SCOVT reverses judgment that declined to enforce a life insurance provision in a divorce order and remands for further proceedings, holding that – because it was stipulated – the life insurance provision is valid and enforceable; Court divided on whether plaintiff entitled to judgment to proceeds of policy purchased after the divorce that named another beneficiary.

 diMonda v. LincolnNational Corp , 2025 VT 45  [8/8/2025]

REIBER, C.J.   This appeal concerns entitlement to the proceeds of two life insurance policies.  Plaintiff Victoria diMonda claims an equitable interest in a portion of the proceeds based on her stipulated divorce agreement with decedent, which was adopted as a final order by the family division.  The civil division denied plaintiff’s motion for summary judgment and granted defendants’ motions for summary judgment and judgment on the pleadings.  We affirm the judgment granting interpleader relief to defendant USAA Life Insurance Co., but otherwise reverse and remand for further proceedings. 

 

The primary issue on appeal is whether the trial court correctly held that the life-insurance provision in the 2011 divorce order was invalid and as an attempt to secure postmortem maintenance.

 

The 2011 stipulated order provided that “[Decedent] shall maintain in place his present life insurance policy with SGLI with a payable on death benefit of $400,000, or a policy which has the same minimum death benefit, at his option [and] shall name Plaintiff as primary, 100% beneficiary on this life insurance policy for at least the next fifteen (15) years…”

 

Decedent retired from the military in April 2021, making him ineligible for the SGLI policy, and he did not thereafter obtain a new policy with the same minimum death benefit that named plaintiff as sole beneficiary.

 

However, when decedent died in December 2023, he held two other policies. In 2015, he obtained a $400,000 life insurance policy from USAA Life Insurance Co. and named Barrows as the sole beneficiary on this policy.  In 2020, he obtained a $250,000 life insurance policy from Lincoln National Life Insurance Co. and also named Barrows as the primary beneficiary. 

 

In January 2024. plaintiff filed this action against Lincoln, USAA, and Barrows, seeking a declaration that she was entitled to be paid $400,000 under the terms of the final divorce order. 

 

Barrows moved for judgment on the pleadings.  She argued that the life-insurance provision in the final divorce order was invalid because it would violate this Court’s caselaw prohibiting courts from awarding postmortem spousal maintenance. Lincoln also moved for judgment on the pleadings. It argued that even if the provision were enforceable, the plain language of the order did not apply to Lincoln’s $250,000 policy.  USAA moved for interpleader relief in the form of an order requiring it to deposit its policy’s death benefit with the court and dismiss USAA from the action.  Finally, plaintiff moved for summary judgment, arguing that the life-insurance provision was enforceable both because it was not tied to the spousal-maintenance provision and because decedent agreed to it.

 

The civil division granted defendants’ motions and denied plaintiff’s motion.  The court agreed with defendants that the life-insurance provision in the final order was intended to secure spousal maintenance beyond death and was therefore invalid and unenforceable.  The court held that Barrows was entitled to retain the $250,000 death benefit paid by Lincoln.  It ordered USAA to pay the $400,000 death benefit on its policy into escrow.

 

Our decisions make clear the family division does not have authority to order spousal maintenance to continue beyond the obligor’s death or to require the obligor spouse to name the obligee as a beneficiary on a life insurance policy for the purpose of securing unpaid maintenance.

 

 However, these decisions do not support the trial court’s conclusion that the life insurance provision in this case was unenforceable, for two reasons. First, it is not clear that the life-insurance provision was actually intended to secure post-mortem maintenance. 

 

Second, the provision was not imposed sua sponte by the family division.  Rather, the parties agreed to it as part of their stipulated property settlement. Because, as  we acknowledged in Justis and Meier, the parties can agree to postmortem maintenance, it follows that they may agree to secure a maintenance obligation with life insurance. Justis v. Rist, 159 Vt. 240, 244  (1992) (“[T]he courts have no authority to order maintenance to continue beyond the life of the obligor spouse unless the parties have agreed otherwise.” (emphasis added)).; Meier v. Meier, 163 Vt. 608, 610 (1994) (mem.)(  “the parties may agree to maintenance following the death of the obligor.” )

We reverse the trial court’s judgment, except for the portion of the order granting interpleader relief to USAA. No party challenges the court’s award of interpleader relief to USAA and our holding does not affect this aspect of the judgment.   

