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Damone v. Damone9/14/2001
.2d at 435-36. The challenger to a property distribution agreement has the burden of showing "fraud, unconscionable advantage, impossibility of performance, hampering circumstances beyond the expectations of the parties, collusion, or duress." Id. at 198, 576 A.2d at 436 (citing Burr v. Burr, 148 Vt. 207, 209, 531 A.2d 915, 917 (1987)). Even in the context of determining parental rights and responsibilities, an agreement between the parents will not be lightly overturned by the court. Agreements regarding parental rights and responsibilities are presumptively in the best interests of the child, and such agreements may be disregarded only when the court finds that the agreement is not in the best interests of the child or that it was involuntarily entered into. 15 V.S.A. ยง 666(c); Harris v. Harris, 149 Vt. 410, 420, 546 A.2d 208, 215 (1988) .
We have also held that "although a court is not bound by an agreement of the parties relative to custody, it must give notice to the parties of its rejection of an agreement so that they may make a meaningful evidentiary presentation on this issue." Plante v. Plante, 148 Vt. 234, 236, 531 A.2d 926, 927 (1987) (internal citation omitted); see also Harris, 149 Vt. at 420, 546 A.2d. at 215. Similarly, we have on prior occasion ordered stricken from a final divorce order a maintenance provision which the presiding judge included in the order, contrary to the stipulation of the parties. See Hopkins v. Hopkins, 130 Vt. 475, 478-79, 296 A.2d 266, 269 (1972). We ordered the offending provision stricken from the final order because the judge failed to sufficiently indicate he would deviate from the stipulation or what his final order would be if he deviated from the stipulation. Id. We now hold that the same notice requirement which applies to a court's deviation from a custody agreement adheres to a court's rejection of property distribution agreements entered into between parties to a divorce.
The importance of this holding is clear in light of the case at bar. At trial, neither party attempted in any way to overturn the agreement. Rather, both parties testified that they wanted the terms of the agreement to control distribution of the settlement proceeds, and the court to enforce that agreement. The court itself acknowledged the existence of the agreement, and, on two occasions during exchanges with counsel on the issue of enforcement of the agreement, stated that it was not going to deviate from the agreement. Nor was there any indication provided by the court that the agreement was somehow defective or otherwise to be regarded as without effect. Yet in its decision it disregarded the agreement, stating that "the parties' agreement did not specify that the contemplated division would necessarily override other considerations relevant to an 'equitable division' of property."
Our prior decisions regarding the contractual nature of such agreements have not required that such an explicit specification is necessary for the integrity of the agreement to be given effect by the court. There was no evidence presented challenging the parties' intent for the agreement to have effect, and their desire for the agreement to control was clearly evident from their testimony. Such agreements control the disposition of the property they address, unless a challenger successfully defeats the agreement as outlined above. Since the court failed to adhere to an unchallenged property distribution agreement, and failed to timely notify the parties of its intent to do so, the court's distribution of the settlement proceeds contrary to the parties' agreement was an abuse of discretion. Accordingly, we reverse the court's property distribution and remand for redistribution of the
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