95-535
• Citation: 166 Vt. 108,689 A.2d 446
• Parties: Catherine A. PUTNAM v. Jeffrey S. PUTNAM, Sr.
• Court: Vermont Supreme Court

Page 446

689 A.2d 446

166 Vt. 108

Catherine A. PUTNAM v. Jeffrey S. PUTNAM, Sr.

No. 95-535.

Supreme Court of Vermont.

Dec. 20, 1996.

Gwendolyn W. Harris of Kiewel & Harris, P.C., Brattleboro, for plaintiff-appellee.

David A. Gibson, Brattleboro, for defendant-appellant.

Before ALLEN, C.J., DOOLEY, MORSE and JOHNSON, JJ., and MANDEVILLE, District Judge (Ret.), Specially Assigned.

ALLEN, Chief Justice.

Defendant husband appeals from a final order of the Windham Family Court in a divorce action in which the court awarded legal rights and responsibilities for the parties' minor child to plaintiff wife. Husband claims that the court erred by (1) striking the final stipulation of the parties in which they agreed, with court approval, to joint legal responsibility for their child and payment of $7500 from husband to wife; (2) denying his motion for appointment of an attorney to represent the interests of the child; (3) awarding wife sole legal and physical responsibility for the child; and (4) awarding $12,000 to wife as her share of the equity in the marital home. We affirm.

Husband and wife married in 1987 and had a son in 1991. Since 1994 husband has been employed by the buildings department of a college. Prior to that date he worked for a plumbing service. Wife has been employed as a school bus driver since 1990. According to the trial court, the marriage was "characterized by a high degree of criticism and intolerance" with husband often degrading wife's performance as a wife and mother. Although husband was not regularly physically abusive toward wife, the court found that in spring of 1993, he "became violently angry over being refused sex ... [and] kicked her repeatedly until she was forced to leave their bed and bedroom." It also found that, "[i]n a manner which [wife] took as serious, [husband] has indicated that he has felt angry enough to kill her."

Prior to the bedroom incident the couple discussed divorce but decided to stay together for their son. Husband also made it clear that he would fight wife for custody if she insisted on a separation. After the incident, however, wife began to spend a substantial amount of time away from the marital home. On several occasions she stayed out late or did not return home, spending some time with a male companion. During these periods, husband cared for the child. Wife arranged to be home when husband was not present and while at home she cared for the child.

In 1992 husband's parents gave the parties the house in which they had been living since 1987. In fall of 1993 husband and wife negotiated a $40,000 mortgage on the home. The purpose of the financing was, in part, to provide wife with money to buy her own residence. Husband gave wife $1700 from the mortgage proceeds when the parties separated in October 1993.

When wife left, husband did not allow her to take the child, who was almost two years old. From October 1993 to the filing of the divorce action by wife in February 1994, the child resided primarily with husband. Prior to their separation, both parents had shared responsibility for their son, although wife was principally responsible for his day-to-day care and, as the trial court found, almost entirely responsible for his medical care.

On the same day that wife commenced this action for divorce, the court issued a final order of relief from abuse, finding that husband had physically abused wife during an altercation concerning parent-child contact. The court also decreed shared custody of the parties' son with exchanges of the child to be conducted through wife's adult daughter. Following several modifications and an uncontested hearing, the parties signed a final stipulation on September 12, 1994. The agreement called for joint legal responsibility and a continuation of the schedule set forth in previous temporary orders. The stipulation also required husband to pay wife $7500 for her interest in the marital residence.

The court approved the final stipulation on September 13 and directed counsel to prepare a written order. On September 26, wife, through her new attorney, moved to strike the stipulation, arguing that she had entered into the agreement under duress. Wife also moved for appointment of a guardian ad litem (GAL). The court appointed a GAL and issued an order of divorce reserving for further hearing the issues of parental rights and responsibilities and property distribution. The court set aside the final stipulation on March 2, 1995. It found that wife signed the stipulation while under duress and described the agreement as a fraud upon the court involving collusion between the parties. Husband then moved for appointment of an attorney to represent the child, which the court denied.

