Gerald R. Theberge v. Mary Ann R. Theberge, 228 A.3d 998

Background

Parties divorced in 2000; the divorce decree required plaintiff to pay spousal maintenance to defendant with an annual COLA tied to a regional cost-of-living index.
After the divorce the parties orally agreed (not in writing) to share their children’s college tuition (plaintiff 75%, defendant 25%); that agreement was performed for the eldest child.
Plaintiff failed to apply COLA increases for two to three years; when the youngest entered college defendant objected and sent a note mentioning both the unpaid COLAs and tuition balance.
Plaintiff brought maintenance current (including past COLAs) and then—according to plaintiff—parties reached an oral compromise: defendant would be relieved of her tuition share and plaintiff would stop applying future COLAs; thereafter plaintiff paid maintenance without COLAs for about ten years.
Defendant (now incapacitated; suit brought by her representative) later moved to enforce the COLA provision and collect arrears; the family court found two enforceable oral contracts and that defendant had waived the COLAs by agreement and performance, and denied enforcement.
The Supreme Court reversed and remanded: it held the initial tuition-sharing agreement was enforceable (mutual promises supplied consideration), rejected the claim that waiver of a compensatory maintenance COLA is per se void on public-policy grounds, but found a clearly erroneous factual finding (the court misread defendant’s note) and remanded for corrected findings and clarification about the basis for any waiver by performance.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Was the oral tuition-sharing agreement a binding contract (consideration)?	The parties exchanged mutual promises (75%/25%) so there was consideration.	Parents have no legal obligation to pay post‑minority college tuition, so promise benefits third parties and lacks consideration.	Held: Mutual promises sufficed; the tuition agreement was an enforceable contract.
2) Did the parties form an enforceable oral agreement waiving the COLA?	Plaintiff says yes—parties agreed orally to trade defendant’s tuition obligation for plaintiff’s waiver of COLAs; defendant accepted payments without COLA for years.	Defendant denies such an agreement; also argues higher standards for changing compensatory maintenance or lack of assent/consideration.	Held: Court may enforce an oral waiver if proven, but appellate court remanded because a key factual finding supporting the modification was clearly erroneous; trial court must re-evaluate and clarify whether waiver was by agreement or by other means.
3) Is a waiver of a compensatory component of permanent spousal maintenance void as against public policy?	Plaintiff: parties are free to contract; waiver should be allowed.	Defendant: Compensatory maintenance is like child support and cannot be waived as a matter of public policy.	Held: Not analogous to child support; freedom of contract controls—such a waiver is not per se void on public-policy grounds.
4) Does defendant’s long delay in enforcing COLAs operate as waiver or bar (laches)?	Plaintiff contends defendant waived rights by accepting payments without COLA for ~10 years and delayed enforcement.	Defendant argues delay alone is not waiver; she could seek arrears while the order remained in force.	Held: Delay alone does not establish waiver; the family court must clarify whether any relinquishment was voluntary and intentional (waiver) or the result of an enforceable oral bargain; remanded for clarification.

Key Cases Cited

Zink v. Zink, 147 A.3d 75 (Vt. 2016) (parties may contract to alter or affect court-ordered maintenance outside of judicial modification).
Weaver v. Weaver, 171 A.3d 374 (Vt. 2017) (distinguishes compensatory component of permanent maintenance and explains modification standards and allocation issues).
Kanaan v. Kanaan, 659 A.2d 128 (Vt. 1995) (waiver requires voluntary and intentional relinquishment of a known right; delay alone insufficient).
Lloyd’s Credit Corp. v. Marlin Mgmt. Servs., Inc., 614 A.2d 812 (Vt. 1992) (consideration exists if promisor receives something desired; adequacy not for court to evaluate).
H.P. Hood & Sons v. Heins, 505 A.2d 561 (Vt. 1986) (mutual promises furnish sufficient consideration for each other).
Milligan v. Milligan, 613 A.2d 1281 (Vt. 1992) (family courts cannot order postsecondary education payments absent party agreement).
Bergeron v. Boyle, 838 A.2d 918 (Vt. 2003) (existence of sufficient consideration is a question of law).