Burlington 802.864.0217       Middlebury 802.388.6356 Payments


Injunction and Attorneys’ Fees Order Allowed Against Deceased Ex-Husband’s Estate

In Simendinger v. Simendinger, 2015 VT 118 (September 18, 2015), the Vermont Supreme Court upheld an injunction and attorneys’ fees award in a wife’s action to enforce the divorce agreement against her ex-husband’s estate.

Issue: Wife filed a motion for contempt and enforcement of the final divorce agreement due to ex-husband’s failure to secure or pay $2.2 million of the property settlement. After the decree nisi period, but before the ruling on the motion, ex-husband passed away. The family court then issued an order, denying the motion for contempt, granting an injunction that prohibited his estate from disposing of or encumbering any real property, and awarding wife her attorneys’ fees. Husband’s estate appealed regarding the availability and scope of the injunction and the award of attorneys’ fees absent a hearing.

Holding: The Court upheld the denial of contempt, since a deceased party cannot be held in contempt. It also affirmed the family court’s equitable power to grant wife’s motion for enforcement, even after husband died. It held the family court had sufficient factual basis upon which to issue the injunction. Furthermore, it held that the injunction was not overbroad since it was limited to real property held by the estate that could be used to satisfy the security required in the divorce order. The Court also upheld the award of attorneys’ fees, holding that the family court was required to consider the financial ability to pay, but that it was not required to hold a separate hearing on that issue since it already had a general understanding of the parties’ financial conditions. In reaching this decision, the Court emphasized that the award of fees is an equitable issue, not just a question of ability to pay.

Leave a Reply