Taylor v. Taylor

Taylor v. Taylor (2001-309); 175 Vt. 32; 819 A.2d 684

[Filed 08-Nov-2002]

[Motion to Amend Granted 07-Jan-2003]


       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. 2001-309


  Christine Fraioli Taylor	                 Supreme Court
  John K. Nelson
                                                 On Appeal from
       v.	                                 Addison Family Court

  Richard Taylor	                         May Term, 2002


  Edward J. Cashman, J.

  James C. Foley, Jr. of Deppman & Foley, P.C., Middlebury, for
    Plaintiff-Appellee.

  Marsha Smith Meekins of Roesler, Whittlessey, Meekins & Amidon,
    Burlington, for Defendant-Appellant.


  PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

        
       DOOLEY, J.   Defendant, Richard Taylor, appeals from the family
  court's decision dismissing his motion to modify spousal maintenance.  On
  appeal, he claims that the trial court erred by: (1) finding that it did
  not have jurisdiction to modify the parties' maintenance order because the
  remarriage of plaintiff, Christine Taylor, to a person of significant
  wealth was not a real, substantial and unanticipated change of
  circumstances; (FN1) and (2) ordering that Richard make no further inquiry 

 

  into the finances of plaintiff's new spouse and that he return any
  financial data he had gathered to the new spouse.  For the reasons stated
  below, we reverse and remand for further proceedings.

       The material facts are not in dispute.  Richard and Christine were
  married in 1975 after they both graduated from Middlebury College.  During
  the marriage, Richard was an attorney in private practice, and for most of
  the marriage, Christine ran the household and raised the couple's two
  children.  When the children became older, Christine worked for Middlebury
  College in an art museum as a museum curator.  Shortly before she filed for
  divorce, she was terminated from this job.  The couple owned a home and
  over two hundred acres of land together and enjoyed a comfortable
  lifestyle, funded almost exclusively by Richard's law practice and his
  interest in several family trusts and pieces of real estate.  Christine
  filed for divorce in 1991 after she discovered that Richard had been having
  an affair with his paralegal.

       After contested divorce proceedings, the family court issued a divorce
  order on September 17, 1992; it included an award of maintenance to
  Christine of $500 per week, to terminate upon Christine's death,
  remarriage, or cohabitation with another person.  Christine moved to amend
  the provision terminating maintenance upon remarriage.  The motion argued:

    Christine hopes that a long term positive relationship in marriage
    or otherwise will be part of her future.  Automatic termination of
    maintenance on remarriage or cohabitation effectively precludes
    this possibility.  While remarriage may result in an acceptable
    level of financial security for Christine, this change is far from
    certain.  Given the vast inequities in the financial circumstances
    of the parties after the divorce, the duration of the marriage,
    and the inequity in property division notwithstanding the fault
    issue, automatic termination of maintenance with remarriage is not
    appropriate.  Rather, remarriage or cohabitation should be factors
    to be considered as a change in circumstance in the event either
    occurs and Richard seeks to modify maintenance. . . .

 

  The court granted the motion on October 29, 1992.  In place of the earlier
  provision, the court placed  the following in its final order of December
  4, 1992:

    Upon Plaintiff's remarriage or Plaintiff's living with another as
    if married spousal maintenance shall be reduced by fifty percent
    of its then current level.

       Christine appealed the property and maintenance awards to the Vermont
  Supreme Court, and we reversed and remanded the case to the family court
  for further findings of fact and a more equitable property settlement. 
  Taylor v. Taylor, No. 93-028 (Vt. Mar. 3, 1994) (unpublished entry order). 
  Because the maintenance and property awards were interrelated, we vacated
  and remanded the maintenance award as well.  Id. at 2.  We addressed
  Christine's arguments about the maintenance award to minimize further
  litigation on the topic.  We upheld the maintenance award generally and
  specifically upheld the provision reducing the maintenance amount by fifty
  percent should plaintiff remarry as within the family court's discretion
  under Coor v. Coor, 155 Vt. 32, 35, 580 A.2d 500, 502 (1990).  Taylor, slip
  op. at 3.

       After remand, Richard filed a motion to terminate or modify
  maintenance, which Christine opposed.  A hearing was held on July 7, 1994,
  where the parties stipulated to the terms of a new final order and decree
  in order to resolve all pending motions.  On July 26, 1994, the family
  court filed its second amended final order and decree, which provided:

    [Richard] shall pay to [Christine] the initial sum of $500 per
    week as maintenance which shall continue until the death of either
    party.  Upon [Christine's] remarriage or [Christine's] living with
    another as if married spousal maintenance shall be reduced by
    fifty percent of its then current level.  Spousal maintenance
    shall be adjusted on April, 1993, and annually thereafter to be
    increased or decreased by a percentage change for the previous
    year in the ... Consumer Price Index . . . .

