Supreme Court On Appeal from Superior Court, Rutland Unit, Family Division December Term, 2013 Nancy Corsones, J.
Peter F. Langrock of Langrock Sperry & Wool, LLP, Middlebury, for Plaintiff-Appellee.
Pamela Gatos of Tepper Dardeck Levins & Gatos, LLP, Rutland, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund and Crawford, JJ., and Morris, Supr. J. (Ret.), Specially Assigned
¶ 1. James and Leslie Tschaikowsky were married in 1999, and are now in the process of divorcing. In between, the parties legally separated, agreeing on terms of separation that were formally incorporated into a final order issued by the family court on October 12, 2007. This appeal follows husband James’s request that the family court enforce the terms of the separation agreement in the divorce proceedings through summary judgment, which the court denied. We agree with husband that the agreement is binding and enforceable as a matter of law, and reverse the family court’s denial of summary judgment.
¶ 2. Having lived separately for the requisite six-month period, the parties filed for separation in the fall of 2007. Both represented by counsel, the parties waived their rights to a hearing and requested that the family court incorporate the agreement into a final order of separation pursuant to Vermont Rule of Family Proceedings 4(e), and the court complied. The agreement addressed the terms of their separation, including parental rights and responsibilities, support, and education for their two minor children, as well as “the final settlement of their property rights.” Containing clauses for both real and personal property, the agreement divided the property owned by the parties at the time. The agreement also included a provision entitled “Subsequent Divorce, ” which stated that:
In the event any such [divorce] action is instituted, the parties shall be bound by all the terms of this agreement. If consistent with the rule or practice of the court granting a decree of absolute divorce, the provisions of this agreement, or the substance thereof, shall be incorporated in such decree....
¶ 3. Following the court’s issuance of a final separation order incorporating the terms of the agreement, husband moved to England where he resided until April 2010, when he returned to the United States. In June 2010, wife filed for divorce. A copy of the separation agreement accompanied wife’s divorce complaint, which stated that “[s]aid Separation Agreement resulted in a Final Order and Decree granting [wife] therein a Divorce from Bed and Board” and requested “a complete and total Divorce from the Bonds of Matrimony.” A few days later, husband filed a motion to modify the separation agreement regarding parental rights and responsibilities of the parties’ two minor children, which the court held a hearing on and ultimately ordered a new parenting schedule. Father also filed a motion to modify child support, but the parties eventually came to an agreement and the court issued a new child support order in the fall of 2012.
¶ 4. Husband then motioned for summary judgment, seeking enforcement of the terms of the separation agreement for the division of marital property in the impending divorce proceedings. The family court denied husband’s motion, stating that “[t]he issues pertaining to the grant of a final divorce must be determined at the time of the final divorce.” We disagree on grounds that the terms of the parties’ separation agreement were incorporated into a final order by the family court in 2007 and the distribution of property under those terms cannot be modified except on grounds sufficient to overturn a judgment. 
¶ 5. On appeal, this Court reviews summary judgment decisions de novo. O’Brien v. Synnott, 2013 VT 33, ¶ 9, 193 Vt. 546, 72 A.3d 331. Summary judgment is appropriate where there is no genuine dispute of material facts and the moving party is entitled to judgment as a matter of law. V.R.C.P. 56(a). A fact is only material where it “might affect the outcome.” O’Brien, 2013 VT 33, ¶ 9.
¶ 6. Husband contends that he is entitled to judgment as a matter of law, and wife disagrees on the basis that the family court has not litigated the parties’ divorce and therefore has not evaluated the agreement for equity and fairness. This Court does not appear to have addressed the enforceability of a stipulated agreement that has been incorporated into a final separation order in a subsequent divorce. 
¶ 7. Legal separation has rarely been before this Court. Vermont’s statutes contain a separate section for legal separation, but it provides limited guidance in its one-sentence length, stating only that: “A legal separation forever or for a limited time may be granted for any of the causes for which an absolute divorce may be granted.” 15 V.S.A. § 555. What is evident from the statute is that a legal separation can be granted by order of the court where the proper grounds have been met. Here, the court granted just such an order, explicitly incorporating the parties’ stipulation agreement which was intended by the parties to be the “final settlement of their property rights.” No issues were raised by either party or by the family court regarding the equitability of the agreement’s terms at the time of the separation, and the parties waived their right to a final hearing. This resulted in a final order. See V.R.F.P. 4(e)(1) (stating that in an action for legal separation, the court “may grant a final judgment” without a hearing where requested by the parties and accompanied by a separation agreement, parenting agreement, and proposed final order).
¶ 8. Once an agreement is incorporated into a final judgment, it too is final. In re Dunkin Donuts, 2008 VT 139, ¶ 12, 185 Vt. 583, 969 A.2d 683 (2000) (mem.) (“We have often indicated that a stipulated agreement incorporated into a court order has the same preclusive effect as a final judgment on the merits.”); Pouech, 2006 VT 40, ¶ 20 (“Once a stipulation is incorporated into a final order, concerns regarding finality require that the stipulation be susceptible to attack only on grounds sufficient to overturn a judgment.”). Thus, for wife to wish to overturn the property settlement within the agreement, it would have to be on Rule 60(b) grounds, none of which were raised below. See V.R.C.P. 60(b) (offering limited relief from judgment or order for mistakes, inadvertence, excusable neglect, newly discovered evidence, fraud, or other such grounds); Riehle v. Tudhope, 171 Vt. 626, 627, 765 A.2d 885, 887 (2000) (mem.) (recognizing that in wife’s attempt to overturn ...