Grimes v. Grimes

 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, 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.


                                 No. 92-016


 Beverly Grimes                               Supreme Court

                                              On Appeal from
      v.                                      Windsor Family Court

 Keith Grimes                                 September Term, 1992


 Amy M. Davenport, J.

 P. Scott McGee of Hershenson, Carter, Scott, McGee & Gray, Norwich, for
   plaintiff-appellant

 Tavian Mayer and Christopher C. Cassidy, Law Clerk (On the Brief), South
   Royalton, for defendant-appellee


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      DOOLEY, J.   Plaintiff Beverly Grimes appeals from the Windsor Family
 Court decision granting the motion of defendant Keith Grimes to modify
 child support payments.  She also claims the court erred in striking a
 provision from a stipulation between the parties, incorporated into a 1987
 court order, that waived the application of 15 V.S.A. { 660(b) with respect
 to future modifications of child support.  We affirm.
      Plaintiff and defendant were divorced on June 3, 1985.  Defendant was
 ordered to pay child support for the two minor children in the amount of
 $225 per week, to be increased annually by 5% to reflect increases in the
 cost of living.  Payment disputes arose, leading to a contempt motion by
 plaintiff and a request to reduce the child support amount by defendant.  On
 November 11, 1987, in settlement of the disputes, the parties entered into a
 stipulation with the following terms:  (1) defendant acknowledged that under
 the previous order, with its cost-of-living-increase provision, he owed $260
 per week in child support; (2) the parties agreed to recharacterize the
 obligation as $175 per week in child support and $75 per week in
 maintenance; (3) both of these amounts would be increased by 5% annually;
 (4) the accrued arrearage would be paid according to a specified schedule;
 and (5) both parties waived and released any future right to modification of
 the child support and maintenance award under 15 V.S.A. { 660(b).
      The statute, 15 V.S.A. { 660(b), had become effective on April 1, 1987,
 and provided that any child support amount which deviated by more than 15%
 from the amount calculated under the applicable child support guidelines
 "shall be considered a real, substantial and unanticipated change of
 circumstances." (FN1) The presence of a real, substantial and unanticipated
 change of circumstances is grounds for modification of a child support
 order.  15 V.S.A. { 660(a).  On December 11, 1987, the Windsor Superior
 Court entered a judgment order, incorporating the terms of the stipulation.
 Based on the incomes of the parties, the child support amount defendant
 agreed to pay was more than 10% in excess of that calculated under the
 applicable child support guideline. (FN2)
      Payment disputes arose again, and in November of 1990 plaintiff again
 moved for contempt, alleging that defendant was more than $3000 in arrears
 and had unilaterally lowered his payments to $150 per week.  In February
 1991, defendant again responded with a motion to modify, alleging that
 reductions in his income constituted sufficiently changed circumstances to
 justify the reduction.  These motions were heard on October 1, 1991.  On
 November 15, 1991, the Windsor Family Court issued an order reducing the
 child support award to $155 per week and the maintenance award to $45 per
 week, both amendments retroactive to February 1991.  The court also
 established an arrearage amount, set a schedule for its payment, ordered
 that any further modifications would be based on the child support
 guidelines, and established a civil penalty for tardy payment.  The court
 also struck from the order the provision prohibiting modification based on
 15 V.S.A. { 660(b).  It relied, however, on the reduction in defendant's
 income and the increase in plaintiff's income as grounds for modification,
 not the deviation from the guidelines recognized by { 660(b).
      On appeal, plaintiff raises four issues:  (1) the changes in the
 incomes of the parties did not amount to a real, substantial and
 unanticipated change in circumstances warranting modification of the child
 support amount; (2) the agreement that 15 V.S.A. { 660(b) cannot be used as
 grounds for modification is valid and should not have been struck; (3) the
 decision to modify the 1987 order was an abuse of discretion, particularly
 because the recharacterization of part of the payment as maintenance was
 continued; and (4) the court erred in failing to award plaintiff all of her
 legal fees.
      We begin with the second issue because we find it to be determinative
 of the first.  That is, if 15 V.S.A. { 660(b) applies to this proceeding, it
 is undisputed that it would provide the change of circumstances needed for
 modification of the award.  Thus, if the section applies, we do not have to
 decide whether the findings with respect to the incomes of the parties were
 sufficient to allow the court to conclude that changed circumstances were
 present. (FN3)
      The child support guidelines were adopted to ensure adequate child
 support orders, eliminate discrepancies in awards between children in
 similar circumstances and increase the efficiency of child support
 adjudication.  See Ainsworth v. Ainsworth, 154 Vt. 103, 106, 574 A.2d 772,
 774-75 (1990).  They are embodied in tables, promulgated by the Secretary of
 Human Services, reflecting the percentage of the combined parental income
 that should be spent on the children and an allocation between the parents
 for the payment of that amount.  15 V.S.A. {{ 654, 656.  Consistent with the
 purposes of the guidelines, the Legislature has required the court to review
 any parental agreement on child support for adequacy in relation to the
 guidelines.  15 V.S.A. { 655.  As noted above, the Legislature has
 authorized modification of child support orders where there is a "real,
 substantial and unanticipated change of circumstances," including where the
 child support amount varies more than 10% from that calculated under the
 guidelines.  15 V.S.A. {{ 660(a), (b).  The power to modify an order exists
 "whether or not the order is based upon a stipulation or agreement."  15
 V.S.A. { 660(a).  The statutes do not specify, however, whether a parental
 waiver of the right to seek modification pursuant to the statutory standards
 is effective.
      Because the children are the real beneficiaries of child support, the
 court must protect their interest.  Therefore, we have consistently
 recognized the authority of the court to override the terms of child support
 agreements.  See Frink v. Frink, 128 Vt. 531, 534, 266 A.2d 820, 822 (1970)
 (divorce stipulation); Padova v. Padova, 123 Vt. 125, 129, 183 A.2d 227, 230
 (1962) (antenuptial agreement).  We have also recognized that the court's
 power over child support orders continues through the minority of the
 children because
         the court embodies the public's paramount interest in
         the care and maintenance of these children, its
         jurisdiction is of necessity continuing until they
         reach the age of majority, and its decree, in so far as
         it touches the children's welfare, is subject to
         modification.

