Scott Traudt v. Victoria Traudt

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court,
109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may
be made before this opinion goes to press.

2022 VT 58

No. 21-AP-200

Scott Traudt Supreme Court

On Appeal from
v. Superior Court, Orange Unit,
Family Division

Victoria Traudt February Term, 2022

Thomas A. Zonay, J.

Stacey Adamski of Adamski Law, PLLC, Castleton, for Plaintiff-Appellant.

Todd C. Steadman of Davis Steadman Percy & Sluka, LLC, White River Junction, for
Defendant-Appellee.

PRESENT: Reiber, C.J., Carroll and Cohen, JJ., and Grearson and Morris, Supr. JJ. (Ret.),
Specially Assigned

¶ 1. COHEN, J. Plaintiff Scott Traudt appeals the family division’s order granting

defendant Victoria Traudt’s motion to enforce a provision in the parties’ 2010 divorce order that

required plaintiff to refinance the mortgage on the marital home and pay defendant $25,000.

Plaintiff argues that defendant is barred from enforcing the judgment by the eight-year statute of

limitations for actions on judgments set forth in 12 V.S.A. § 506. The family division found that

the statute of limitations did not apply because plaintiff had acknowledged the debt within the

limitations period. We affirm.
¶ 2. The family division made the following findings in its order. Plaintiff and

defendant divorced in September 2010. As part of the stipulated final divorce order, plaintiff

was awarded the marital home in Strafford, Vermont. The order contained the following

provision: “[Plaintiff] shall have one year from Sept. 1, 2010 to refinance the marital residence to

have [defendant]’s name removed from the mortgage and to pay [defendant] $25,000.00 for her

interest in the property.” The order stated that if plaintiff did not comply, defendant was

awarded the house and would have three years to refinance and pay plaintiff $25,000. Plaintiff

failed to refinance the home or pay defendant by the required date.

¶ 3. In March 2012, the parties agreed to amend the final divorce order to give

plaintiff until September 1, 2012, to refinance and pay defendant the required amount. Their

stipulation was entered as an order of the court. Plaintiff did not refinance or pay defendant.

¶ 4. On March 10, 2015, the parties executed an agreement to extend and modify the

amended order. The agreement allowed defendant to claim the parties’ daughter as a dependent

on her tax returns to compensate her for having paid off a 2006 tax debt owed by plaintiff. The

agreement also stated that defendant “agrees to extend the required $25,000 as compensation for

her interest in the [marital] property . . . until October 31, 2016.” Plaintiff drafted the agreement

and signed it. He provided it to defendant and she signed it and returned it to him. The parties

intended to file the agreement with the court, but never did so. Plaintiff never refinanced or paid

defendant as required, and defendant did not attempt to take possession of the home.

¶ 5. In June 2020, plaintiff moved to enforce the property settlement in the final

divorce order. He asserted that he had been approved for refinancing to remove defendant’s

name from the mortgage but that defendant refused to sign over her interest in the home unless

he paid $25,000 at the time of the refinancing. He argued that nothing in the order required him

to pay that amount at or before the time of refinancing, and that he no longer owed defendant

$25,000 because he had paid her “thousands of dollars” since 2010. He asked the family

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division to order defendant to sign over the property to him and to determine what he still owed

defendant.

¶ 6. Defendant responded with her own motion to enforce the property settlement.

She argued that the amounts plaintiff paid her were for their daughter’s benefit and were not

intended to satisfy his obligation under the property settlement. Defendant stated that she had

refused to sign off on plaintiff’s recent refinancing attempt because he would not provide her

with the loan application, payoff amount, or settlement statement. She asked the court to deny

plaintiff’s claims for relief and enforce the decree by awarding possession of the home to her.1

¶ 7. Plaintiff moved to dismiss defendant’s motion to enforce the property settlement,

arguing that it had been more than eight years since the final divorce order and therefore

defendant was barred from enforcing the judgment under 12 V.S.A. § 506. He asserted that the

home was now his sole property. Defendant argued in opposition that the parties had modified

the original order twice, extending the time for plaintiff to refinance and pay defendant until

2012 and then 2016, and plaintiff had filed her motion to enforce within eight years of the latter

date. Defendant further argued that the limitations period had been tolled because plaintiff had

acknowledged the debt.

¶ 8. Following a hearing at which both parties testified, the court issued a written

order granting defendant’s motion to enforce the property settlement.2 The court concluded that

the 2010 divorce order operated as a debt on judgment and that the 2012 and 2015 agreements

did not operate to renew the final order. The statute of limitations for enforcing the final order

1
Defendant altered her request for relief at the hearing, asking instead for the court to
order plaintiff to refinance and pay her the $25,000, and if he failed to do so, for the home to be
sold and the proceeds divided in accordance with the final divorce order.
2
At the beginning of the hearing, plaintiff indicated that he was withdrawing his original
motion to enforce because he was able to secure approval for refinancing without defendant’s
permission. The hearing and order therefore were focused on defendant’s motion to enforce the
property settlement.
3
therefore expired in September 2018, well before defendant filed her motion to enforce.

