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Joseph v. Joseph

Supreme Court of Vermont

July 18, 2014

Andrea Joseph
Neil Joseph

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, Windham Unit, Family Division. John P. Wesley, J.

Melvin D. Fink, Ludlow, for Plaintiff-Appellant.

Matthew T. Birmingham of Birmingham & Moore, P.C., Ludlow, for Defendant-Appellee.

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


Robinson, J.

[¶1] This case calls upon us to determine the effect of an arrearage accrued under a temporary order following a final divorce decree when the arrearage was not incorporated into the final order or otherwise reduced to judgment. Wife Andrea Joseph appeals the family court's denial of her motion to enforce husband Neil Joseph's obligations under a temporary divorce order after a final divorce decree issued. We affirm.

[¶2] In December 2011, wife filed for divorce after twenty-three years of marriage to husband. In October 2012, the parties entered into a stipulation agreeing to equally divide certain joint Morgan Stanley accounts. They also agreed in the stipulation that husband would continue to pay, out of the portion of the joint accounts designated to him, " those obligations that were being paid prior to the divorce action, which would include but not be limited to: mortgages, taxes, insurance and utilities for the properties that are owned by either one or both of the parties." The trial court approved the stipulation and entered it as a court order.

[¶3] The trial court held a two-day contested divorce hearing in March 2013. Wife concedes that in the context of the final divorce hearing, she did not raise any questions about whether husband fulfilled his obligations under the October 2012 stipulation, and the question was not in any way addressed at the final divorce hearing. The court issued a final divorce decree on April 9, 2013 that distributed the marital estate nearly equally between wife and husband. Neither party appealed the final divorce decree nor sought any relief from the judgment.

[¶4] On May 10, 2013, wife filed a motion for enforcement and contempt with respect to the October 2012 stipulated order, alleging that husband had failed to make some of the required payments during the pendency of the divorce and up to the entry of the final divorce decree. Wife alleged that she made a number of payments during the period between the trial court's acceptance of the stipulation and the issuance of the final decree for which she was not reimbursed, including mortgage, utility, and insurance payments. She also claimed that some obligations under the stipulation remained unpaid altogether, including insurance, utility payments, and property taxes on the marital property. Wife requested that the trial court take an accounting of husband's unpaid obligations, order payment, and find husband in contempt of the temporary order.

[¶5] The trial court denied wife's motion, concluding that it lacked subject matter jurisdiction to enforce a temporary order after the final divorce decree became final. The trial court, citing this Court's decisions in Chaker v. Chaker, 155 Vt. 20, 581 A.2d 737 (1990) and Camara v. Camara, 2010 VT 53, 188 Vt. 566, 998 A.2d 1058, reasoned that once the final divorce decree issued, the temporary order " merged into it and was extinguished." Wife appealed to this Court.

[¶6] Neither party disputes that prospective obligations under the stipulation are superseded by the final order. The issue on appeal is whether arrearages accrued under a temporary order, which were not reduced to a separate judgment and were not raised or addressed at the final divorce hearing, are enforceable after the final hearing. Because this is a question of law, our review is nondeferential and plenary. Our Lady of Ephesus House of Prayer, Inc. v. Town of Jamaica, 2005 VT 16, ¶ 10, 178 Vt. 35, 869 A.2d 145.

[¶7] Wife acknowledges that a final divorce decree may extinguish prospective obligations based on a temporary order, but argues that the final order cannot extinguish obligations already accrued while the temporary order was in effect. She further argues that obligations accruing through the temporary period cannot be fully litigated at the final hearing because arrearages may accrue while the temporary order continues to be in force between the final hearing and the court's issuance of the final divorce decree. Husband responds that he relied on the final hearing to ...

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