 
            
       On August 6, 1999, Richard filed another motion to terminate or modify
  maintenance, mainly alleging that Christine had remarried a "person of
  significant wealth" and as a result Christine no longer required Richard's
  maintenance to live at the standard of living established during the
  marriage.  The court first dismissed the motion because it found that no
  real, substantial and unanticipated change of circumstances existed in
  light of the provision on remarriage.  See 15 V.S.A. § 758 (finding of
  real, substantial and unanticipated change of circumstances is
  jurisdictional requirement to modify maintenance order).  On Richard's
  timely motion to reconsider, the court reversed itself and allowed
  discovery to go forward on plaintiff's current income and wealth.  The
  parties battled over discovery for nearly a year, after which Christine
  filed a renewed motion to dismiss.

       The court reversed itself again and dismissed Richard's motion to
  modify, finding that Richard failed to show that there was a real,
  substantial and unanticipated change of circumstances, as required for
  modification under 15 V.S.A. § 758.  The court reasoned that Christine's
  remarriage could not be considered an unanticipated change of circumstances
  because the parties and the family court had already anticipated her
  remarriage by making specific provision for it, without regard to the
  income or wealth of her new husband.  It also noted that the only change in
  financial circumstances the provision recognized was the change in the cost
  of living.  The court likened the maintenance provision to a liquidated
  damages clause.  Because it dismissed the motion, it prohibited further
  discovery into the financial affairs of Christine's new husband and ordered
  that all such information in Richard's possession be returned.
   
       The main issue in this case is whether the family court had
  jurisdiction over the motion to modify in light of the maintenance
  provision.  In a nutshell, Richard's argument is that this case is
  primarily about Christine's newly-acquired income and wealth, and their
  effect on her need for 

 

  maintenance, and only secondarily about her remarriage.  He claims that it
  was never anticipated that she would marry a person of such wealth. 
  Christine counters that this case is primarily about her remarriage,
  because that is the source of any new income and wealth, and the parties
  agreed what the effect of her remarriage would be.  She argues that since
  the parties specifically provided for the effect of her remarriage, it was
  anticipated.

       While the parties disagree on how we should view the maintenance
  provision in the divorce order, they do agree Christine had no specific
  remarriage plans at the time of the divorce decree, and certainly no plans
  to marry her current husband.  Indeed, there is no indication that she and
  her current husband had even met when the divorce order was issued.
   
       The basic underlying law governing the question before us is settled. 
  Before the court can modify a maintenance order, it must find that there
  has been a real, substantial and unanticipated change of circumstances; if
  the required change has not occurred the court has no jurisdiction to
  modify the order.  See id.; Gil v. Gil, 151 Vt. 598, 599, 563 A.2d 624, 625
  (1989).  The court can modify the maintenance award whether or not it "is
  based upon a stipulation or an agreement."  15 V.S.A. § 758; Bullard v.
  Bullard, 144 Vt. 627, 629 n.*, 481 A.2d 1049, 1051 n.* (1984) (after 1982
  amendment to § 758, the same standard governs a motion to modify
  maintenance whether or not a stipulation is involved).  The threshold
  determination of changed circumstances is discretionary.  See deBeaumont v.
  Goodrich, 162 Vt. 91, 98, 644 A.2d 843, 847 (1994).  "[T]here are no fixed
  standards for determining what meets this threshold, and . . . evaluation
  of whether or not any given change is substantial must be determined in the
  context of the surrounding circumstances."  Pigeon v. Pigeon, ___ Vt. ___,
  ___, 782 A.2d 1236, 1238 (2001) (internal punctuation and citation
  omitted).  Normally, we will not disturb the trial court's discretionary
  determination unless the discretion was erroneously exercised, or was
  exercised upon unfounded considerations or to an extent clearly

 

  unreasonable in light of the evidence.  deBeaumont, 162 Vt. at 98, 644 A.2d 
  at 847.  In this case, however, we are confronted with a non-discretionary
  question of law because the trial judge ruled that he had no discretion to
  grant defendant's motion.