However, the court determined that plaintiff had acknowledged the debt in the 2012 amended

order and the 2015 agreement signed by the parties, and by repeatedly attempting to refinance

and offering to defendant to resolve the dispute. The court concluded that plaintiff’s

acknowledgment of the debt within the limitations period removed the statutory bar. It

accordingly ordered plaintiff to complete refinancing to remove defendant’s name from the

mortgage and to pay defendant $25,000 by December 31, 2021. If plaintiff failed to comply, the

home was to be sold and the proceeds divided in accordance with the 2010 order. Plaintiff

appealed.

¶ 9. On appeal, plaintiff asserts that the property provisions in the 2010 divorce order

are no longer enforceable because defendant did not renew the judgment within eight years.

According to plaintiff, neither the 2012 stipulation nor the 2015 agreement operated as a “new

promise” acknowledging the debt, and plaintiff’s other actions during the limitations period did

not constitute acknowledgments because they were not made in a signed writing. Finally, he

contends that the court impermissibly modified the property settlement by ordering the parties to

sell the home and split the proceeds if plaintiff did not pay defendant by the end of 2021. We

conclude that none of these arguments have merit and therefore affirm.

¶ 10. Whether defendant’s attempt to enforce the 2010 divorce order was barred by the

statute of limitations is a question of law that we review without deference to the family division.

See Blake v. Petrie, 2020 VT 92, ¶ 7, 213 Vt. 347, 245 A.3d 768 (stating that this Court’s review

of whether motion to enforce property-division order was barred by 12 V.S.A. § 506 was

“nondeferential and plenary”).

¶ 11. Vermont has an eight-year statute of limitations for actions on judgments. 12

V.S.A. § 506 (“Actions on judgments and actions for the renewal or revival of judgments shall

be brought by filing a new and independent action on the judgment within eight years after the

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rendition of the judgment, and not after.”). A judgment ordinarily cannot be enforced after eight

years unless it is renewed by filing “a new and independent suit” in the civil division. Nelson v.

Russo, 2008 VT 66, ¶ 6, 184 Vt. 550, 956 A.2d 1117. In general, “[t]he failure to timely renew a

judgment time-bars an action seeking collection on the judgment.” Blake, 2020 VT 92, ¶ 8. We

have held that the statute of limitations and the renewal requirement set forth in 12 V.S.A. § 506

apply to property-settlement judgments issued by the family division. Id. ¶¶ 21-23.

¶ 12. Here, the family division properly concluded that the judgment that caused the

statute of limitations to begin running in this case was the 2010 final divorce order, because “[i]t

was this order that ended the litigation between the parties and finally disposed of the subject

matter before the court.” Ayer v. Hemingway, 2013 VT 37, ¶ 18, 193 Vt. 610, 73 A.3d 673.

The court also held, consistent with our law, that neither the 2012 order nor the 2015 agreement

operated to renew the 2010 judgment, as neither resulted from a new and independent civil

action. See id. ¶ 16 (holding that motion for possessory writ of attachment did not renew

judgment); Flex-A-Seal, Inc. v. Safford, 2015 VT 40, ¶ 14, 198 Vt. 496, 117 A.3d 823 (holding

that stipulated court order setting forth outstanding amount due and dictating payment terms did

not renew judgment). If these were the only relevant facts, defendant would be precluded from

recovery.

¶ 13. However, it has long been the law in Vermont that “in actions of debt on

judgment, an acknowledgment of the debt within the statute-of-limitations period remove[s] the

statutory bar.” Flex-A-Seal, Inc., 2015 VT 40, ¶ 17 (citing Gailer v. Grinnell, 2 Aik. 349, 354,

(Vt. 1828)); see also Olcott v. Scales, 3 Vt. 173, 178 (1831). This rule derives from contract law

and is based on the principle that “a presumption arises from the lapse of time that the debt has

been paid; but, when this presumption is rebutted by an acknowledgment of the debt within six

years, the contract is not within the intent of the statute.” Gailer, 2 Aik. at 352. In the context of

a judgment debt, an acknowledgment “revives the debt ab initio, and the plaintiff recovers, not

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on the ground of having a new right of action, but that the statute, by reason of the

acknowledgment, does not apply to bar the old one.” Id. at 354.

