The “You Snooze, You Lose” Doctrine

Joseph v. Joseph, 2014 VT 66

By Elizabeth Kruska

Mr. and Mrs. Joseph (“husband” and “wife,” because that’s shorter) were married for 23 years, until in December 2011, wife filed for divorce. Ten months later, in October 2012, the parties entered into a temporary stipulation. In part, it called for husband to pay various debts, like the mortgage, taxes, insurance, and utility bills. The parties apparently couldn’t agree to any more than that, and had a 2-day contested hearing in March of 2013.

It would appear that husband didn’t pay for certain things between October and March, as required in the October stipulation. Wife didn’t bring this up during the final hearing, even though it seems that at the time, she knew there were things that weren’t paid. The court divided the property and issued a final divorce decree in April 2013. The parties went on their merry ways and nobody appealed.

In May 2013, wife filed a motion to have husband held in contempt of the October temporary order for having not paid for certain things during the time between the temporary order and the final order. The court denies her motion for lack of subject-matter jurisdiction. The court said that once there was a final order, the temporary order merged into it, making the temporary order go away. In other words, the temporary order no longer exists due to the existence of the final order, so there’s nothing to enforce.

Wife’s not having this, and appeals to SCOV.

SCOV affirms the trial court.

Here’s the thing about property settlements in family court: unless there’s an issue with fraud or coercion, once the property settlement is ordered, it’s final. What’s done is done. Sort of like a tattoo.

Vermont’s property-settlement statute is really broad. It lets the court consider a broad range of factors in determining a property settlement. It doesn’t specifically say that it has to include arrearages accrued from under the temporary order. However, SCOV reads the statute’s breadth to mean that the legislature meant for orders made under that section to be really-actually-no-take-backs final.

SCOV says that in this case, wife surely could’ve raised during the 2-day contested hearing that husband didn’t pay for certain things over the previous five months like he agreed to in the October order. SCOV concedes that there might be costs or arrearages a party didn’t know about that pop up later—like an increase in property taxes, or something like that. But here it seemed as if wife probably knew about these arrearages and simply didn’t raise them during the trial. Thus, the divorce-court-doctrine of You Snooze, You Lose. Raise it during your hearing, because if you don’t, you don’t get to come back. Why? Because what’s done is done.

SCOV also examines some prior Vermont case law, that doesn’t exactly apply here. SCOV also looks at some law from other states where parties can come back and raise issues with arrearages after the final order is issued. SCOV takes a stand, though, and says that family law needs finality and stability, and making people re-litigate arrearages after the final order is issued is contrary to that goal. Raise it during your final hearing, or you don’t get to raise it. Why? Because what’s done is done.