We remand for the court to consider whether plaintiff is equitably entitled to recover $400,000 or some other amount from the proceeds of either of the policies at issue in this case, and whether her claim takes priority.

The court should also address defendants’ claims that the life insurance provision does not entitle plaintiff to the proceeds of either the USAA or Lincoln policies because neither existed at the time of the divorce.

 

Affirmed as to the judgment granting interpleader relief to defendant USAA Life Insurance Co.; otherwise, reversed and remanded for further proceedings consistent with this opinion.

TEACHOUT, Supr. J. (Ret.), Specially Assigned, joined by EATON, J., dissenting in part.   I dissent as to that portion of the instructions on remand concerning distribution of the $400,000 USAA insurance proceeds.  Equity is the basis for plaintiff’s entitlement to life insurance for the reasons set forth in the majority opinion, but once plaintiff is entitled to receive life insurance, enforcement of the parties’ negotiated stipulation calls for her to have the full USAA policy proceeds, as that $400,000 amount was specifically provided for in the stipulation.

 

 Under both the court order and the contract created by the stipulation, plaintiff was guaranteed to be the “100% beneficiary” of $400,000 in life insurance for fifteen years. Decedent died within fifteen years of the stipulation.  Equitable enforcement of the insurance provision does not extend to giving the trial court the discretion to divide up the funds between plaintiff and other parties whose claims arose later.

 

I would order the trial court on remand to award plaintiff the $400,000 proceeds of the USAA insurance policy, award Barrows the full amount of proceeds of the Lincoln policy.

SCOVT dismisses appeal from non-final order requiring DCF to submit a new case plan.

In re C.P. & L.P., Juveniles 2019 VT 62 (mem) [filed 8/26/2019]

Juveniles C.P. and L.P. filed a notice of appeal of the family division’s order, following a permanency planning hearing, rejecting the parties’ proposed case plan that would have modified the original disposition order and requiring the Department for Children and Families (DCF) to submit a new case plan. We conclude that the order being appealed was not a final appealable order and therefore dismiss the appeal

The May 14 order was not a final appealable order because the  order did not modify the original disposition order. Nor did the court conclusively determine all matters before it at the permanency hearing. See In re D.D., 2013 VT 79, ¶ 22, 194 Vt. 508, 82 A.3d 1143 (“An appealable order is one that finally disposes of the matter before the court by settling the rights of the parties on issues raised by the pleadings.”). 

Rather, the court rejected DCF’s permanency recommendations, directed DCF to prepare and submit a new case plan, and set the matter for further hearing to review the new plan. Cf. In re G.B., Juvenile, 2019 VT 48, ¶ 9 (concluding that order denying petition to terminate mother’s parental rights was not final appealable order because, rather than finally resolving the status of mother’s parental rights, it directed DCF to prepare new case plan).

Under the particular circumstances of this case, the order being appealed was not a final order to which they had a right to appeal. Appeal dismissed.

How cited

SCOVT dismisses parental rights appeal for lack of a final judgment.

In re G.B., Juvenile, 2019 VT 48 [Filed  07/12/2019]

REIBER, C.J. Juvenile G.B., born in June 2017, appeals the court’s order denying his petition to terminate mother’s parental rights and directing the Department for Children and Families (DCF) to prepare a new disposition plan for mother. We dismiss the appeal for lack of a final judgment.

The court concluded, that mother was ready, willing, and able to resume a constructive role in G.B.’s life and that she “should be given the opportunity over the next six months to reunify with G.B.” Therefore, the court denied the petition to terminate mother’s rights. The court explained that the case was “still at disposition” and directed DCF to prepare a new disposition plan in light of the court’s decision. ¶ 7. G.B. then filed a notice of appeal from the denial of the petition to terminate mother’s rights.

As a threshold question, we address mother’s motion to dismiss the appeal for lack of a final judgment. 

