Caroline Maier v. Siegfried Maier , 2020 VT 63 ( 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: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
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before this opinion goes to press.
2020 VT 63No. 2019-405
Caroline Maier Supreme Court
On Appeal from
v. Superior Court, Bennington Unit,
Family Division
Siegfried Maier June Term, 2020
David A. Barra, J.
Nancy Corsones and Wendy Fitzsimons of Tepper Dardeck & Levins, LLP, Rutland, for
Plaintiff-Appellant.
Barney L. Brannen and C. Justin Sheng of Brannen & Loftus, PLLC, Hanover, New Hampshire,
for Defendant-Appellee.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. REIBER, C.J. We granted an interlocutory appeal to address the following
questions: (1) “whether a competent plaintiff may dismiss her divorce action against her
incompetent spouse, when the competent spouse wishes to preserve her marriage to her
incompetent husband,” and (2) “whether a guardian can pursue a counterclaim for divorce once
the divorce action has been initiated by the ward’s spouse.” Husband subsequently died, abating
the divorce action. The questions raised for review are therefore moot. Accordingly, we dismiss
the appeal.
¶ 2. In July 2018, wife brought a divorce complaint against her husband, who was under
guardianship. In July 2019, a stipulated settlement agreement was submitted to the family court.
Before the court acted in response, wife filed a motion to withdraw the complaint and set aside the
settlement agreement. She also filed a motion for summary judgment. Wife filed these motions
directly, not through counsel. Her counsel moved to withdraw representation. The court granted
the attorney’s motion to withdraw and set oral argument on wife’s motions. Wife obtained new
counsel, who filed additional memoranda. The family court held oral argument on September 9,
2019, resulting in an October 17 decision denying wife’s motion to dismiss and ordering an
evidentiary hearing to evaluate the fairness of the stipulation pursuant to Pouech v. Pouech, 2006
VT 40, 180 Vt. 1, 904 A.2d 70. Wife filed a motion to reconsider and a request for interlocutory
appeal, both of which the court denied. Wife filed a request with this Court for interlocutory appeal
of the October 17 order, which we accepted in January 2020. Husband, through his counsel and
guardians, asked to add a supplemental question to the appeal, which we also accepted. The family
court stayed the proceedings below pending the interlocutory appeal.
¶ 3. While the interlocutory appeal was pending, and prior to oral argument, husband
died. No divorce can be granted here. As the parties acknowledge, the divorce action is abated
due to husband’s death. Aither v. Estate of Aither, 2006 VT 111, ¶ 5, 180 Vt. 472, 913 A.2d 376(“We have held, as have many other states, that a party’s death while a divorce is pending abates
the divorce action because the marriage is dissolved by operation of law at the time of death.”).
Therefore, the issues raised for interlocutory appeal—whether a divorce may be granted under the
circumstances that existed prior to husband’s death—are now moot. See In re Moriarty, 156 Vt.
160, 163, 588 A.2d 1063, 1064 (1991) (explaining that “a case becomes moot when the issues
presented are no longer live or the parties lack a legally cognizable interest in the outcome” or “if
the reviewing court can no longer grant effective relief,” and “[e]ven though there was once an
actual controversy, a change in the facts can render an issue or entire case moot” (quotation and
quotation marks omitted)). Accordingly, dismissal is appropriate.
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¶ 4. We reject the Estate’s contention that we should retain the appeal because there are
surviving issues in the proceedings regarding the enforceability of the settlement agreement and
the proper forum for continued litigation. For the obvious reason that husband died after we
granted interlocutory review, the family court and the parties have had no prior opportunity to
consider whether the settlement agreement is enforceable in light of husband’s death and what
court would be appropriate to litigate that issue. Those issues are not ripe for review, and we will
not consider them. See White Current Corp. v. Vt. Elec. Coop., 158 Vt. 216, 222, 609 A.2d 222,
225 (1992) (“We decline . . . to entertain an issue neither presented by properly certified questions
nor otherwise raised by the proceedings below or the order appealed from.”); State v. Dreibelbis,
147 Vt. 98, 99-100, 511 A.2d 307, 308 (1986) (holding that Court may reach issues outside scope
of interlocutory appeal “where they are fairly raised by the order appealed” (emphasis added)
(quotation omitted)); In re Pyramid Co. of Burlington, 141 Vt. 294, 300-02, 449 A.2d 915, 918-19
(1982) (declining to address interlocutory appeal when issues are not ripe for review).
¶ 5. Upon dismissal, the matter will return to the family division because that is the
court from which the appeal was taken. See, e.g., State v. Haynes, 2019 VT 44, ¶ 36, __ Vt. __,
215 A.3d 1094 (dismissing interlocutory appeal from criminal division and indicating matter
would return to criminal division for final decision); Pyramid Co., 141 Vt. at 300, 304-05, 308,
449 A.2d at 918, 920-22 (dismissing interlocutory appeal and indicating matter would return to
civil division for further proceedings). The parties can then litigate what issues remain, including,
if necessary, determining the appropriate forum for litigation, a question that we do not reach here.
Dismissed.
FOR THE COURT:
Chief Justice
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