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| The jokes in this piece will require . . . |
Well, I didn't even check for opinions on December 26th because I figured SCOV would take a holiday break. One should never assume such things.
Two opinions issued on the 26th, both dealing with family law.
Our first opinion for the last week of the year deals with prenups. I want to throw a Kanye West joke in here and a rapping/wrapping pun but I'm tired. Use your imagination like Mr. Squarepants suggests.
Most people know what a prenup is. But just in case you've been living under a proverbial rock, a prenup is an if-this-then agreement that kicks in if a to-be-married couple later divorces, with the divorce acting as the "this" and the "then" being the property distribution (most of the time). They can be useful and bring some clarity to what could otherwise be uncertain times. And sometimes, well . . . .
The Gades married in 2018. They executed a prenup. Without getting into too much unnecessary detail, the prenup says almost all assets and expectancies stay separate, but the house, which husband brought into the marriage, is treated differently. On that front, the prenup says that wife gets 50% of the increase in appraised value, paid out by husband over time (30‑year amortization, balloon at five years, starting the month after appraisal). The agreement also says they'll share living expenses in proportion to income, each cover taxes on their own income/Separate Property, and the breaching party pays the other's reasonable attorney's fees to enforce.
In 2021, the couple separated. Husband filed for divorce two years later. Both of them ask the family division to enforce the prenup, but their visions of "enforce" are . . . different.
Wife moved to enforce. She argued the house was outside family-division jurisdiction because the prenup labels it as husband's separate property, and she wanted her increased-equity payments plus fees. Husband agreed the court should respect the separate property structure, but says wife had: (1) severely damaged the marital home after appraisal, reducing the value of his separate property; (2) failed to pay her proportional share of household expenses; and (3) blown her tax obligations under the agreement.
So, husband asked for a hearing and for an offset: whatever he owed her in appreciation on the house should be reduced by what she owes him for damage and other breaches. The family division instead granted wife's motion to enforce, awarded her attorney’s fees under the prenup, and reasoned that it lacked jurisdiction to award husband anything on his breach theories because it's a court of limited jurisdiction that can allocate marital property but not award "damages." The court suggested husband could go sue in the civil division if the contract allows. Husband moved to reconsider and added his specific claim that wife hadn't complied with the tax provisions either. But the family division was not swayed and insisted it had no jurisdiction to award damages for breach of contract between the parties.
Husband appeals.
SCOV reverses and remands, holding that the family division does, in fact, have jurisdiction to hear and decide husband’s breach‑of‑prenup claims as part of the divorce. SCOV notes that the family division has exclusive jurisdiction over all annulment and divorce proceedings that all property of either or both parties is subject to the family division's jurisdiction in a divorce. SCOV reasons that the family division's jurisdiction is all-encompassing—at least within that limited field.
On prenups in general, SCOV notes that they're contracts, and are enforceable if they don't violate public policy. The family division interprets and enforces them using ordinary contract principles, including the implied covenant of good faith and fair dealing. Because this prenup is central to how the parties want the property resolved, the agreement and disputes about its breach are squarely within the family division's jurisdiction; the parties cannot contractually carve property out of the court's subject‑matter jurisdiction by slapping a "separate property" label on it.
SCOV distinguishes a case with two concurrences that the parties devoted "substantial portions of their briefs to" on the facts and uses the classic "we need not resolve" punt.
According to SCOV, there are two primary problems with the family division's approach here. First, the family division misinterpreted its own jurisdiction when it treated "separate property" as off-limits rather than recognizing that all property of either spouse is within its purview. The question is how to exercise that power, not whether it exists.
Second, the family division enforced one piece of the prenup (the attorney's fees against husband) but refused to consider other linked provisions (the household expenses, taxes, alleged damage to separate property, implied covenants), on the theory that considering those would be an impermissible damages award.
SCOV doesn't decide if husband is actually right about any breach. But it remands so the family division can: (1) develop a record on the alleged breaches; (2) determine whether they're material; and (3) apply contract principles to fashion appropriate remedies, including any offsets or findings of waiver, within the divorce judgment.
Ultimately, SCOV clarifies that parties can't use a prenup to strip the family division of jurisdiction over property or over the agreement that allocates it. They can only shape how that jurisdiction is exercised. And that, as they say, is that. Gade v. Gade, 2025 VT 68.
Our last case for the year is a bit of a cleanup job. Sometimes a trial court says one thing in its property‑division analysis and something else in the decree. When that happens, Rule 60 allows the trial court to fix that error. That's the setup.
The Warners separated in 2023 and litigated their divorce in 2024. They agreed on parent‑child issues and some property division, but left retirement accounts and maintenance for the court to decide.
