Samis v. Samis, No. 10–031.

Docket NºNo. 10–031.
Citation22 A.3d 444, 2011 VT 21
Case DateFebruary 18, 2011
CourtUnited States State Supreme Court of Vermont

22 A.3d 444
2011 VT 21

Catherine S. SAMIS
v.
Philip SAMIS.

No. 10–031.

Supreme Court of Vermont.

Motion for Reargument Denied March 21, 2011.Feb. 18, 2011.


[22 A.3d 445]

Benjamin W. King of The King Law Offices, PLLC, Burlington, for Plaintiff–Appellee.William W. Cobb of Law Offices of William W. Cobb, PLC, Hyde Park, for Defendant–Appellant.Present: REIBER, C.J., JOHNSON, SKOGLUND and BURGESS, JJ., and EATON, Supr. J., Specially Assigned.JOHNSON, J.

¶ 1. Husband appeals the decisions of the Orleans Family Court granting divorce, distributing property, and awarding spousal maintenance after wife's guardian filed for divorce on her behalf. Husband raises three arguments on appeal: (1) the trial court erred in denying his motion to dismiss wife's divorce action because her guardian lacks standing to initiate a divorce proceeding on her behalf; (2) the trial court erroneously allowed wife's guardian to bring and maintain a divorce action on her behalf; and (3) the trial court abused its discretion by awarding wife excessive spousal maintenance and one of their homes. We agree with husband that the lower court erred in its denial of his motion to dismiss. Accordingly, we reverse.

¶ 2. Husband and wife married in 1983 in Montreal. Husband is a Canadian citizen currently living in Toronto. Wife is a U.S. citizen and resident of Vermont. This is a second marriage for both. During the majority of their marriage, they maintained separate residences—wife in Vermont and husband in Montreal—but lived together. Husband and wife divided their time between the United States and Canada to preserve their respective residency and benefit statuses in each country. Both husband and wife are now over eighty years old. Each depends on the medical care and payment system of his or her country of citizenship.

¶ 3. Wife was diagnosed with dementia in early 2007. Wife's dementia renders her unable to make decisions in her own interest. She is unable to form new memories and does not remember current happenings after five or six minutes. Husband reacted strongly to her diagnosis, announcing that he needed to leave wife to move to Toronto and removing many things from their shared and jointly owned home in Irasburg, Vermont. At that time, wife's son from her first marriage, Gregory Morcroft, applied for guardianship of wife.

¶ 4. Following some litigation, wife's guardianship was made permanent in June 2007 by stipulation of Gregory and husband. The probate court issued a decision approving this stipulation and appointing Gregory guardian for wife with all the

[22 A.3d 446]

powers of guardianship. The stipulation provided that guardian and husband would cooperate in financial and Medicaid planning for wife, anticipating that wife's financial resources might be insufficient to provide for her care.

¶ 5. Guardian first filed a complaint for divorce on behalf of wife in August 2007. Relations between guardian and husband, already tense, worsened. Guardian filed a motion for injunctive relief, which the probate court granted, restricting husband's contact with wife. Husband filed a motion to set aside the stipulation and decision appointing guardian and a motion for modification of the guardianship. The probate court denied both. Husband and guardian's relationship deteriorated to the point that they were unable to make joint decisions regarding wife. Most relevantly, guardian had difficulty obtaining from husband the financial support necessary for wife's care. Guardian sought a divorce for wife to permit her to apply for Social Security benefits on the account of her first husband, which she was barred from doing while married to husband.

¶ 6. In September 2007, husband filed a motion to dismiss the divorce complaint, arguing that wife's guardian did not have authority under the guardianship statute, 14 V.S.A. § 3069, to initiate a divorce proceeding on her behalf. Responding to wife's financial needs for medical care, the family court denied the motion to dismiss and allowed the divorce action to proceed. The court concluded that, despite the absence of authorization in § 3069, Vermont Rule for Family Proceedings 4(b)(1)(A) allows guardians to file for divorce on behalf of persons under guardianship. Moreover, the court determined that public policy required that guardian be authorized to bring the divorce action on wife's behalf. We denied husband's request to take an interlocutory appeal on this matter.

¶ 7. Having decided that the divorce complaint could stand, the family court then bifurcated the contested divorce proceedings, first making a determination concerning the marriage and subsequently determining the property and spousal maintenance issues. Following evidentiary hearings on the matter of the divorce, the court granted the no-fault divorce petition under 15 V.S.A. § 551(7), finding that the guardian, on behalf of wife, established that she and husband had “lived separate and apart for a period of six consecutive months, the resumption of marital relations not being reasonably probable.” The court explained that a no-fault divorce did not require that both parties desire divorce, and reiterated that, per its decision on the motion to dismiss, wife had a guardian capable of bringing this divorce action and of representing her in this matter.