“An appealable order is one that finally disposes of the matter before the court by settling the rights of the parties on issues raised by the pleadings.” In re A.D.T., 174 Vt. 369, 373, 817 A.2d 20, 24 (2002). In juvenile proceedings, the statute provides that disposition orders are final orders. 33 V.S.A. § 5318(d); see id. § 5315(g) (providing that merits adjudication is not final order subject to appeal). This Court has explained that where the court terminates one parent’s rights, the order severs the legal relationship between that parent and the child and the order can be appealed as a final judgment, even if the rights of another parent are unresolved. In re A.D.T., 174 Vt. at 373-74, 817 A.2d at 24 (explaining that each petition to terminate “commences a new and separate proceeding”).

The order juvenile seeks to appeal in this case—the denial of the petition to terminate mother’s rights—is not final because it was neither a final judgment nor a disposition  order. The order denying termination of mother’s rights did not finally resolve the status of mother’s parental rights and therefore was not a final judgment. The family court specifically declined to issue a disposition order, indicating that the case was “still at disposition” and directing DCF to prepare a new case plan for G.B. Therefore, there was no disposition order to appeal. As we have explained, orders entered pending final disposition are “generally unappealable.” In re I.B., 2016 VT 70, ¶ 7, 202 Vt. 311, 149 A.3d 160.

DIvided court reverses order declining to terminate father’s parental rights.

In re N.L., Juvenile, 2019 VT 10 [filed  2/8/2019]

SKOGLUND, J. This case concerns petitions to terminate the parental rights of both mother and father with respect to their child, N.L. The family division of the superior court granted the petition to terminate mother’s parental rights but denied the petition concerning father. Mother appeals the termination of her parental rights, and N.L. appeals the court’s decision not to terminate father’s parental rights. We affirm the termination of mother’s parental rights and reverse the court’s order declining to terminate father’s parental rights. We remand the matter for the limited purpose of directing the family division to grant the petition to terminate father’s parental rights.

The family division’s order terminating mother’s parental rights is affirmed. The family division’s order declining to terminate father’s parental rights is reversed, and the matter is remanded for the court to grant the petition to terminate father’s parental rights.

ROBINSON, J., concurring in part and dissenting in part. These cases are hard. Termination of parental rights may sever an established parent-child relationship that is both constitutionally protected and potentially vitally important to child and parent alike. But the failure to terminate when the evidence warrants it risks extending a period of uncertainty, with potential 16 adverse impacts on the very children the laws seek to protect. I believe the best way to manage these difficulties is to rely on the system we have established—one in which a factfinder who can directly observe the witnesses and review the evidence in that context determines the facts and exercises the difficult discretionary judgments, and an appellate court ensures that the factual findings are in fact supported by evidence in the written record and the difficult judgment as to the ultimate question falls within the trial court’s broad discretion, subject to clear standards on review. I believe the majority, however well-intentioned, has departed from this framework by filling in the gaps it perceives in the trial court’s fact-finding with appellate fact findings of its own. For that reason, I respectfully dissent from the majority’s ruling reversing the trial court’s denial of the termination petition as to father.

SCOVT reverses denial of joint motion to modify final property division order; such relief is authorized in limited circumstances under Rule 60

Sandra L. Penland (Warren) v. John W. Warren, Jr., 2018 VT 70 

REIBER, C.J. Husband appeals the trial court’s denial of husband and wife’s joint motion to modify their final divorce order. The issue in this case is whether the trial court has jurisdiction under Vermont Rule of Civil Procedure 60(b)(6) to modify a property-division order based on the agreement of the parties after the divorce order has become absolute. We hold the court does have jurisdiction, and accordingly we reverse and remand.

The court declined to exercise its discretion because  it found, as a matter of law, that it lacked jurisdiction to modify the property division. Whether the court has authority to exercise its discretion is a legal issue that we review de novo.

Under Rule 60(b), “the court may relieve a party . . . from a final judgment, order, or proceeding” for several enumerated reasons, such as mistake, V.R.C.P. 60(b)(1), and fraud, V.R.C.P. 60(b)(3). Rule 60(b)(6) authorizes relief for “any other reason justifying relief from the operation of the judgment.” The subsection is available only where the other criteria under Rule 60(b) do not apply.