¶ 14. We applied this principle in Flex-A-Seal, Inc. v. Safford. The plaintiff in that

case filed suit in 2012 to renew a 2002 judgment and the civil division dismissed the action as

time-barred under 12 V.S.A. § 506. On appeal, the plaintiff argued that a 2004 stipulated order

that stated the original judgment amount and the current amount owed with interest, and

provided for the suspension of post-judgment interest, was the controlling judgment for statute-

of-limitations purposes. We rejected this argument because the 2004 order was not a new

decision on the merits. Flex-A-Seal, Inc., 2015 VT 40, ¶ 14. However, we concluded that

defendant’s stipulation and partial payment were an acknowledgment of the debt that removed

the statutory bar, citing Gailer and Olcott. Id. ¶ 20. We therefore reversed and remanded for

further proceedings. Id. Our decision in Flex-A-Seal makes clear that there are two ways to

extend the time to collect a judgment debt: either by filing a new and independent action to

renew the judgment, or by acknowledging the debt within the limitations period.3

¶ 15. Plaintiff argues that the 2012 amended order and 2015 agreement did not

constitute valid acknowledgments because neither contained a new promise by him to pay the

debt, which he argues is required by 12 V.S.A. § 591. That provision states: “An

acknowledgment or promise shall not be held to affect a defense made under the provisions of

this chapter, unless such acknowledgment or promise is in writing signed by the party affected

3
Plaintiff correctly points out that in Nelson, Ayer, and Blake, we emphasized that a
new and independent civil action is required to renew a judgment under § 506. Each of those
cases involved attempts to renew a judgment debt by motion; in none was it alleged that the
defendant had separately acknowledged the debt. The acknowledgment rule was therefore not at
issue. We noted in Flex-A-Seal that there might be some tension between our holdings in Ayer
and Nelson on the one hand, and the common law as stated in Gailer and Olcott on the other, but
we continued to apply the common-law rule in the absence of adequate briefing on that issue.
2015 VT 40, ¶ 20. Here, plaintiff does not argue that Flex-A-Seal, Gailer, or Olcott have been or
should be overruled. We therefore will continue to apply the law set forth in those cases. Rowe
v. Brown, 157 Vt. 373, 379, 599 A.2d 333, 337 (1991) (“Issues not raised on appeal are deemed
waived.”).
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thereby.” 12 V.S.A. § 591. According to plaintiff, because each of these documents stated only

that defendant agreed to extend the deadline for payment, they did not toll the statute of

limitations.

¶ 16. Plaintiff’s arguments are not supported by our case law or the language of § 591.

We have repeatedly held that “to prevent the operation of the statute, ‘there must be an

acknowledgment of the debt as still due, with an apparent willingness to remain liable for it, or at

least without any avowed intention to the contrary.’ ” Moore v. Stevens, 33 Vt. 308, 309 (1860)

(quoting Phelps v. Stewart, 12 Vt. 256, 264 (1839)); see also Aldrich v. Morse, 28 Vt. 642, 644

(1856) (holding that acknowledgment of existing debt coupled with “an implied promise, at

least, to pay the claim, is necessary to prevent the operation of the statute”). In other words, an

acknowledgment of the existence of the debt coupled with an implied promise to pay is

sufficient. Moore, 33 Vt. at 309 (“An acknowledgment to take a debt out of the statute of

limitations must be of such a nature that a promise to pay the debt can be implied from it . . . .”).

¶ 17. Nothing in § 591 alters this longstanding rule. That provision refers to an

acknowledgment or a promise, plainly indicating that either may be used to toll the statute of

limitations. 12 V.S.A. § 591. It requires the acknowledgment or promise to be in writing and

signed by the debtor but sets forth no other criteria for determining a valid acknowledgment. Id.

Under these circumstances, the standard set forth in our case law continues to govern. See

Langle v. Kurkul, 146 Vt. 513, 516, 510 A.2d 1301, 1303 (1986) (“The common law is changed

by statute only if the statute overturns the common law in clear and unambiguous language, or if

the statute is clearly inconsistent with the common law, or the statute attempts to cover the entire

subject matter.”).

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¶ 18. The 2015 agreement, which plaintiff prepared and signed, meets this standard.4

The agreement acknowledged the debt because it admitted that plaintiff still owed defendant

$25,000 under the divorce order. The agreement extended the time for plaintiff to pay the debt,

implying that he would pay it. See Woodsville Guar. Sav. Bank v. Ricker, 85 Vt. 340, 344, 82

A. 2, 4 (1912) (holding letter from debtor asking for additional time to pay was sufficient to

remove statutory bar); 4 Williston on Contracts § 8:30 (4th ed. 2022) (explaining that “[t]he

debtor’s request for an extension of time will clearly operate as a sufficient acknowledgment”).