¶ 8. After additional hearings, the court issued its decision regarding property distribution, spousal maintenance, and attorney's fees. The court awarded the entire interest in the Irasburg home to wife. Although husband and wife jointly acquired and owned this asset, the court emphasized that the property was maintained as wife's home. Because the court “[did] not believe that [husband would] be cooperative toward timely payment of his spousal maintenance obligation” based on husband's past behavior, it awarded wife a lump-sum award of spousal maintenance in the amount of $250,000, attorney's fees of $20,000, and $20,000 for past-due maintenance under the court's interim order. This appeal followed.

¶ 9. Husband contends that, because guardian lacks authority under the statute delineating the powers of a guardian, 14 V.S.A. § 3069, to initiate a divorce proceeding on behalf of a person under guardianship, the trial court erred in denying his motion to dismiss the divorce petition.

[22 A.3d 447]

1 The purpose of a motion to dismiss for failure to state a claim upon which relief can be granted is to test the law of the claim, not the facts that support it. Powers v. Office of Child Support, 173 Vt. 390, 395, 795 A.2d 1259, 1263 (2002); see V.R.C.P. 12(b)(6). A motion to dismiss should be granted only when it is beyond doubt that there exist no facts or circumstances that would entitle the nonmoving party to relief. Powers, 173 Vt. at 395, 795 A.2d...

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7 practice notes
  • Luster v. Luster, No. 31907.
    • United States
    • Appellate Court of Connecticut
    • April 26, 2011
    ...319, 78 P.3d 63 (2003), rehearing denied, October 23, 2003; Murray v. Murray, 310 S.C. 336, 342, 426 S.E.2d 781 (1993); Samis v. Samis, 2011 VT 21, ––– Vt. ––––, ––– A.3d –––– (2011). For a general overview of this topic, see also D. Mills, “But I Love What's–His–Name: Inherent Dangers in t......
  • Zullo v. State, No. 2017-284
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 4, 2019
    ...concerning the exit order and seizure of plaintiff's car were sufficient to overcome the State's motion to dismiss. See Samis v. Samis, 2011 VT 21, ¶ 9, 189 Vt. 434, 22 A.3d 444 ("A motion to dismiss should be granted only when it is beyond doubt that there exist no facts or circumstances t......
  • Zullo v. State, No. 2017-284
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 4, 2019
    ...concerning the exit order and seizure of plaintiff's car were sufficient to overcome the State's motion to dismiss. See Samis v. Samis, 2011 VT 21, ¶ 9, 189 Vt. 434, 22 A.3d 444 ("A motion to dismiss should be granted only when it is beyond doubt that there exist no facts or circumstances t......
  • Zullo v. State, No. 17-284
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 4, 2019
    ...concerning the exit order and seizure of plaintiff's car were sufficient to overcome the State's motion to dismiss. See Samis v. Samis, 2011 VT 21, ¶ 9, 189 Vt. 434, 22 A.3d 444 ("A motion to dismiss should be granted only when it is beyond doubt that there exist no facts or circumstances t......
  • Request a trial to view additional results
7 cases
  • Luster v. Luster, No. 31907.
    • United States
    • Appellate Court of Connecticut
    • April 26, 2011
    ...319, 78 P.3d 63 (2003), rehearing denied, October 23, 2003; Murray v. Murray, 310 S.C. 336, 342, 426 S.E.2d 781 (1993); Samis v. Samis, 2011 VT 21, ––– Vt. ––––, ––– A.3d –––– (2011). For a general overview of this topic, see also D. Mills, “But I Love What's–His–Name: Inherent Dangers in t......
  • Zullo v. State, No. 2017-284
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 4, 2019
    ...concerning the exit order and seizure of plaintiff's car were sufficient to overcome the State's motion to dismiss. See Samis v. Samis, 2011 VT 21, ¶ 9, 189 Vt. 434, 22 A.3d 444 ("A motion to dismiss should be granted only when it is beyond doubt that there exist no facts or circumstances t......
  • Zullo v. State, No. 2017-284
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 4, 2019
    ...concerning the exit order and seizure of plaintiff's car were sufficient to overcome the State's motion to dismiss. See Samis v. Samis, 2011 VT 21, ¶ 9, 189 Vt. 434, 22 A.3d 444 ("A motion to dismiss should be granted only when it is beyond doubt that there exist no facts or circumstances t......
  • Zullo v. State, No. 17-284
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 4, 2019
    ...concerning the exit order and seizure of plaintiff's car were sufficient to overcome the State's motion to dismiss. See Samis v. Samis, 2011 VT 21, ¶ 9, 189 Vt. 434, 22 A.3d 444 ("A motion to dismiss should be granted only when it is beyond doubt that there exist no facts or circumstances t......
  • Request a trial to view additional results

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