Rule 60(b)(6) is available and appropriately used to provide relief from a final property-division order where “extraordinary circumstances” justify relief “to prevent hardship or injustice.” Wilson v. Wilson, 2011 VT 133, ¶ 5, 191 Vt. 560, 38 A.3d 50 (mem.) (quotations omitted). This opportunity for relief applies to final property divisions in divorce orders as it does to other final orders and judgments. See id. ¶¶ 5-6 (affirming that court can modify divorce order under Rule 60(b)(6) only if there are “unusual circumstances” that “would warrant relief from a judgment generally” (quotations omitted))

In considering whether such circumstances exist here, the court should note that the parties have agreed to a stipulated modification. This is not a situation where one or both parties seek to continue litigation past its end. See Richwagen, 153 Vt. at 4, 568 A.2d at 421 (stating “the grounds for relief authorized under Rule 60(b)(6) are broad” but limited by need for “certainty and finality of judgments so that litigation can reach an end”). Rather, this situation is an attempt to respond in a mutually beneficial way to emerging circumstances. Although the court has discretion to decline to accept a stipulated modification, it is more likely that modification under Rule 60(b)(6) is appropriate where the parties have stipulated to an agreement.

Family law. Court cannot enforce a separation agreement without considering whether it is fair and equitable pursuant to the relevant statutory factors at the time of the final hearing.

Lourie v. Lourie, 2016 VT 57 (filed 5/13/2016)

EATON, J. Husband appeals from a final divorce order, arguing that the family division of the superior court failed to consider the relevant statutory factors before incorporating the parties' pretrial separation agreement into the divorce order. We reverse and remand.

The family court found that “subsequent events and [husband’s] current financial circumstances have made it difficult, if not impossible, for [husband] to currently comply with that $4000 per month obligation, but the agreement appears to have been mutually arrived at and was fair, reasonable and appropriate at the time” it was executed. The court concluded that the agreement is valid and enforceable, and that it would “not perform a separate or independent analysis under 15 V.S.A. § 752, and [would] not specifically consider the respective factors."

Husband contends that the court abused its discretion by adopting the separation agreement without considering its fairness in light of the statutory factors contained in 15 V.S.A. § 752 for awarding maintenance. According to husband, the family court’s express decision not to conduct a statutory analysis resulted in the court failing to consider his inability to pay the maintenance obligation contained in the separation agreement.

Husband relies on  Pouech v. Pouech, 2006 VT 40, 180 Vt. 1, 904 A.2d 70 where we concluded under the circumstances of that case that “the court should have given the parties an opportunity to present evidence on the fairness of their stipulation,” after which “the court had the discretion to reject the stipulation on grounds that it was inequitable in light of the relevant statutory factors.”

We agree with husband that the family court failed to exercise its discretion to determine whether the parties’ agreement was fair and equitable pursuant to the relevant statutory factors at the time of the final hearing. Accordingly, we remand the matter to the family court to make a determination based on the relevant statutory factors as to whether the parties’ agreement should be incorporated into the final divorce order.

The superior court’s decree of divorce is affirmed; however, its maintenance award, property division, and judgment of arrears are reversed.

Homestead rights. Moving into husband-owned vacation home and filing for divorce did not give wife a “homestead” that precluded husband from refinancing mortgage.

Brattleboro Savings and Loan Association v. Hardie, 2014 VT 26 (21-Mar-2014)

DOOLEY, J. Plaintiff Brattleboro Savings and Loan Association appeals a superior court decision ruling that Mangini holds title to a property, free and clear of a mortgage to plaintiff. The superior court ruled that the mortgage was inoperative because Mangini’s husband, defendant Richard Hardie, mortgaged the property without the participation of Mangini in violation of 27 V.S.A. § 141(a). We reverse.

“A homestead or an interest therein shall not be conveyed by the owner thereof, if married, except by way of mortgage for the purchase money thereof given at the time of such purchase, unless the wife or husband joins in the execution ” 27 V.S.A. § 141(a).  The parties agree that § 141(a) would apply only if Mangini had a homestead exemption at the time that the new mortgage was created.

In 2002, Hardie borrowed $209,000 from Brattleboro Savings in order to purchase a vacation home. Hardie was married to Mangini at the time, but was the sole owner of the property, and Mangini did not sign either the promissory note or the mortgage. In April 2007, Mangini left the couple’s New Jersey home and moved into the vacation home. In February 2008, Mangini filed for divorce and claimed that the property had become her primary residence as of May 2007. The family court’s interim domestic order forbade either spouse to “remove, sell, assign, transfer, dispose of, lend, dissipate, mortgage or encumber any marital property. In April 2008, while Mangini was occupying the property and the divorce was pending, Hardie refinanced the mortgage on the property. The 2008 refinancing was completed without Mangini’s participation.

