Theberge v. Theberge, 2019-169

Docket NºNo. 2019-169
Citation2020 VT 13
Case DateFebruary 21, 2020
CourtUnited States State Supreme Court of Vermont

2020 VT 13

Gerald R. Theberge
Mary Ann R. Theberge

No. 2019-169

Supreme Court of Vermont

October Term, 2019
February 21, 2020

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: 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, Windham Unit, Family Division

Robert P. Gerety, Jr., J.

Sharon J. Gentry of Costello, Valente & Gentry, P.C., Brattleboro, for Plaintiff-Appellee.

Sharon L. Annis of Buehler & Annis, PLC, Brattleboro, for Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Burgess, J. (Ret.)1 and Morris, Supr. J. (Ret.), Specially Assigned

¶ 1. EATON, J. This appeal stems from the denial of defendant's post-judgment motion to enforce the cost-of-living adjustment (COLA) to a spousal-maintenance award made in her favor in the parties' divorce action. The trial court found that the parties agreed to a modification of the maintenance award eliminating the yearly COLA and that, consequently, plaintiff's maintenance payments—which continued after the alleged agreement, absent the COLA—were not in arrears. Accordingly, the court denied the enforcement motion. For the reasons stated herein, we reverse and remand to the family division for corrected findings and conclusions, and additional findings if necessary.

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¶ 2. The relevant trial court findings are as follows. The parties were divorced in 2000. Under the final divorce order, plaintiff was obligated to make monthly spousal-maintenance payments to defendant. This amount included a component intended to compensate defendant for her contributions to the marriage, "albeit untied to any specific percentage of the monthly obligation." The maintenance award also contained an annual COLA based on the cost-of-living index for the northeastern United States, whereby the maintenance award was to be increased annually by an amount equal to the previous year's payment multiplied by the increase in the cost-of-living index.

¶ 3. At the time of their 2000 divorce, the parties had two minor children. No provision for payment of the children's college expenses was made in the divorce order. However, the parties do not dispute that, at some point after the divorce became final, they agreed that plaintiff would contribute 75% and defendant 25% of the children's college expenses. This agreement was never reduced to writing, but when the parties' eldest child entered college, they paid for his expenses in accordance with its terms.

¶ 4. At some point, plaintiff neglected for two or three years to increase his spousal-maintenance payment by the yearly COLA. Defendant did not object to this until after their youngest child entered college and tuition payments became due. The trial court found that defendant then sent a note to plaintiff requesting that plaintiff address the failure to apply COLA adjustments to the maintenance payments and further indicating she did not want to continue paying 25% of the college tuition as they had previously agreed. Plaintiff responded to defendant's communication by bringing his maintenance payments current, including payment of the past-due COLAs, and informing defendant of the amount she owed for the tuition payment. Shortly thereafter, the court found, the parties "reached a verbal compromise agreement that defendant was relieved of her obligation to pay a share of the college expenses and plaintiff was relieved of the obligation to include cost of living increases as required under the final divorce order." This

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agreement was also not reduced to writing, and neither party filed a motion to amend the maintenance provision of the divorce order to conform thereto. After the second agreement on tuition was reached, the parties performed in accordance with it. Defendant did not contribute to their youngest child's ongoing education expenses and accepted spousal support payments for approximately ten years with no COLAs—until bringing the enforcement action seeking the allegedly outstanding COLA payments along with attorney's fees and expenses.2

¶ 5. In denying defendant's motion to enforce, the trial court concluded that the parties' arrangement regarding sharing the children's tuition payments and their subsequent agreement to waive defendant's tuition obligation in exchange for waiving plaintiff's COLA obligation were each enforceable oral contracts.3 It further determined that adequate consideration existed to support the agreements and that a valid verbal agreement was formed through which defendant could have waived her right to collect the retroactive COLA adjustments. It held that defendant "waived by performance" her right to collect those adjustments by agreeing to forgo such payments in exchange for release from her obligations under the oral tuition agreement, and then performing the modification agreement by accepting spousal maintenance payments without the COLA adjustments for ten years. The trial court did not resolve defendant's contention that, because some portion of the maintenance award was compensatory in nature, any agreement to waive the COLA attributable that portion was unenforceable as a matter of public policy.