At the April 2024 final hearing, the court heard evidence that husband had three retirement accounts with balances "current" as of that hearing. In its written decision, the court found both parties contributed comparably over a long marriage and calculated a split in which wife received about 48.67% and husband 51.33% of a marital estate valued at about $1.33 million. That math only maths, however, if wife gets half of husband's retirement account as of the final hearing values.
But in the numbered orders at the end, the court wrote that wife was awarded 50% of husband's retirement "as of the date of separation," which would result in a lower amount to wife and would not sync up with the court's own math. The order also had a built‑in dispute‑resolution clause requiring mediation before filing post‑judgment motions.
Husband first filed a timely motion to amend the judgment to fix a separate issue: the court had intended to credit him for all temporary maintenance payments but missed some months in the duration calculation, so it amended the order to reflect its stated intent; nobody appealed.
Months later, wife moved under Rule 60, pointing out that if you actually divide things using the "date of separation" retirement values, she comes out with less than the intended 48.67% share reflected in the body of the order. She argued the "date of separation" language was just a mistake that undercut the court's own analysis and asked that the retirement allocation be keyed to the final‑hearing date's values instead.
Husband opposed the motion 17 days later and argued that wife skipped the required mediation, so her motion should be dismissed. In any event, husband contended this wasn't a clerical error. Wife had missed her shot to change the property division by not filing a timely motion to amend or appealing.
The family division granted wife's motion without addressing husband's opposition (wrongly reasoning that husband hadn't responded in time), and amended the order to say wife gets 50% of husband’s retirement "as of the date of the final hearing, April 30, 2024." Husband filed a motion to strike the amendment arguing that the court needed to hold a hearing under Rule 60(b). The trial court denied the motion to strike, explaining that its fix was under Rule 60(a), not 60(b), and that it was just making the written order match the division it had actually decided on in May of 2024.
Husband appeals.
On appeal, he makes three arguments. First, he argues that the trial court misused Rule 60(a). Second, he argues the trial court used the wrong response deadline. Third, he argues the trial court failed to enforce the mediation requirement. SCOV engages on the first issue and, concluding there's no error, does not reach the additional arguments.
SCOV looks to federal Rule 60(a) jurisprudence, which Vermont tracks. And Rule 60(a) lets a trial court fix "clerical mistakes" or errors "arising from oversight or omission" at any time, on its own or on motion, where the written judgment garbles what the court actually decided. The key distinction here is that a mistake can be corrected under Rule 60(a), but it can't be used to change the substance or the actual reasoning.
Turning to the order in this case, SCOV notes that the family division's findings explicitly value husband's retirement as of the final hearing and then build an equitable division that only works if wife gets half of those numbers. SCOV further reasons that the body of the decision carefully explains why an approximately 48.67/51.33 split is fair based on the statutory factors, with the retirement accounts included at those "current" values. And the lone "date of separation" phrase in the final numbered paragraphs doesn't fit the math or the reasoning and would actually change the split in a way the court never discussed.
And so, SCOV concludes this is classic 60(a) territory. The trial court intended to award wife 50% of husband's retirement as of the final‑hearing date and simply miswrote the valuation date at the end. Correcting that date doesn't change anything the court meant to adjudicate; it just makes the paper match the decision.
Husband argues that 60(a) is limited to "minor" errors and a six‑figure swing in retirement money can't be minor. SCOV disagrees. Essentially, "date of separation" is more a typo than anything else and the trial court can certainly correct that kind of error—that is, after all, what the rule is for.
SCOV adopts the federal view that even a big-dollar consequence can still be a clerical correction if it merely makes the judgment conform with what was actually decided. Because the correction is to carry out, not change, the division the court chose, there's no need for an evidentiary hearing on how much more wife gets; the only relevant question is intent, which is answered within the four corners of the original order.
As to husband's procedural complaints, SCOV reasons that it doesn't matter whether wife's motion was "dispositive" (30 days) or not (14 days), because Rule 60(a) lets the court correct clerical mistakes "at any time" on its own initiative, so any miscalculation of the response deadline is harmless. Similarly, even if the court should have enforced the mediation requirement before reaching wife's motion, the power to correct its own clerical error does not depend on wife's procedural compliance; the court could have made the same correction on its own.
Because the outcome—changing "date of separation" to "date of the final hearing" for the retirement valuation—would be the same regardless, any procedural error in handling wife's motion did not prejudice husband and does not warrant reversal.
SCOV affirms and that closes out 2025. Warner v. Warner, 2025 VT 70.
I would say "see you next year!" but it's a bit late for that. Until next week or maybe the week after . . . .
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