In January 2011, Brattleboro Savings commenced a foreclosure action on the property, naming only Hardie as a defendant. Mangini filed an answer asserting an affirmative defense that she had established a homestead interest in the property prior to the 2008 mortgage, and that therefore the 2008 mortgage was “inoperative to convey” her homestead interest. The court granted summary judgment in favor of Mangini, declaring the entire 2008 mortgage on the property unenforceable against Mangini.

The court reasoned that Mangini acquired an equitable interest in the property when she filed for divorce, thus fulfilling the dual requirement for establishing a homestead interest—occupancy and equitable title—as set out in Soter, 26 B.R. at 841 (holding that equitable or legal title is required to establish homestead exemption)

The issue is whether Mangini had an sufficient “equitable interest” at the time of the refinancing because the family court exercised jurisdiction over all of the marital property and she stood to be awarded any or all of it, regardless of which of the spouses held legal title.

We agree with Brattleboro Savings that Mangini did not acquire equitable title to the property by filing for divorce. Because Mangini did not acquire equitable title, she is not entitled to a homestead exemption from the 2008 mortgage, and the security created by the 2008 mortgage is valid against her.

27 V.S.A. § 101 requires that the property claimed as a homestead must be “owned” by the person claiming the exemption, and our precedents recognizing equitable-title interests must be viewed in that context. Equitable title is defined as “title that indicates a beneficial interest in property and that gives the holder the right to acquire formal legal title.” This is a rigorous definition—one that requires not just a possibility of acquiring title, but a concrete right. The jurisdictional statute on which the court relied, s 15 V.S.A. § 751, does not establish title or ownership in either party to a divorce. Its purpose is to give the court jurisdiction over all the property of the parties. Section 751 did not give Mangini equitable title to the property. Nor do we find that the family court’s injunction give either party a right to any item of property.

The trial court should have granted Brattleboro Savings’s motion for summary judgment with respect to Mangini’s claim of a homestead exemption, and denied Mangini’s motion.

BURGESS, J., concurring. I concur with the majority’s mandate as well as its underlying reasoning, but I also concur with Judge Bent’s opinion as an alternative basis for reversing the superior court summary judgment decisions.

BENT, Supr., J., Specially Assigned, concurring. I concur with the majority’s mandate because Mangini cannot rely upon 27 V.S.A. § 141(a) to avoid an existing mortgage that merely refinanced a debt on the homestead that existed before she established the homestead. I am concerned, however, with the implication in the majority’s opinion that spouses generally may not rely upon § 141(a) to avoid the consequences of a unilateral spousal conveyance unless they can prove an equitable interest equivalent to a contractual right to marital property owned solely by the conveying spouse. I believe that a more fundamental basis for rejecting Mangini’s reliance upon § 141(a) in the present circumstances is simply that the 2008 mortgage did not increase the debt existing at the time Mangini established a homestead in the Vermont property and thus may not be deemed inoperative under § 141(a).

SCOVT allows relitigation of final decision addressing exclusive "jurisdiction" of divisions of Superior Court

Cameron v. Rollo 2014 VT 40 (25-Apr-2014)

CRAWFORD, J. This case presents a single legal issue: whether the family division has exclusive jurisdiction over the distribution of marital property acquired during a marriage that ends in annulment. First the family division ruled that "[s]ince the marriage was void at its beginning, this court does not have jurisdiction to resolve this dispute. Then the civil division held that the civil division and the small claims court lacked jurisdiction over the division of marital property. We granted permission to appeal to review the legal question of which court has jurisdiction to distribute property under the circumstances of this case. We affirm the decision of the civil division in this case that exclusive jurisdiction over the parties’ property division is conferred by statute to the family division.

This idea that a marriage annulled on grounds of bigamy is void from its inception underlies the family division's refusal in this case to divide the parties' property. But the Legislature extended the remedy of property division to the parties to an annulment when it provided for property division in all cases filed under Chapter 11 of Title 15. 15 V.S.A. § 751(a). Chapter 11 of Title 15 encompasses annulment, divorce, and legal separation.

