Sunday, August 28, 2016


Vesting. Vest. Get it? 
Coons v. Coons, 2016 VT 88

By Elizabeth Kruska

This is a short opinion, so hopefully this will be a short summary.

Husband and Wife were married but decided to divorce. They had a final divorce hearing that took place over the course of two days. During the second day of the hearing, an issue came up regarding Husband’s military pension. The judge called a recess and called the parties’ attorneys into chambers, where they discussed the status of the case. In the biz we call this a “weather report.” They can be helpful in moving cases along.

During the chambers conference, the judge said he wasn’t going to make an order distributing the military pension, because Husband’s interest in it had not yet vested. The lawyers said, “thanks for the head’s up,” went back out to their clients, and hammered out a final settlement, which included Husband paying Wife $15,000.

A couple weeks after the stipulation was signed, Wife filed a motion to reconsider, saying there is some Vermont case law on exactly this subject. She cited a SCOV case that says un-vested funds, like Husband’s pension, are, in fact, marital property and are subject to equitable distribution. Wife argues that during the chambers conference, the judge and both lawyers got the law wrong, so this part should be reconsidered. The trial judge disagreed, saying that at the time of the hearing she had every right to reject the settlement. He also said that Wife had an attorney the whole time and could have gone forward with the contested hearing rather than settling.

Wife appeals, and SCOV affirms.

For starters, although there is a rule that allows for an amendment to a final order, this is not applicable in the case of a stipulation. The rule on amending a final judgment only is there to change the result so that no party is prejudiced by the inadvertence of the court. For example, I once had a divorce case where the judge issued a final order regarding property ordering that particular items be sold. But the way the order was written it actually wasn’t clear which property the judge meant, so I filed a motion to amend, asking the court to amend the final order by clarifying which property he meant. The judge clarified the order and everyone went on their merry respective ways.

In this case, Wife argued that although the parties entered into a stipulation, the information about the military pension was incorrect. Both parties made a mutual mistake. SCOV points out that although both sides may have been mistaken after having a conversation with the judge, that the parties had lawyers. They should have done their due diligence in making sure the information was correct before relying on it in creating their stipulation.

Wife also made an argument based on timing. The final hearing was held on May 7, 2015, which was the same day the parties created and filed the stipulation. The judge signed it the next day, May 8. The clerk docketed the order on June 3. However, Wife discovered the issue regarding the military pension, and filed her objection on May 21. She argues that the law says a party can make an objection before the stipulation is incorporated into a final order, and that based on the timing, that’s what happened here. SCOV disagrees. The stipulation was created on May 7, and the final order was signed on May 8. Just because it wasn’t docketed until June 3 doesn’t make it so that the order was not final.

So, SCOV affirms the trial court.

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