There was no indication in the agreement that plaintiff was unwilling to pay the debt or that he

believed he was no longer liable. See Hunter v. Kittredge’s Est., 41 Vt. 359, 368 (1868) (holding

that defendant’s promise to “settle accounts” otherwise barred by statute of limitations “when

unaccompanied by any unwillingness to pay the balance, if any, implies a promise to pay

whatever balance should, upon such settlement, be found due”). Under these circumstances, the

2015 agreement was sufficient to toll the statute of limitations. See Flex-A-Seal, 2015 VT 40,

¶ 20 (holding stipulation that stated original judgment amount and current amount owed with

interest, and provided for suspension of post-judgment interest, was acknowledgment of debt that

removed statutory bar). We are unconvinced by plaintiff’s contention that the 2015 agreement

cannot serve as an acknowledgment because it was titled as an agreement to “extend and

modify” the 2012 amended order. The title of the document does not alter the fact that it was

4
We have not addressed the question of whether an acknowledgment of a judgment debt
permanently removes the effect of the statute of limitations or simply resets the limitations
period. In contract law, from which the acknowledgment rule derives, an acknowledgment of
debt starts the limitations period running anew. See 31 Williston on Contracts § 79:76 (4th ed.
2022); see also Gailer, 2 Aik. at 353 (holding that rule in contract actions that acknowledgment
of debt removes statutory bar applies to judgment debts). Assuming the same rule applies to
judgment debts, the 2012 amended order would not permit defendant to recover even if it were a
valid acknowledgment because she filed her motion to enforce more than eight years after it was
entered. We need not resolve this question here because we conclude that the 2015 agreement,
which was executed within the limitations period and less than eight years before defendant filed
her motion to enforce, was an acknowledgment sufficient to suspend operation of the statute.
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substantively an acknowledgment of the debt. See id. (holding defendant’s stipulation to amount

of debt owed operated as acknowledgment that tolled § 506).

¶ 19. Plaintiff further argues that the family division erred in finding that his other

actions constituted acknowledgments sufficient to toll the statute because they were not made in

a signed writing. We agree that under the plain terms of 12 V.S.A. § 591, an acknowledgment

must be in writing and signed by the debtor, and therefore that plaintiff’s verbal statements and

offers could not serve as a defense to the statute of limitations. However, the error does not

require reversal because the 2015 agreement was sufficient by itself to support the court’s

conclusion that the statute did not bar defendant’s enforcement of the judgment. See Lasek v.

Vermont Vapor, Inc., 2014 VT 33, ¶ 24, 196 Vt. 243, 95 A.3d 447 (declining to reverse based on

error that did not affect outcome of case); V.R.C.P. 61 (stating harmless error does not require

reversal).

¶ 20. Finally, we address plaintiff’s claim that the family division improperly modified

the 2010 divorce order by ordering the parties to sell the marital home and divide the proceeds if

plaintiff did not refinance and pay defendant $25,000 by December 31, 2021. We agree that the

family division “cannot modify the property disposition aspects of a divorce decree absent

circumstances, such as fraud or coercion, that would warrant relief from a judgment generally.”

Boisselle v. Boisselle, 162 Vt. 240, 242, 648 A.2d 388, 389 (1994). However, the court may

issue supplementary orders to enforce the terms of the original property settlement. Horgan v.

Horgan, 2021 VT 84, ¶ 12, __ Vt. __, 267 A.3d 677. We view the family division’s order in this

case as an enforcement rather than a modification. The 2010 divorce order provided that if

plaintiff did not refinance and pay defendant by the date specified, defendant would receive the

home, in which case she would have three years to refinance and pay plaintiff $25,000. If she

was unable to do so, the home would be immediately placed on the market and the parties would

“share the profits and cost of the sale.” While the court’s order skipped over the interim

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provision giving possession of the home to defendant, defendant did not seek possession, instead

stating at the motion hearing that she wanted the house to be sold if plaintiff did not pay her.

Under these circumstances, it was reasonable for the court to simply enforce the provision that

expressly provided for the home to be sold. The order did not modify the 2010 property

settlement and we therefore see no basis to reverse.5 See Sumner v. Sumner, 2004 VT 45, ¶ 13,

176 Vt. 452, 852 A.2d 611 (holding that court’s supplementary order ordering husband to

execute quitclaim deed to wife enforced provision of divorce decree awarding house to wife and

was not modification of decree).

Affirmed.

FOR THE COURT:

Associate Justice

5
Plaintiff appears to suggest that if he is dispossessed of the home, the final divorce
decree requires defendant to pay him the costs associated with maintaining the residence for the
past ten years while he was living there. Nothing in the final order supports this claim; the order
is clear that defendant would be responsible for these costs only if she took possession.
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