 White v. White, 141 Vt. 499, 503, 450 A.2d 1108, 1110 (1982).  The parties
 cannot withdraw this jurisdiction by agreement.  Id.; see also Bradley v.
 Bradley, 154 Vt. 304, 305, 575 A.2d 190, 191 (1990) (law permits
 modification of child support regardless of motivation of parties in setting
 original amount).  Finally, we have been unwilling to find a parent's
 inaction to be a waiver of a child's support rights.  Lyon v. Lyon, 143 Vt.
 458, 462, 466 A.2d 1186, 1189 (1983).
      Although we have not directly addressed the enforceability of parental
 agreements prohibiting or limiting the power of the court to modify child
 support in the future, other courts have found such agreements invalid.
 See, e.g., Lang v. Lang, 252 So. 2d 809, 812 (Fla. Dist. Ct. App. 1971); In
 re Support of Burks, 100 Ill. App. 3d 700, 703, 427 N.E.2d 353, 356 (1981);
 Phillips v. Phillips, 163 Kan. 710, 712, 186 P.2d 102, 103 (1947);  Leonard
 v. Lane, 821 S.W.2d 275, 278 (Tex. Ct. App. 1991); In re Marriage of
 Studebaker, 36 Wash. App. 815, 817, 677 P.2d 789, 791 (1984).  The closest
 precedent is In re Marriage of Miller, 790 P.2d 890, 892-93 (Colo. App.
 1990), decided in the state with the child support guidelines most similar
 to ours.  See Ainsworth v. Ainsworth, 154 Vt. at 111, 574 A.2d  at 777
 (Colorado guideline system closest to that adopted in Vermont).  In
 refusing to enforce an agreement in which the father was awarded child
 custody on condition that he never seek child support from the mother, the
 court reasoned that "[s]tatutory provisions may not be modified by agreement
 of the parties if doing so would violate a public policy expressed in the
 statute or would affect the rights of the child which the statute was
 designed to protect."  Marriage of Miller, 790 P.2d  at 892.  It held that
 the child support guidelines were mandatory, and the agreement could not
 "preclude or limit the court's authority concerning child support."  Id. at
 892-93.
      The cases from other states are consistent with our precedents and
 child support statutes.  Although the agreement between the parents
 represented consideration of their interests, it could not conclude the
 interests of the children.  See White v. White, 141 Vt. at 503, 450 A.2d  at
 1110.  Nor could it take away the court's continuing jurisdiction over
 child support.  Id.  The guideline system is intended to promote uniform
 awards that fairly reflect the needs of the children and to this end
 requires court oversight of child support agreements.  We would undercut the
 statutory policy if we recognized a stipulation that would require us to
 ignore the extent of deviation from the guidelines.
      We must consider, however, plaintiff's argument that the considerations
 discussed above do not apply in a case where the noncustodial parent is
 attempting to reduce his child support obligation.  In plaintiff's view, the
 interests of the children demand that we not allow modification to reduce
 defendant's child support obligation.  Although the argument has some
 superficial appeal, we cannot accept it.
      In enacting 15 V.S.A. { 660(b), the Legislature did not distinguish
 between downward and upward modifications of child support orders.  The
 policy of uniformity of awards controls in either case.  Moreover, our
 recognition of the court's ongoing jurisdiction to modify child support
 orders, despite the agreement of the parents on an amount, arose in a case
 where the noncustodial parent sought to reduce his obligation.  See White
 v. White, 141 Vt. at 501, 450 A.2d  at 1109.  Consideration of the interests
 of the children may require a reduction in a child support obligation in
 some circumstances.
      There is a practical aspect to this issue.  A clearly excessive child
 support order may lead, as here, to collection difficulties and periodic
 returns to court.  In 1990, defendant was obligated to pay approximately 56%
 of his gross income in child support.  Once he fell behind, it was virtually
 impossible to make up the arrearage.  His income, as well as plaintiff's,
 was drained by the costs of the child support litigation.  A support amount
 that, on paper, appears generous to the children becomes illusory if, for
 reasons related to the excessive size of the payments, collection must be
 coerced on a regular basis.  The court that establishes a child support
 amount must be satisfied that it is fair and reasonable, so that it can be
 paid regularly, without further intervention of the legal system.
      Because it is undisputed that the 1987 order set the child support
 obligation more than 10% above the guideline amount, the court did not err
 in modifying the order.  See 15 V.S.A. { 660(b).
      Next, plaintiff argues that the court, once it found a change of
 circumstances, abused its discretion in lowering defendant's obligation.
 As this argument recognizes, the court has discretion to determine whether
 modification of the outstanding award is warranted and, if so, to set the
 new amount.  See Isham v. Isham, 152 Vt. 637, 640, 568 A.2d 421, 423 (1989).
 Under the guideline system, however, it is presumed that a child support
 award will be based on the guidelines unless the court finds that result
 "inequitable."  15 V.S.A. { 659(a) (current version of the statute
 substitutes the term "unfair" for "inequitable"); Ainsworth v. Ainsworth,
 154 Vt. at 107-08, 574 A.2d  at 775.
      Plaintiff's main claim of inequity is that the court's modification
 decision deprived her of the benefit of the 1987 agreement -- the
 restriction on future modification -- while retaining her burden -- the
 recharacterization of part of the award as maintenance -- so as to shift
 part of the tax burden onto her.  She emphasizes that the agreement states
 that the restriction on modification was relied upon by the parties in
 concluding the agreement. (FN4)
      Plaintiff misperceives the court's decision.  Under the 1987 agreement,
 defendant was obligated to pay $316 per week.  Based on the current income
 of the parties, defendant's child support obligation under the guidelines
 would be $191 per week.  The court found the guideline amount inequitable
 because it failed to account for defendant's extraordinary business
 expenses.  Once these expenses were taken into account, the court
 recalculated the award to $155 per week.  Plaintiff has not challenged this
 calculation, and we find it fully consistent with the statutory scheme.  It
 results in the conclusion that a fair child support award is less than 50%
 of what defendant was obligated to pay under the 1987 agreement.
      The court found that it could justify an award above the modified
 guideline amount only by terming the excess a maintenance supplement.  See
 15 V.S.A. { 661(a) (court shall order maintenance supplement to custodial
 parent where disparity in financial circumstances results in lower standard
 of living than the child would have if living with noncustodial parent).
 It concluded that plaintiff's circumstances warranted a maintenance
 supplement award of $45 per week.  That conclusion is not based on the 1987
 agreement; it is based on and is fully supported by the statutory scheme.
 We see no error in the court's conclusion that if plaintiff is to receive an
 amount above that calculated for child support under { 659, it must be
 characterized as maintenance under { 661.  In seeking this excess amount,
 plaintiff must accept the statutory characterization.
      Finally, plaintiff challenges the adequacy of the attorney's fees
 award.  The court awarded plaintiff all of her attorney's fees up until
 defendant filed a motion to modify in February of 1991.  Fees incurred after
 that date were borne by the party who incurred them.  The award of fees is a
 matter of justice and equity within the discretion of the court.  See Nevitt
 v. Nevitt, 155 Vt. 391, 399, 584 A.2d 1134, 1139 (1990).  We see no abuse of
 discretion here.  As the court's decision showed, defendant had a child
 support obligation well above that calculated under the statute and
 prevailed on the motion to modify.  Given the circumstances of the parties,
 it was not unreasonable to require plaintiff to bear her litigation costs
 associated with the modification motion.
      Affirmed.

