Editor’s note: This piece is by Nicole Killoran is from the Supreme Court of Vermont Law Blog.
As Hollywood teaches us, a night of unhindered drinking and debauchery can set off a chain of events that haunts us for days or even years afterward. Sometimes obtaining a divorce decree is the same way.
Today’s case involves an ambiguous promise made 37 years ago in a separation agreement, a subsequently deceased ex-husband, and a first wife suing the second for all she’s got. Call it, “The Hangover Part 3: Surprise at the Probate Court.”
But, let’s flash back to the beginning.
In 1975, after 31 years of marriage, during which she bore him nine children, wife #1 divorced husband. Shortly thereafter, husband remarried to wife #2. At the time of the divorce, husband was the president of Adolph Bauer Inc. (ABI) in Massachusetts (the dye and foil stamp people). The couple entered into a separation agreement, which governed the final divorce order. The agreement dictated that its provisions would be governed by the laws of Massachusetts. It also contained the following provision:
“If at any time while Husband is alive, he sells any or all of his stock in [ABI] . . . Husband agrees that he will include in his will and/or any trust a provision devising all his rights, title and interest in such assets …”
In 1983, wife #1 filed for contempt in Massachusetts because husband had not set up a trust to receive the proceeds of the sale of his ABI stock. The court dismissed the complaint as premature because husband was still an employee of ABI and had not sold his stock. Two years later, husband retired and cashed in his benefits from ABI. He signed a stock redemption agreement with ABI, and sold all his stock back to his employer, taking $50,000 up front and the remainder in $10,000/month payments for the next eight years.
In 2007, husband died. Like many of the savvy rich, husband left no property requiring probate to determine title. The Stowe property was in wife #2’s name, and the only other assets of the estate were joint bank accounts, which passed directly to wife #2. Wife #2 then dumped all the account funds into her own revocable trust, where the Stowe property also already resided. After husband’s death, wife #1 decided it was time to cash in on the 35-year-old separation agreement–stock option. She sued wife #2.
Shortly after retirement, husband and wife #2 used part of husband’s greater nest egg to purchase property in Stowe and build a home. They put the property in wife #2’s name. In 1992, the stock payments ended, and capital gains tax went up. Husband cried hardship, and asked wife #1 in several letters to reduce her alimony payment, referencing the stock payments from ABI. Wife #1 did not relent, and husband continued making the agreed alimony payments.
In 2003 and 2004, in a series of letters, wife #1 noted that husband was obligated to pay her the proceeds from the sale of his ABI stock, and that he “should have put it in a trust” and “lived comfortably off the interest.” Around the same time, husband made a will in which he gifted some personal items to wife #2 and $1,000 to each of his children. He directed the remainder of his assets to be put in a trust.
In 2007, husband died. Like many of the savvy rich, husband left no property requiring probate to determine title. The Stowe property was in wife #2’s name, and the only other assets of the estate were joint bank accounts, which passed directly to wife #2. Wife #2 then dumped all the account funds into her own revocable trust, where the Stowe property also already resided.
After husband’s death, wife #1 decided it was time to cash in on the 35-year-old separation agreement–stock option. She sued wife #2, claiming that wife #2 both possessed and had been unjustly enriched by the proceeds from the sale of the ABI stock, and demanding that the court establish a constructive trust as compensation.
The trial court entered a judgment in favor of wife #2 on two primary grounds and one alternate ground. First, the trial court found that wife #1 had missed her statute of limitations date for filing because she was put on notice in 1992 that the stock had been sold, and had six years from that date to bring a claim. Second, the trial court found that wife #1 had failed to explain why she waited 15 years before seeking relief in court, unreasonably delaying suit and thereby prejudicing wife #2. In the alternative, the trial court found that wife #1 could not provide a paper trail to prove that wife #2 was unjustly enriched by any of the stock sale proceeds. Wife #1 appealed on all grounds.
On appeal, the SCOV considers the issues on appeal under Massachusetts law to frame its analysis, though ultimately the choice of law matters little because the conclusion would be the same under Vermont laws.
First, the SCOV agrees with the trial court that the agreement itself was ambiguous. The plain language of husband’s agreement to devise his interests in the sale of his ABI stock leads to two equally implausible interpretations. The SCOV concludes that the term could plausibly mean that the husband was to deed his interest in the stock after the sale — which would be nothing — or he would have to devise his interest only if he sold the stock during his life. Neither makes much sense. So looking to the plain language alone does not give the SCOV any clear sense about what the parties intended.
This ambiguity led the trial court to conclude based on the evidence presented at trial that wife #1’s claim was based on husband’s failure to establish a trust in which the funds from the sale of the ABI stock could be deposited, and not on husband’s failure to actually devise the proceeds to wife #1 in his will. Without making a finding on the parties’ intent on this point, the trial court held that the statute of limitations began to run from the moment wife #1 believed husband had breached the agreement by not establishing a trust, basing its conclusion on the disputed interpretation of wife #1’s complaint.
The SCOV, however, finds it inappropriate for the court to substitute a “disputed assertion” of wife #1’s position for a finding regarding the parties’ intent. The SCOV then concludes that, based on the letters exchanged, and wife #1’s 1983 claim, Wife #1’s beef was with husband’s failure to devise the stock proceeds to her on his death, and not with his failure to set them aside in a trust as they came to him. Because the underlying separation agreement was a contract to make a specific devise at death, the statute of limitations runs from the moment of death, not from the first moment the other party is aware of the possibility of breach.
Next, the SCOV considers the trial court’s alternate holding, that wife #1 could not trace the proceeds from the sale of the stock to the Stowe home or wife #2’s trust. In order to show that wife #2 was unjustly enriched by the proceeds from the ABI stock sale, wife #1 claimed that the Stowe property was purchased and constructed in part with the proceeds, and that the accounts wife #2 rolled into her own trust contained some of the proceeds. The remedy for such unjust enrichment is the establishment of a constructive trust — for those unfamiliar with this term, it is an odd, equitable beast of legal creation that disallows the trustee (wife #2) from enjoying any beneficial interest in the property held in trust.
The problem for wife #1 is that she bore the burden of proving the path of the stock sale proceeds to the Stowe property and wife #2’s trusts. Wife #1 did not have any evidence to dispute wife #2’s claims that none of the proceeds went toward purchasing the property, though some may have gone toward paying off the mortgage. Nor did wife #1 have any evidence of how much of the proceeds went toward the property. Thus, the SCOV finds that wife #1 did not meet her burden, and the trial court appropriately denied her a constructive trust for the stock sale proceeds that went toward the Stowe property.
With regards to wife #2’s trust, the SCOV reaches a similar conclusion. There is no paper trail indicating how the joint accounts wife #2 transferred to her trust were funded, and there is no evidence that husband otherwise intentionally left his estate unfunded to avoid payment to wife #1. All wife #1 can offer in the way of proof is the likelihood that some of the funds that went into wife #2’s trust came from the stock proceeds. But, the SCOV notes in a footnote, the burden for a constructive trust is clear and convincing evidence, and the trial court correctly concluded that wife #1 did not meet her burden here either. Wife #1 is therefore also denied a constructive trust for the proceeds that went to wife #2’s trusts.
For future divorcees wishing to cash in on their ex-spouse’s death at the expense of a surviving spouse’s inheritance, today’s case teaches us two lessons: avoid bringing a lawsuit when 40 years have eroded the evidence supporting your claim, and make sure your separation agreement is clear enough for a fifth-grader to interpret.