       The purpose of spousal maintenance is to allow spouses receiving
  support to meet their "reasonable needs."  15 V.S.A. § 752(a)(1).  Those
  needs are determined based upon the standard of living established during
  the marriage.  Id. § 752(a)(2).  15 V.S.A. § 752(b) directs the family
  court to consider a number of non-exclusive factors in making its award,
  including the financial resources of the parties, the receiving party's
  ability to meet needs independently, the standard of living established
  during the marriage, the duration of the marriage, the emotional condition
  of each spouse, and the ability of the spouse from whom maintenance is
  sought to meet his or her reasonable needs while also meeting those of the
  other spouse.  In addition, a maintenance award may reflect an intent to "
  'recompense for the contribution of a homemaker to the family's well-being
  which was not otherwise made (presumably in the property division).' " 
  Klein v. Klein, 150 Vt. 466, 474, 555 A.2d 382, 387 (1988) (quoting
  Krauskopf, Maintenance: A Decade of Development, 50 Mo. L. Rev. 259, 292-93
  (1985)).  Once a party receiving support remarries, the new spouse also
  owes the party a reciprocal duty of "suitable support."  15 V.S.A. §
  291(a).

       Many states have adopted specific rules governing the effect of
  remarriage on preexisting maintenance awards.  Up until about thirty years
  ago, even in cases where the divorce order did not stipulate that
  maintenance payments terminate upon the recipient's remarriage, it was
  considered contrary to public policy to allow a person to be concurrently
  supported by both a current spouse and a former spouse.  See, e.g., Myers
  v. Myers, 195 N.W.2d 113, 115 (Iowa 1972) (Rawlings, J., dissenting);
  Wolter v. Wolter, 158 N.W.2d 616, 619 (Neb. 1968).  Under this policy, a
  maintenance award is automatically terminated if the recipient spouse
  remarries.

 
   
       The contemporary approach in most states still disfavors concurrent
  support, but does not require automatic termination of a maintenance award
  on remarriage of the recipient spouse.  Instead, most courts hold that
  remarriage establishes a prima facie case for termination or reduction of
  the ordered maintenance payments.  See, e.g., Keller v. O'Brien, 652 N.E.2d 589, 593 (Mass. 1995); Marquardt v. Marquardt, 396 N.W.2d 753, 754 (S.D.
  1986).  In these jurisdictions, the receiving spouse may continue to
  receive maintenance only in an extraordinary circumstance.  See, e.g., In
  re Marriage of Gillilland, 487 N.W.2d 363, 366 (Iowa Ct. App. 1992)
  (extraordinary circumstance found where standard of living provided by new
  spouse with annual income of $30,000 would not meet standard of living
  during previous marriage to husband who earned $220,000 annually); In re
  Marriage of Orgren, 375 N.W.2d 710, 712-13 (Iowa Ct. App. 1985)
  (extraordinary circumstance found where recipient wife cohabited with a man
  who earned $5,900 annually and did not contribute any financial support to
  wife); Bauer v. Bauer, 356 N.W.2d 897, 898-99 (N.D. 1984) (extraordinary
  circumstance found where payor spouse and recipient spouse had large
  disparity in education and payor spouse's unfulfilled agreement to pay for
  recipient spouse's education was incorporated in original decree).

       This Court has not, however, followed the majority of jurisdictions in
  this area.  Our law is stated in Johnson v. Johnson, 155 Vt. 36, 42, 580 A.2d 503, 507 (1990):

    While it is within the court's discretion to terminate the
    maintenance award upon remarriage . . . , remarriage is not a
    factor that must be considered under § 752.  Remarriage does not
    necessarily improve the spouse's financial security, and therefore
    courts have held that remarriage does not automatically justify a
    termination of maintenance payments. . . .  Further, the paying
    spouse may seek a modification of the order if remarriage causes
    an increase in income so that a real and substantial change of
    circumstances is present.

 
        
  (Citations omitted); see also Coor v. Coor, 155 Vt. at 35, 580 A.2d  at 502
  (family court had discretion to include in divorce decree a provision that
  maintenance would terminate on remarriage; if "anticipated increased
  financial security does not materialize, [spouse] . . . may seek an
  amendment of the order terminating maintenance upon remarriage").

