Mayo v. Mayo , 173 Vt. 459 ( 2001 )

Morse, J.,

dissenting. I dissent The court’s opinion signals procedural trouble for divorced parties who are not receiving their due under a judgment. The majority opinion severely limits the options for addressing a request to be assured maintenance — a request, by the way, the Court finds not unreasonable, yet makes all but impossible to attain, given the amount in controversy.

The facts acknowledged by the Court, but not given the weight the standard of review demands, are that defendant-husband paid plaintiff-wife maintenance “intentionally late” and stipulated to maintenance payments he could not make as the result of bad faith. In determining that husband entered into the agreement in bad faith, the court determined his excuses for agreeing to maintenance payments he was financially incapable of meeting unsatisfactory. The court consequently ordered the property division modified and eliminated maintenance to remedy the husband’s bad faith and keep the parties from future litigation over his recalcitrance in paying maintenance.

I do not agree that the court’s findings are clearly erroneous. Husband had promised to pay maintenance in return for a share in the equity in the marital house, knowing he would be able to pay only a portion of it. He admitted as much. The court’s finding that he acted in bad faith is supported by the evidence. Contempt is the proper remedy.

Further, I do not agree with the Court’s approach, which makes modification of the property distribution off-limits as a remedy under the contempt power. While I acknowledge that this Court has previously held that modification of a property settlement is not available as a sanction for contempt, Viskup v. Viskup, 149 Vt. 89, 91, 539 A.2d 554, 556 (1987), I believe that case was wrongly decided. While a property decree should generally be considered final, in eases of ongoing noncomplianee with a divorce order, it makes far more sense to modify the parties’ legal relationship to ensure that the party wronged is made whole than to imprison the debtor until maintenance is paid and repeat the process over again and again when husband’s recalcitrance returns.

Under the family court’s broad equitable powers to remedy husband’s bad faith in deceiving his wife (and the court) when entering into the divorce settlement, it may order relief short of imprisonment or other coercive measures. See In re C.W., 169 Vt. 512, 517, 739 A.2d 1236, 1240 (1999) (“The power, in particular, to punish disobedience to judicial orders is regarded as essential to ensuring that the Judiciary has a means to vindicate its own authority.”) (internal citation and punctuation omitted). That should include the power to redistribute the property within the parties’ control to remedy the contempt, not only for the short term, but also to prevent its recurrence in the long term.

I would affirm.