The statutory grant of jurisdiction to the family division is exclusive. There is no "overlapping jurisdiction—matters that belong in family court may not be brought in superior court." Rogers v. Wells, 174 Vt. 492, 494, 808 A.2d 648, 650 (2002) (mem.). Section 31(1) of Title 4, recently enacted as part of the unification of the judiciary, excludes from the civil division cases that are subject to the jurisdiction of the family division. See also 4 V.S.A. § 33(4).

We have not conistently maintained this  boundary between the family and civil division in property disputes. Compare Tudhope v. Riehle, 167 Vt. 174, 178-80, 704 A.2d 765, 767-68 (1997) with Slansky v. Slansky, 150 Vt. 438, 442, 553 A.2d 152, 154 (1988), The boundary, however, is clear when the issue is whether marital property belongs to one spouse or the other.  By holding that the family division has exclusive jurisdiction over the division of marital property, we seek to discourage overlapping cases in both courts.

DOOLEY, J., dissenting. To the majority this case is about subject matter jurisdiction over property disputes in annulment actions, an issue that will rarely, if ever, rise again. In my opinion, this case is really about the preclusive effect of subject matter jurisdiction determinations. The issue the majority chooses to address is legitimate, but the issues it largely ignores are critical and command a different result. Thus, I dissent.

Reducing the case to its essentials, plaintiff alleges that the person to whom he thought he was married  stole his property while he was incarcerated. This is a conversion action with respect to property owned by plaintiff and possessed at one time by defendant but not in either's possession at the time of the annulment. I consider it debatable whether the conversion action is exclusively within the jurisdiction of the family division. See LaPlume v. Lavallee, 2004 VT 78, ¶¶ 8-9, 177 Vt. 526, 858 A.2d 255 (holding that plaintiff's claim for money damages against former partner for retention of property was conversion claim subject to jurisdiction of small claims court).  But we need not, and should not, reach that question

We made a great stride forward in ensuring finality of judgments against lack-of-subject-matter-jurisdiction claims where the question of subject matter jurisdiction has already been litigated by adopting the Restatement (Second) of Judgments § 12 (1982). See Quinn v. Schipper, 2006 VT 51, ¶ 8, 180 Vt. 572, 908 A.2d 413 (mem.). Under § 12  a judgment generally precludes relitigation of subject matter jurisdiction in subsequent litigation. Restatement (Second) of Judgments § 12 (1982)(indicating a party is foreclosed from litigating subject matter jurisdiction in a subsequent lawsuit unless the decision on jurisdiction was "a manifest abuse of authority," the judgment at issue "would substantially infringe the authority of another tribunal," or the rendering court was incapable of making an adequately informed assessment of its own jurisdiction and procedural fairness would require the party seeking to avoid the judgment to have the opportunity to belatedly attack jurisdiction).

None of the exceptions apply. To say that the family division's ruling was "so plainly beyond the court's jurisdiction that its entertaining the action was a manifest abuse of authority" creates an exception to issue preclusion so broad as to eat up the rule and bring us back to the days of raising lack of subject matter jurisdiction over and over. The family division ruling may have been wrong, but it is not a manifest abuse of discretion, a clear usurpation of power, or a ruling without an arguable basis.  Restatement (Second) of Judgments § 12(1).

Biological rights. Where putative father’s claim is based on biology alone, Vt law constitutionally precludes a second parentage action after final judgment in first parentage action to which the putative father was not party.

Columbia v. Lawton, 2013 VT 2 (Robinson, J.)  

This case requires us to consider the constitutional rights of a putative biological father who seeks an order of parentage when a court has already issued a parentage order determining the minor child’s parents. We conclude that Vermont’s parentage statute does not authorize a court to allow a second parentage action involving a particular child brought by or against a different putative parent and that constitutional considerations do not require the court in this case to entertain the second parentage case.