                                         FOR THE COURT:




                                         Associate Justice



FN1.    The statute was amended by 1990, No. 220 (Adj. Sess.) { 23 to lower
the percentage deviation warranting modification from 15% to 10%.  The
amendment was effective on October 1, 1990.  Because the deviation in this
case exceeds 15%, the amendment had no effect on the outcome.

FN2.    The family court calculated that defendant would have been obligated
to pay child support of $152 per week in 1987 under the guidelines.

FN3.    The Windsor Family Court found that the reduction in defendant's
income, and the increase in plaintiff's income, represented a real, sub-
stantial and unanticipated change of circumstances warranting modification
pursuant to 15 V.S.A. { 660(a).  Because of this finding, it concluded that
defendant's challenge to the stipulation provision prohibiting modification
based on { 660(b) was moot.  It went on, however, to find the provision
invalid and strike it from the order so it would not affect future modifi-
cation motions.  We believe that this circuitous route to modification is
unnecessary.  If the provision is invalid, defendant can base this
modification motion on { 660(b).

FN4.    Plaintiff has not argued that the family court could not modify the
maintenance amount or that modification of that amount must be based on a
different standard.  Instead, the thrust of plaintiff's argument is that
she should have the benefit of decreased taxes if the overall award is
reduced.  Apparently because of this argument and the agreement language
characterizing part of the award as maintenance solely for tax purposes, the
court used the child support modification standard with respect to the whole
award.  Because plaintiff has not challenged this aspect of the court's
analysis, we do not consider whether it is correct.