Peggy List v. Paul List ( 2015 )

ENTRY ORDER
SUPREME COURT DOCKET NO. 2014-214
JANUARY TERM, 2015
Peggy List } APPEALED FROM:
}
} Superior Court, Chittenden Unit,
v. } Family Division
}
Paul List } DOCKET NO. 981-12-12 Cndm
Trial Judge: Linda Levitt
In the above-entitled cause, the Clerk will enter:
In this enforcement action husband appeals from an order of the family division requiring
him to comply with the terms of the property division in the parties’ divorce judgment and to pay
wife’s attorney’s fees of $5,062.37. We affirm in part and reverse in part.
The material facts are undisputed. The parties were divorced in January 2014 after a
twenty-four year marriage. The divorce judgment awarded husband the parties’ businesses,
business condominium, and marital home, and ordered husband to pay wife $365,580 for her
one-half interest in the businesses and properties. Of this amount, the order required that
husband pay $50,000 within sixty days of the date of the order, and the remainder in 120
consecutive monthly installments starting March 1, 2014. The judgment also awarded
maintenance to wife of $2,500 per month for two years, and $1,500 per month thereafter until
wife reaches the age of sixty-six.
In April 2014, wife filed motions to enforce the judgment and for contempt. Husband
requested a hearing in response. The court held a hearing in June 2014. Wife’s attorney asserted
that husband had failed to make the $50,000 payment as well as four of the subsequent monthly
installments, as required by the judgment. Wife’s attorney maintained further that husband’s
business account currently contained $30,000, and that the business had taken in revenue of over
$100,000 since January 2014. Wife’s counsel requested an order requiring husband to pay
$25,000 immediately, as well as attorney’s fees and costs incurred in the enforcement action.
Husband’s attorney did not contest the amounts owed. He acknowledged that it was
husband’s “intention . . . to make the payments,” but claimed that husband needed “extra time”
to do so because husband’s business had “suffered a significant financial hit.”
Based on the foregoing, the trial court found that husband was “clearly not in
compliance” with the divorce judgment, and directed wife’s attorney “to prepare an order for my
signature to enforce the final order.” Husband’s attorney, in response, requested an opportunity
to present evidence on husband’s ability to pay, asserting that while he was current on his
spousal maintenance obligation he lacked sufficient income from the business to make the
additional payments. The trial court denied the request, observing that the divorce judgment had
not been appealed and was final, that husband was out of compliance with the judgment, and that
wife was entitled to enforce it.
Thereafter, based on the order submitted by wife, the trial court issued a written ruling
ordering husband to pay wife $25,000 within five days of the order, to fully comply with the
balance of the terms of the divorce judgment within thirty days of the order, and to pay wife’s
attorney’s fees in the amount of $5,062.37. The judgment stated that failure to comply with its
terms would result in the scheduling of a contempt hearing. This appeal followed.
Husband contends the trial court erred in ordering him to comply with the terms of the
divorce judgment, including the payment of $25,000, without taking evidence on his claim that
reverses to his business had impaired his ability to pay. We find no error. The court was not
holding a contempt hearing, where it is essential to find that the obligor “has the present ability
to comply with the court’s [underlying] directive.” Sheehan v. Ryea, 171 Vt. 511, 512 (2000)
(mem.) (alteration in original) (quotation omitted). Nor was the court considering a Vermont
Rule of Civil Procedure 60(b) motion to modify the payment schedule set forth in the divorce
judgment, even to the limited extent that such provisions may be modified. Absent these
circumstances, the court did not err in granting the motion to enforce based on father’s admission
that he was not in compliance with the judgment.
Husband additionally contends that the trial court erred in awarding attorney’s fees to
wife. The hearing record discloses that wife requested an award of attorney’s fees incurred in
the enforcement action, and that the trial court summarily granted the request with no
consideration of the parties’ current financial circumstances or the reasonableness of the fees.
Indeed, it appears that the award was based simply on the amount specified in the order
submitted by wife’s attorney at the court’s direction. This was error. See Willey v. Willey, 2006
VT 106, ¶ 25, 180 Vt. 421 (noting that, in awarding attorney’s fees, “consideration should be
given to the parties’ ability to pay”); Bruntaeger v. Zeller, 147 Vt. 247, 254 (1986) (party seeking
attorney’s fees has burden to provide evidence of their reasonableness).
To be sure, we have held that—in the immediate context of a divorce proceeding—the
court is not required to conduct a separate hearing and take additional evidence on the financial
positions of the parties “because those positions have typically been subject to extensive judicial
scrutiny during the hearing on the merits.” Willey, 2006 VT 106, ¶ 25. Here, however, the
enforcement hearing occurred five months after the divorce, and, as noted, husband claimed a
significant change in his financial circumstances. Accordingly, we conclude that the trial court
erred in automatically awarding attorney’s fees without any consideration of the parties’ ability
to pay or the reasonableness of the fees, and remand for reconsideration of the issue.
Reversed and remanded on reasonableness of attorney’s fees for the enforcement motion
and ability to pay them. Affirmed in all other respects.
BY THE COURT:
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John A. Dooley, Associate Justice
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Beth Robinson, Associate Justice
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Harold E. Eaton, Jr., Associate Justice