In this case, even if plaintiff is the genetic parent of the minor child, he does not have constitutionally-protected parental rights. He did not seek to establish a legal tie to the minor child until more than two years after the child’s birth, and never had any significant custodial, personal, or financial relationship with the minor child despite ample opportunity to formally declare and pursue his assertion of parentage.  After the child's birth he wrote  mother from jail requesting photos of the child, but the request for pictures, without accompanying efforts to take responsibility for the child by establishing a relationship, providing nurturing, offering support, or asserting his legal rights was not enough. When he did step forward, more than two years after the child's birth, he could not claim any indicia of parenthood other than, possibly, a genetic connection. Accordingly, we affirm the trial court’s decision denying plaintiff’s motion for genetic testing and dismissing his complaint for establishment of parentage.

Family law. Revocable trust is not marital property but can be considered in dividing marital property.

Billings v. Billings, 2011 VT 116 (Dooley, J.) (Reiber, C.J., concurring and dissenting.)

Wife appeals from final judgment in this divorce proceeding, arguing that the family court abused its discretion by granting husband’s motion in limine excluding evidence of any revocable trusts or wills under which he may be a beneficiary.  We reverse and remand.

We agree with husband that any interest he has as beneficiary under a will or revocable trust is not marital property if the testator or settlor is still alive.  Under 15 V.S.A. § 751(a), “[a]ll property owned by either or both of the parties, however and whenever acquired, shall be subject to the jurisdiction of the court.  Title to the property, whether in the names of the husband, the wife, both parties, or a nominee, shall be immaterial . . . .”  Although we have not addressed the issue, the near unanimous holdings around the country are that a beneficiary’s interest under a will is only an expectancy that is not subject to the jurisdiction of the family court.  Thus the family court determined correctly that any revocable trusts or wills under which husband may be a beneficiary are not marital property to be distributed by the court.

We agree, however, with wife that such a beneficial interest can be considered in allocating marital property between the parties if it creates an “opportunity . . . for future acquisition of capital assets and income” under 15 V.S.A. § 751(b)(8). We conclude that consideration of likely receipt of future inheritances and trust assets or proceeds may be considered under § 751(b)(8).  The fact that the beneficiary interest is merely an expectancy during the life of the testator or settlor prevents that interest from being marital property but does not prevent it from being considered under § 751(b)(8).  Indeed, because a property distribution cannot be modified where a change of circumstances occurs, it is necessary to have a grasp of predicted future circumstances to bring about a fair result.  Depending upon the circumstances, the court can find that future receipt is likely—that is, it creates a real opportunity to acquire assets in the future.  We conclude that the family court improperly granted the motion in limine that preemptively excluded evidence about the extent of husband’s potential interest in revocable trusts and wills.

Reiber, C.J., concurring and dissenting, agrees with the majority’s holding that a beneficial interest in a revocable trust is a mere “expectancy” that must be excluded from the marital estate, but disagrees with its corollary holding that such an “expectancy” may be considered in dividing the marital property.   It is precisely the permanent nature of a property award that dictates against the consideration of such inherently speculative interests as revocable trusts, which turn entirely on circumstances beyond the party’s control and may never eventuate. To predicate a division of marital property upon an interest “revocable at the will of the settlor, at any time and for any reason,” is no more fair or reasonable than attempting to apportion that interest. 

Family law. Guardian lacks standing to initiate a divorce proceeding.

Samis v. Samis, 2011 VT 21 (Johnson, J.)

Husband appeals the decisions of the Orleans Family Court granting divorce, distributing property, and awarding spousal maintenance after wife’s guardian filed for divorce on her behalf.  Husband argues the trial court erred in denying his motion to dismiss wife’s divorce action because her guardian lacks standing to initiate a divorce proceeding on her behalf..  We agree with husband that the lower court erred in its denial of his motion to dismiss.  Accordingly, we reverse.

A century and a half ago, we held that “the right to bring [a divorce] petition is strictly personal.”  Richardson v. Richardson, 50 Vt. 119, 121-22 (1877) (holding that because right to bring divorce petition is strictly personal, person under only financial guardianship can bring petition in own name).  We have not revisited this particular issue in modern times.

Like the majority of jurisdictions around the country, we continue to conclude that the right to end a marriage through divorce is volitional and personal such that the Legislature did not intend, through a general grant of authority, to permit it to be carried out by a guardian.   Without specific authority in 14 V.S.A. § 3069(c)(6), therefore, guardian was without power to file a divorce on wife’s behalf.