Boisselle v. Boisselle

648 A.2d 388, 162 Vt. 240, 1994 Vt. LEXIS 79
CourtSupreme Court of Vermont
DecidedJune 24, 1994
Docket90-321
StatusPublished
Cited by23 cases

This text of 648 A.2d 388 (Boisselle v. Boisselle) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boisselle v. Boisselle, 648 A.2d 388, 162 Vt. 240, 1994 Vt. LEXIS 79 (Vt. 1994).

Opinions

Dooley, J.

On motion to modify by plaintiff, Roberta Boisselle, the Chittenden Superior Court modified a divorce decree to amend a provision dealing with the disposition of the family residence. Defendant, Raymond Boisselle, appeals arguing that the court did not have the power to modify the preexisting property award. We agree and reverse.

The parties were divorced on October 25, 1984. The court’s order, which was based on a stipulation, gave custody of the parties’ minor child to plaintiff and required defendant to pay $75 per week in child support, with a cost of living adjustment provision. The provision critical to this case gave plaintiff exclusive use and possession of the family home on North Avenue in Burlington during the minority of the child. The order went on to require that the property be sold when the child reached her eighteenth birthday, with the proceeds to be split equally by the parties, and to require that the parties share [242]*242certain maintenance costs. The order also distributed the available personal property and provided that neither party would be entitled to alimony “now or permanently in the future.”

Plaintiff moved to modify the order in June 1988, some three years before the child was to turn eighteen. Some time after the divorce, plaintiff developed a severe case of multiple sclerosis, which rendered her unable to work. As a result, plaintiff’s income fell to $680 per month that she received from Social Security and a disability insurance policy. Plaintiff requested that the order be changed to allow her to remain in possession of the house, which she had modified to accommodate her disability, throughout her life. At the time the court addressed the modification question, the house was worth approximately $90,000, with an outstanding mortgage balance of $17,000 and a monthly mortgage payment was $202 per month.

Reasoning that V.R.C.E 60(b)(5) allowed the court to prospectively modify a judgment in proper circumstances and that changing the date of sale of a house is a prospective modification, the court granted the motion and postponed the sale until plaintiff’s condition “requires her to live elsewhere.” The court justified its order on the unforeseen deterioration of plaintiff’s health and the absence of hardship on defendant. Defendant appeals arguing that the court’s order was an improper modification of a final property award. We agree.

As the trial court found, Vermont law is clear that the court cannot modify the property disposition aspects of a divorce decree absent circumstances, such as fraud or coercion, that would warrant relief from a judgment generally. See Viskup v. Viskup, 149 Vt. 89, 90, 539 A.2d 554, 555-56 (1987). We have applied this principle to cases in which the timing or manner of the transfer of property is in issue. For example, in Viskup, defendant was required to pay a property award to his wife in three annual installments. When defendant defaulted on the first installment, plaintiff moved to modify the payment schedule to accelerate the obligation to pay the entire amount. This Court held that in the absence of a provision allowing for acceleration, the change in the payment schedule was an improper modification of a property disposition. Id. at 91, 539 A.2d at 556. In Robinson v. Robinson, a case similar to that now before us, we reversed a modification order that extended the time in which the spouse awarded the family home had to pay off an amount awarded to the other spouse as settlement of the latter’s property interest in the home. 130 Vt. 558, 562, 298 A.2d 556, 558-59 (1972). Although the modification did not change the amount of payment, the change in the timing of payment was sufficient to bring the case within the prohibition. Id. at 561, 298 A.2d at 558; see [243]*243also Clifford v. Clifford, 133 Vt. 341, 344-45, 340 A.2d 60, 62 (1975) (“adjustment of property rights accomplished by transfer of property and payment of money over a long period” cannot be modified absent grounds for modifying ordinary judgment).

The trial court here recognized the limitation on modification of property disposition awards but found that grounds to modify a civil judgment applied. Specifically, the court relied upon V.R.C.P. 60(b)(5),1 which allows relief from judgment when “the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.” The court found in the last phrase the power to modify a judgment to the extent the modification operates on the prospective application of the judgment and is required by the equities of the situation. Thus, the court found it could, and did, “change the prospective effect of that judgment to allow plaintiff to remain in the house.”

V.R.C.P. 60(b)(5) is identical to Federal Rule of Civil Procedure 60(b)(5), which implements the holding in United States v. Swift & Co., 286 U.S. 106 (1932), an equity case dealing with the modification of an injunction. In Swift, the United States Supreme Court held that federal courts have the power to revoke or modify an injunction which “has been turned through changing circumstances into an instrument of wrong.” Id. at 114-15. The Court distinguished between “restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change,” which cannot be modified, and injunctions “that involve the supervision of changing conduct or conditions and are thus provisional and tentative,” which can. Id. at 114.

Our one case interpreting Rule 60(b)(5) is so dissimilar from this one that it supplies little guidance. See J.L. v. Miller, 158 Vt. 601, 614 A.2d 808 (1992). The federal cases show that the primary significance of Rule 60(b)(5) is with regard to injunctions, although its application is not limited to equity actions. 11 C. Wright & A. Miller, Federal Practice & Procedure § 2863, at 205 (1973); see also Kock v. Virgin Islands, 811 F.2d 240, 244 (3d Cir. 1987) (rule refers primarily [244]*244to prospective effect of equity decrees). That source is important because of the “basic principle that an injunction does not create any vested rights for a plaintiff; it is simply a remedy designed to vindicate pre-existing rights.” Stewart v. General Motors Corp., 756 F.2d 1285, 1291 (7th Cir. 1985). Building on this principle, one court defined prospective application, the triggering requirement of the rule, as follows:

Thus, the standard we apply in determining whether an order or judgment has prospective application within the meaning of Rule 60(b)(5) is whether it is “executory” or involves “the supervision of changing conduct or conditions,” within the meaning of. . . Swift.

Twelve John Does v. District of Columbia, 841 F.2d 1133, 1139 (D.C. Cir. 1988).

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Boisselle v. Boisselle
648 A.2d 388 (Supreme Court of Vermont, 1994)

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Bluebook (online)
648 A.2d 388, 162 Vt. 240, 1994 Vt. LEXIS 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boisselle-v-boisselle-vt-1994.