Braine v. Braine, 310
| Decision Date | 04 June 1968 |
| Docket Number | No. 310,310 |
| Citation | 127 Vt. 211,243 A.2d 797 |
| Court | Vermont Supreme Court |
| Parties | Doris V. BRAINE v. Thomas B. BRAINE. |
John T. Ewing, Burlington, for plaintiff.
Wick, Dinse & Allen, Burlington, for defendant.
Before HOLDEN, C. J., and SHANGRAW, BARNEY and SMITH, JJ.
On petition of the libellee-husband, the final divorce decree between the parties, entered December 5, 1957, was modified and the support payments reduced. The libellant appeared in opposition, and now appeals the modification of the decree.
The findings disclose that the original order was based on a stipulation entered into prior to the granting of the divorce. The order followed the stipulation in fixing the monthly support payment figure beyond the period when the younger child, then eleven, reached twenty-two. When the older, then fifteen, reached twenty-two, the required payments of $213 a month were reduced to $175. When the other child reached that age, the monthly payments were to become $125.
This petition was brought just a few months before the younger child became twenty-two. The order was modified so as to require payments of $75 a month thenceforth, without regard to the age of the children. The order was not otherwise varied from the stipulated terms.
The remainder of the facts reported in the findings may be briefly summarized. The stipulation called for the sale of the real estate and for the libellant to obtain employment before the payment schedule already described was to start. The libellant found a position at Champlain College, and has remained there since, a period of some nine years. Her 1966 salary was $7,576.66. Her monthly expenses amount to $550. She recently inherited $10,000, which is on deposit to the joint credit of herself and the oldest child. The two children were twenty-one and twenty-five years of age, respectively, at the time of the hearing, and both are married and self-sustaining. The libellee has remarried, and his present wife is employed at a substantial annual salary. His own income comes to $649.36 a month, and his expenses $722.77, with an annual deficit of $880.92. In 1966 he paid the libellant $2100. At the time of hearing his assests amounted to $23,981.06, his liabilities to $17,143.46, yielding a net worth of.$6,837.60. The stipulation also called for life insurance on the libellee for the benefit of the libellant and the children as long as they were under twenty-two.
With these facts in hand the court went on to find that there has been a change in circumstances in relation to the parties since the issuance of the original decree. This determination is a prerequisite to any authority to grant a petition to modify. Miller v. Miller, 124 Vt. 76, 79, 197 A.2d 488. Moreover, the findings must show that change to be of sufficient material substance to support the amendment made to the order. Hall v. Hall, 124 Vt. 410, 412, 206 A.2d 786.
The discretion granted the court in arriving at property settlements and support orders in large, and must usually be exercised under most taxing circumstances. The conclusions reached are not to be lightly set aside by tribunals not exposed to the testimony, arguments and explanations presented below. Courts asked to modify an order should also approach the matter...
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