Appeal from Superior Court, Franklin Unit, Family Division
June Term, 2016 Howard E. Van Benthuysen, J.
Nicholas L. Hadden, St. Albans, for Plaintiff-Appellee.
A. Adamski of Kolvoord, Overton & Wilson, PC, Essex
Junction, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
1. Wife seeks to set aside a stipulated final order for
divorce on the ground that she entered into the agreement in
reliance on an in-chambers "weather report" in
which the trial judge misstated the applicable law. We
2. The material facts are not in dispute. On May 7, 2015,
the parties conducted the second day of their final divorce
hearing. Over the course of the hearing, testimony was
elicited about the parties' assets, including
husband's not-yet-vested military retirement benefit.
Near the end of the hearing, the trial court called a brief
recess and asked counsel to meet in chambers. According to
the trial court, during that in-chambers meeting it told the
parties that "it would not and could not distribute
[husband's] military retirement because he had not yet
served the requisite number of years to vest in the system.
In short, there was not yet anything to distribute because
[husband] had no entitlement to the benefit." The trial
court indicated that the benefits could be distributed only
once they vested; because husband was ten months shy of a
full twenty years of service as of the final hearing date,
there was nothing to distribute.
3. Following this conference in chambers, the parties entered
into an stipulation resolving all outstanding issues. With
respect to property division, wife agreed to accept a
lump-sum payment of $15, 000 and waived any claims to
husband's expected but not-yet-vested military retirement
benefit. Wife affirmed on the record her satisfaction with
the stipulation, and the trial court incorporated the
stipulation into the final divorce decree. The court signed
the final order the next day, and made the decree nisi
absolute on May 7.
4. On May 21, wife filed a Rule 59 motion to alter or amend
the final order. See Reporter's Notes, V.R.C.P. 59
("Rule 59(e) gives the court broad power to alter or
amend a judgment on motion within ten days after entry
thereof."), incorporated by V.R.F.P. 4(a)(1)
(noting that Rules of Civil Procedure apply in family law
context unless "otherwise provided"). The motion
was predicated on wife's subsequent determination that
the trial court was mistaken in asserting that the unvested
military benefits could not be subject to equitable division.
In support of her conclusion, she cited Golden v.
Cooper-Ellis, in which we held that stock options that
are deferred compensation for past and present performance
must be considered marital property even though vesting
occurs in the future. 2007 VT 15, ¶ 20, 181 Vt. 359, 924
A.2d 19. Wife asked the court to rescind the portion of the
stipulation that waived any claim to her husband's
retirement benefits, but to keep intact all other portions of
the parties' agreement. The trial court denied the
motion. Although the court maintained its position on the
merits that the unvested military pension was not marital
property subject to equitable division, it ruled that wife
was bound by her stipulation. The court stated that wife:
"could have rejected the proposed stipulation"; had
an "opportunity to argue before the [c]ourt that the
benefit should be included in the property settlement";
had an attorney throughout the entire proceedings whom she
could have consulted; and could have reserved the right
"to litigate or appeal the issue of the unvested
military pension." Since wife did "none of those
things, " the trial court denied the motion. Wife
5. On appeal, wife makes two arguments. First, she argues the
stipulation was based on a mutual mistake of law and
therefore should be set aside. Second, she argues that her
motion to amend was timely, and therefore the trial court
should have reviewed the stipulation to make sure it was fair
6. A Rule 59 motion to alter or amend the judgment may be
granted "to relieve a party against the unjust operation
of the record resulting from the mistake or inadvertence of
the court and not the fault or neglect of a party."
Rubin v. Sterling Enters., Inc., 164 Vt. 582, 588,
674 A.2d 782, 786 (1996) (citing V.R.C.P. 59(e)). Such a
motion "is addressed to the sound discretion of the
trial court, and that court's ruling is not reversible
unless it constitutes a manifest abuse of discretion."
Chelsea Ltd. P'ship v. Town of Chelsea, 142 Vt.
538, 540, 458 A.2d 1096, 1098 (1983).
7. As a starting point, we have recognized that where parties
enter into a binding final stipulation, they forfeit the
ability to challenge rulings of the court that preceded that
stipulation. See Willey v. Willey, 2006 VT 106,
¶ 23, 180 Vt. 421, 912 A.2d 441 (declining to consider
husband's challenge to court's pretrial ruling
concerning effect of prenuptial agreement where parties
subsequently entered into binding stipulation resolving
8. Wife first contends that this general rule does not apply
because the parties' stipulation was based on a mutual
9. We have recognized that divorce stipulations "may be
subject to reformation on the grounds of mutual
mistake." Blanchard v. Blanchard, 149 Vt. 534,
536, 546 A.2d 1370, 1372 (1988) (citing Ferris v.
Ferris, 140 Vt. 12, 15, 433 A.2d 304, 306 (1981)). To be
eligible for reformation on the grounds of mutual mistake,
the moving party must show that the stipulation was entered
into under a mutual mistake regarding a material fact, or was
based on a mutually assumed state of facts that later proved
to be erroneous. Ferris, 140 Vt. at 12, 433 A.2d at
306. Wife argues that the trial court's in-chambers
statement concerning its view of the law established a
mutual, albeit mistaken, understanding that formed a basis
for the parties' settlement discussions.
10. At least in cases in which a party is represented by
counsel, a legally erroneous ruling by the trial court,
whether on the record or off the record, is generally not the
kind of mistake that supports setting aside a divorce
stipulation. See Varveris v. Fisher, 645 N.Y.S.2d
853, 854 (N.Y.App.Div. 1996) (noting that "a mistake as
to the law is insufficient grounds for vacating a
stipulation" (quotation omitted)). Lawyers are charged
with knowing the law. See Matter of Wines, 660 P.2d
454, 457 (Ariz. 1983) (in banc) ("We charge lawyers with
knowledge of what the law requires and place them under an
affirmative duty to accomplish what is required of
them."). Assuming without deciding that the trial court
was wrong on the law, wife's remedy was to obtain a
judgment and then appeal. At a minimum, rather than entering
into a stipulation after the in-chambers conference, wife
could have researched the issue before stipulating. See
Pinsburg State Bank v. Abundo, 2012 UT 94, ¶
14, 296 P.3d 709 (noting stipulations are generally set aside
only where there is mistake "not due to failure to
exercise due diligence, " and noting ...