After a hearing on the merits, the court decreed sole legal and physical responsibility for the child to wife, subject to husband's right to parent-child contact. The court also valued the parties' equity in the residence at $35,000 and awarded wife $12,000 as her share.

On appeal, husband first contends that the court erred in striking the final stipulation of the parties because there is no evidence of duress, collusion, or fraud. He maintains that "[t]here may well have been pressure, as there is in every contested suit, to bring matters to a close," but such pressure is not sufficient to justify the setting aside of the stipulation. Wife argues that the evidence was sufficient to support the court's findings and its order striking the final stipulation. ¹

Although we agree with husband that "this Court should reinforce the policy that settlement agreements between parties are to be promoted and should be enforced," we also note that the policy favors "voluntary settlement of marital disputes." Bendekgey v. Bendekgey, 154 Vt. 193, 197, 576 A.2d 433, 435 (1990) (emphasis added). A court-approved, property distribution agreement can be set aside if there is a showing of "fraud, unconscionable advantage, impossibility of performance, hampering circumstances beyond the expectation of the parties, collusion, or duress." Burr v. Burr, 148 Vt. 207, 209, 531 A.2d 915, 917 (1987). Agreements concerning parental rights and responsibilities that have received court approval can be set aside if similar findings are made. See V.R.F.P. 4(a)(1) (Vermont Rules of Civil Procedure apply to divorce proceedings); V.R.C.P. 60(b) (court may relieve party from final order because of mistake, inadvertence, excusable neglect, newly discovered evidence, fraud, etc.). They may also be set aside if a "real, substantial and unanticipated change of circumstances" has occurred and modification is in the best interests of the child. 15 V.S.A. § 668. The court in the present case found that duress, collusion, and a fraud upon the court were all present when the parties signed the final stipulation. Because we hold that the evidence was sufficient to support the court's finding of duress and that the court did not abuse its discretion in setting aside the stipulation, we do not address the findings of collusion and fraud.

At the hearing on the motion to set aside the stipulated order, wife's former attorney testified that based on his observations of wife and his conversations with her, husband "was the boss and she had to do things the way and at the time that he requested that they be done or demanded that they be done." He further testified that wife "was always ... concerned about what [husband] would do or wouldn't do if she took a particular position." He observed that wife feared her husband and that fear never subsided during his representation of her. He also testified that she was "tired of fighting ... battles every time she wanted to see her son" and "she had reached the end of her rope." He acknowledged that in many divorce cases there comes a time when the parties are "emotionally spent" and need to put the divorce behind them, but that the extent and degree of wife's emotional exhaustion was more severe than in most cases.

Under the parties' temporary agreements wife and husband shared legal and physical responsibility for the child. This was implemented through a complicated schedule of visitation. Wife testified that the parties originally followed the arrangement but stopped doing so because it was not in the child's best interest. She explained that her son "was a mess. He was sick all the time. He was having spiked fevers. He ... just could not handle going back and forth. He could not handle the two separate schedules...." She testified that she tried seeing a counselor to find out what would be best for the child. She also tried talking to her husband about the situation, but these attempts were futile because "[h]e said there was no problem." Because "nothing worked," she "gave up" and "backed away" from the child. To provide her son with more stability, she told husband that she would see the child only occasionally.

At the hearing prior to the court's approval of the stipulation, wife testified that the parties were not following the temporary, joint custody agreement because it was not in the child's best interest. She also stated, however, that she agreed with the final stipulation and that the parties would follow it, even though it too required shared custody. When questioned at the hearing to determine whether the stipulation should be set aside, she testified that she did not express her disagreement with the stipulation because she was afraid of what would happen to her if she fought for sole custody. She feared that if she made husband angry, he would cause her bodily harm or use the child to punish her, as he had in the past. Because she was too afraid to express her real opinion, she was hoping the court would realize that there was something wrong as the parents were signing an agreement that they had not been following. She testified that she "felt [she] had no other choices. Everything was just falling apart. Nobody was...