Friday, November 14, 2014


Kevin Barrup (Marilyn Barrup, Intervenor) v. Tammy Barrup, 2014 VT 116

By Elizabeth Kruska

Normally, we pare down the case name to its bare necessities, but with this case the long form seemed, you know, appropriate.  Now, before anyone makes a “meddling mother in law” or “helicopter parent” comment, let’s start with Justice Skoglund’s concurring opinion to explain why we even are where we are.

It’s really really rare that a third party can intervene in a divorce case. Generally speaking, spouses have the right to fight their own battles when they get divorced. If courts let third parties in as intervenors with any regularity, already-acrimonious situations could get completely out of control with all sorts of third parties wanting to get involved, court-wise. Justice Skoglund made a nice 5-point test to help figure out if someone could properly intervene in a divorce.

Even then, if a third party can intervene, it doesn’t mean they should or that the court should let them. The scope has to be really narrow and really limited. If a third party has a property right that is somehow going to be infringed upon as a result of a divorce order, then it is possible the third party could intervene to make sure his or her property rights are preserved. Due process and all that good stuff.

That having been said, here’s the story. Kevin and Tammy were married about 18 years and then divorced. Kevin had some interest in some closely-held family businesses, and also some investments. After taking evidence, the court awarded 70% of an investment to Tammy and the business interest to Kevin. The court also ordered that Kevin pay Tammy $12,000/year on a quarterly basis in maintenance until she turns sixty-two (it’s unclear how old she was at the time of the filing, although as my very wise sister-in-law would say of a lady’s age, that’s “top secret.”)

Kevin appealed, originally, because some of the property that was given to Tammy was actually property he didn’t believe he actually had. Wait, what?

Enter Marilyn, stage right.

As it turns out, the property that was going to be distributed under this 70% plan was an investment account that Kevin inherited from his grandmother. But (there’s always a but), he didn’t have access to it, as it was held by his own mom, Marilyn, until the time that she died. At the hearing, the only evidence tendered was that the investment was held jointly between Marilyn and Kevin. When Marilyn found out what the court ordered, she filed a motion to intervene, because the court’s order actually gave away some of her property without due process.

SCOV said it was okay for Marilyn to intervene since it looked like the trial court might have given away property it couldn’t. SCOV also noted that there wasn’t a trust document that made it clear that Kevin didn’t actually have access to the account. On the other hand, SCOV recognized that the way Marilyn was holding the investment made it look like an estate plan and not like a gift to Kevin. SCOV thought the trial court should probably consider other evidence, like stock certificates, and whatnot, in order to determine who really held or owned the property and how.

In the absence of that kind of evidence, the trial court presumed, as it may, that Kevin and Marilyn were current joint owners of the investment. The trial court ordered that Marilyn give Tammy 35% of the investment, or 70% of Kevin’s 50% joint share. SCOV said this was okay.

There are two schools of thought in the various states about percentage shares of joint property. Some states presume that joint owners own the property in equal shares. So, hereeach owns 50%. Other states presume that each owner owns 100% of the property. Vermont decided to go with the 50% idea here and assumed that each Kevin and Marilyn were entitled to 50% of the investment. Since the trial court ordered that Tammy would get 70% of the investment, but it couldn’t award Marilyn’s property to Tammy, she gets 70% of Kevin’s share, or 35% of the total.

So, Tammy appeals. She appealed the decision to allow Marilyn to intervene, the property division, and the change in a maintenance award.

SCOV, as noted above, said it was okay for Marilyn to intervene so that her property interest in the investment could be protected. Courts can’t go distributing property that doesn’t belong to a party.

They also determined that the trial court’s division of the investment account was fine and within its discretion. Although Tammy ended up getting less under this distribution plan, SCOV notes that the trial court has wide discretion in property settlements. SCOV gives a lot of deference to trial courts, and won’t disturb rulings unless they really have to because they’re grossly unfair or not supported by the evidence.

Tammy also appealed Kevin’s motion to reduce maintenance. He was originally ordered to pay $1000 per month. That was reduced to $850 after Kevin asked to have it reduced due to a reduction in his income. The family owns a trucking company that took quite a hit after Hurricane Irene. SCOV said that Kevin’s evidence that his income had an unanticipated change was sufficient. (Because nobody expects hurricanes in landlocked states. Just sayin’.) Tammy tried to convince the court that Kevin made a lot more money than he actually does, but that wasn’t borne out by the evidence. The reduction of $150/month was modest and appropriately supported, so SCOV leaves this alone.

No comments:

Post a Comment