       The central point of Johnson and Coor is that we have viewed
  remarriage as relevant to an ongoing maintenance obligation only to the
  extent it bears on the "financial security" of the recipient spouse.  This
  point is consistent with our precedents under § 758 that substantial and
  unanticipated changes in the non-maintenance income available to the
  recipient spouse, or to the income available to the obligor spouse, can be
  a change in circumstances to warrant modification of a maintenance award. 
  See Stickney v. Stickney, 170 Vt. 547, 548, 742 A.2d 1228, 1230 (1999)
  (lack of expected income increases of obligor spouse, as well as increased
  income available to recipient spouse, supported modification of maintenance
  order); Lowery v. Lowery, 156 Vt. 268, 273-74, 591 A.2d 81, 84 (1991)
  (reduction of income of obligor spouse can constitute changed circumstances
  to allow modification of maintenance award); Sylvia v. Sylvia, 146 Vt. 596,
  597-98, 508 A.2d 708, 709 (1986) (175% increase in income of obligor
  spouse, and loss of employment because of illness of recipient spouse,
  constitute a change in circumstances to allow modification of the
  maintenance award under § 758); Bullard, 144 Vt. at 629, 481 A.2d  at 1051
  (in determining whether grounds for modification of maintenance award
  exist, court may consider improved financial circumstances of recipient
  spouse).
   
       Under Coor the recipient spouse can make a motion to modify a
  remarriage provision in a maintenance order if the remarriage produces
  substantially less financial security than necessary to replace all or part
  of the maintenance award.  Under Johnson, the obligor spouse can bring a
  motion to modify if, in the absence of a remarriage provision in a
  maintenance order, a remarriage 

 

  substantially reduces the need for maintenance.  We see no reason for a
  different rule here.  Richard alleges that Christine now has access to such
  income and wealth that she no longer needs maintenance.  Her improved
  financial security is grounds for the motion to modify the maintenance
  award.

       In reaching this conclusion, we cannot accept the family court's
  ruling that the maintenance provision, reducing maintenance to 50% on
  remarriage, should be treated like a liquidated damages clause that
  prevents looking at the financial circumstances of the parties at any time
  after the provision is adopted.  Because maintenance provisions are forward
  looking, they necessarily involve some predictions of the future
  circumstances of the parties.  The maintenance award should be tailored to
  this prediction of future circumstances.  This does not mean, however, that
  the award that results from the prediction is immutable.  Indeed, under the
  family court's theory, no maintenance award could be modified, at least if
  it contained a provision that directed a change in the maintenance amount
  based on a future event.

       Nor does it make a difference that the maintenance award is based, at
  least technically, on an agreement of the parties.  Section 758 allows
  modification of stipulated maintenance awards under the same circumstances
  as court-imposed awards without an underlying agreement of the parties.

       This is not a holding that the parties cannot in appropriate
  circumstances include in an agreement what events will or will not be
  considered a real, substantial and unanticipated change of circumstances
  for purposes of a motion to modify a maintenance award.  Indeed, we have
  recognized the validity of such a provision in a child custody provision. 
  See deBeaumont, 162 Vt. at 96, 644 A.2d  at 846.  In this case, there is no
  indication from its wording that the maintenance provision defined changed
  circumstances in relation to Christine's remarriage.

 

       We are also not holding that the motion to modify must be granted. 
  Although the motion to modify has been pending for a considerable period of
  time, no evidence has yet been taken.  Further, even if Richard is entitled
  to some relief, he is not necessarily entitled to the termination of his
  maintenance obligation.  We emphasize as we did in Stickney v. Stickney
  that maintenance serves multiple purposes including "to compensate the
  homemaker for contributions to family well-being not otherwise recognized
  in the property distribution."  170 Vt. at 549, 742 A.2d  at 1231.  The
  parties disagree whether part of the maintenance award in this case was
  intended to be compensatory.  If the family court finds a real, substantial
  and unanticipated change of circumstances, it will have to resolve this
  disagreement in deciding how much, if any, to reduce the maintenance award.

       In light of our disposition of the first issue, the disposition of the
  next issue necessarily follows.  The family court prohibited further
  discovery, and ordered the return of discovery materials Richard had
  already received, because it decided to dismiss the modification motion. 
  As we have reversed the dismissal of the motion, we also strike these
  discovery orders. Reversed and remanded for proceedings not inconsistent
  with this opinion.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  Richard briefed whether a prenuptial agreement signed by Christine
  with her new husband prevented her access to her husband's wealth. 
  Christine argued below that the motion to modify should be denied because
  of the prenuptial agreement, but the family court never reached this
  argument, and Christine has not raised it here.  We do not consider the
  effect of the prenuptial agreement, preferring that it be addressed in the
  first instance by the family court.