¶ 6. Defendant raises numerous claimed errors on appeal. She asserts that the court erred in its findings concerning the existence of both oral agreements and in concluding that she waived receipt of her full spousal maintenance award. She further argues that if the trial court's

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conclusion that the parties entered into a modified oral agreement is affirmed, that agreement is either unconscionable or void for public policy reasons and therefore nonetheless unenforceable. Plaintiff maintains that the court did not err in finding the existence of an oral agreement to forgo the COLAs, but contends that, even if there was no second oral agreement, various equitable theories preclude defendant's enforcement of the COLA provision in the agreement.

¶ 7. We review the trial court's conclusions of law de novo, see Gosbee v. Gosbee, 2015 VT 82, ¶ 18, 199 Vt. 480, 125 A.3d 514, and its factual findings in the light most favorable to the prevailing party below, setting them aside only if they are clearly erroneous, see Our Lady of Ephesus House of Prayer, Inc. v. Town of Jamaica, 2005 VT 16, ¶ 10, 178 Vt. 35, 869 A.2d 145. The existence of a contract or contracts between the parties is a question of fact subject to the latter standard of review. See Sweet v. St. Pierre, 2018 VT 122, ¶ 11, ___ Vt. ___, 201 A.3d 978. However, "[t]he existence of sufficient consideration for a contract is a question of law." Bergeron v. Boyle, 2003 VT 89, ¶ 19, 176 Vt. 78, 838 A.2d 918.

¶ 8. It is important to recognize at the outset what this case does not concern. This case is not about a modification of the maintenance provision of the divorce order. Neither party sought a modification of the spousal maintenance order through court process, which would have required a showing of real, substantial, and unanticipated change of circumstances as a threshold matter. Taylor v. Taylor, 175 Vt. 32, 36, 819 A.2d 684, 688 (2002) ("Before the court can modify a maintenance order, it must find that there has been a real, substantial and unanticipated change of circumstances; if the required change has not occurred the court has no jurisdiction to modify the order."). Rather—as the trial court properly observed—this case concerns whether the parties entered into one or more contracts apart from the final divorce order, one of which involved defendant's purported waiver of a COLA awarded to her under the divorce order. See Zink v. Zink, 2016 VT 46, ¶ 22, 202 Vt. 10, 147 A.3d 75 (recognizing that parties may enter into

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agreements that affect maintenance provisions of divorce order). With this understanding, we turn to the merits of the parties' arguments.

I. The Tuition Agreement

¶ 9. Defendant does not contest the trial court's finding that the parties at one point agreed to share the college tuition expenses of their children, with plaintiff paying 75% and defendant 25% of the total amount. However, she argues that this agreement did not constitute a contract between the parties, because neither was under any legal obligation to pay their children's tuition and therefore any agreement between them benefitted only third parties—their children—and lacked consideration. As a result, she contends that the trial court's conclusion that a binding contract existed concerning the payment of tuition expenses was erroneous. Although neither party seeks enforcement of the initial tuition agreement, its enforceability matters because defendant claims that there was no tuition agreement to be modified by the second agreement regarding waiver of the COLA, arguing that, in the absence of an enforceable underlying contract, no modification of the same could exist. Indeed, the trial court found that the benefit defendant received in the second alleged contract was plaintiff's agreement to waive his right to enforce the provision of their first agreement requiring defendant to pay 25% of their children's college tuition bills.4 We conclude that, if the tuition-sharing agreement was indeed unenforceable, then defendant is correct in asserting that plaintiff's waiver of his right to enforce the same was not consideration.

¶ 10. This is so because consideration exists only where a promisee "giv[es] up something which the promisee was theretofore privileged to retain, or doing or refraining from

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doing something which the promisee was then privileged not to do, or not to refrain from doing." 3 R. Lord, Williston on Contracts § 7:4 (4th ed. 2019). A promise to refrain from doing...

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