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Richard v. Richard

Supreme Court of Vermont

June 6, 2014

Ellen Richard
v.
Gilles Richard

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Superior Court, Caledonia Unit, Family Division. Robert P. Gerety, Jr., J.

Jared H. Cloutier of Law Office of William P. Neylon, St. Johnsbury, for Plaintiff-Appellee.

Kyle C. Sipples of Zuccaro, Willis & Sipples, P.C., St. Johnsbury, for Defendant-Appellant.

Present: Reiber, C.J., Dooley, Skoglund, Robinson and Crawford, JJ.

OPINION

Robinson, J.

[¶1]  Husband Gilles Richard appeals from a family court order awarding wife Ellen Richard interest on a payment due under the final divorce decree. Husband argues that the award of interest is an impermissible modification of the final decree. We affirm.

[¶2] The parties were married for twenty-six years and divorced pursuant to a final divorce decree issued in December 2012. The unappealed judgment became final by operation of law on January 30, 2013. The final decree ordered husband to pay wife the sum of $11,500 pursuant to the following terms:

[Husband] shall pay [wife] the sum of $11,500 cash on or before February 28,

Page 194

2013. If necessary, [husband] shall take all steps necessary to borrow the necessary funds to make timely full payment in cash to [wife] or he shall timely take all steps necessary to take an early withdrawal from his retirement account or convey an interest in his retirement account equal to $11,500.00 valued as of the day of transfer to [wife] at his sole option. In the event [husband] chooses to utilize his retirement funds to acquire the cash necessary to make the required payment to [wife], the amount of the payment may be reduced by one half of any tax penalty assessed against [husband] for early withdrawal. In all other respects the full amount of the costs and charges incurred by [wife] in connection with efforts to obtain the needed funds including attorney fees, interest charges, charges for preparation of [QDRO] if needed, loan application fees, etc., shall be born[e] solely by [husband].

On February 25, 2013, husband began the process of preparing a qualified domestic relations order (QDRO) to transfer a portion of his retirement account to satisfy the final decree's requirement. That process was not complete by February 28.

[¶3] On March 1, 2013, four days after husband was supposed to transfer the payment in cash or by QDRO, wife filed a motion for contempt and to enforce the final decree. Husband opposed wife's motion, arguing that he timely initiated the transfer process by QDRO and that the final decree required him only to start the process, not actually transfer the funds by February 28. The decree cannot be interpreted, husband argued, to impose a February 28 deadline on transfer by QDRO because it ...


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