Braun v. Greenblatt

• Decision Date: 15 June 2007
• Docket Number: No. 2005-318.,2005-318.
• Citation: 927 A.2d 782,2007 VT 53
• Parties: Sheila BRAUN v. Marc GREENBLATT.
• Court: Vermont Supreme Court

927 A.2d 782

2007 VT 53

Sheila BRAUN v. Marc GREENBLATT.

No. 2005-318.

Supreme Court of Vermont.

June 15, 2007.

Ben W. Joseph, J.

Brian K. Valentine and Caryn E. Waxman of Downs Rachlin Martin PLLC, Burlington, for Plaintiff-Appellee.

Susan M. Murray and Erin Miller Heins of Langrock Sperry & Wool, LLP, Burlington, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ., and DAVENPORT, SUPR. J., Specially Assigned.

DAVENPORT, Supr. J., Specially Assigned.

¶ 1. Husband appeals from a family court post-judgment modification order that tripled his monthly spousal maintenance obligation and extended its duration indefinitely. Husband argues that the court committed numerous reversible errors, including failing to find a real, substantial, and unanticipated change of circumstances and ordering an amount and duration of maintenance that constitute an abuse of discretion. We reverse and remand.^*

¶ 2. The parties married in December 1995 when both were thirty-four years old. Earlier that year, wife quit a graduate school program and left a job where she was earning $41,000 per year as a computer programmer in Washington, D.C. in order to move to Vermont where her husband had been offered a position as a research physician at Fletcher Allen Medical Center and the University of Vermont. Within a year of their wedding, the parties had their first child. While husband continued to advance his career in oncology, wife assumed the role of primary caregiver and did not work outside the home. A second child was born in August 1999, by which time the parties had separated. After wife filed for divorce in September 1999, the parties negotiated a settlement agreement that provided for wife to continue as the children's primary caregiver. The agreement contemplated the possibility that wife would home school the children and earn minimal or no income.

¶ 3. At the time the stipulation was finalized and the divorce granted in December 2000, husband was earning an annual salary of $121,574.96 and wife had no earnings. Under the terms of the agreement, wife was to receive spousal maintenance, child support, and maintenance supplement. Although the marital home was awarded to husband, the parties agreed that wife could remain in the marital home after the divorce for up to thirteen months. While she remained in the marital home, she was to receive $2,650 per month in spousal maintenance. Once she moved out of the home, an event that was to occur no later than March 31, 2002, the obligation decreased to $2,350 per month.

¶ 4. The current dispute over maintenance focuses on a troublesome provision regarding the renegotiation of the maintenance obligation after divorce:

The parties will renegotiate commencing May 1, 2004 what, if anything, shall be paid in spousal support after August 31, 2004. It is the parties' intention that there be no presumption either in favor of or in opposition to the continuation of rehabilitative spousal support based on this Stipulation. The parties specifically intend to defer this issue to 2004 and take a fresh look at it at that time, when they will have better information regarding their income and expenses at that time. If the parties cannot reach agreement on this without assistance, they shall mediate this issue in good faith for not less than 5 sessions before requesting the assistance of the court.

The parties failed to reach any agreement as to what amount, if any, husband should pay in spousal maintenance after August 2004. In December 2004, after negotiation and mediation had failed, husband moved to terminate the obligation. Wife filed a cross-motion to continue maintenance at a level to be determined by the court and to enforce other provisions of the final order. The family court heard two days of testimony in January and March 2005. In addition to testimony by the parties, wife presented two expert witnesses: an accountant to analyze husband's income from 2000 to 2004, calculate arrears, and assess tax implications; and a career advisor to explain wife's career and education options for reentering the workforce. At the end of the hearings, the court invited the parties to submit proposed findings of fact and conclusions of law.

¶ 5. The family court's July 2005 decision adopted in large measure the proposed findings, conclusions, and order submitted by wife. The court modified maintenance by increasing the monthly obligation to $6,300 per month plus "an amount to cover [wife's] monthly tax obligation" for a five-year period retroactive to September 1, 2004. After the five years, husband's obligation was to decrease dollar for dollar based on wife's actual income. The order also provided that, for so long as maintenance continued, husband's obligation would increase based on either the percentage increase in his income, including investment income, or an annual cost-of-living adjustment. The court further ordered that husband pay accumulated arrears owing from an income-increase provision in the final order, pay arrearages in the children's extracurricular and educational expenses, make deposits into one of the children's savings accounts, and pay the fees of wife's attorneys and expert witnesses. Husband argues that the court erred first by failing to find a real, substantial, and unanticipated change of circumstances that would support an exercise of subject matter jurisdiction and then by making a series of errors in modifying maintenance and enforcing the final order. We first address the maintenance award and then the issues related to the calculation of the spousal maintenance arrearage, the enforcement of the provision related to the children's savings accounts and the award of attorney fees.

I. Spousal Maintenance Award

¶ 6. Spousal maintenance may be modified only "upon a showing of a real, substantial, and unanticipated change of circumstances." 15 V.S.A. § 758. In the absence of the required change, the court is without jurisdiction to modify a maintenance order. Golden v. Cooper-Ellis, 2007 VT 15, ¶ 57, ___ Vt. ___, 924 A.2d 19; Taylor v. Taylor, 175 Vt. 32, 36, 819 A.2d 684, 688 (2002). There are no fixed standards for determining what meets this threshold, and the determination of whether a particular change is substantial must be made in the context of the surrounding circumstances. Golden, 2007 VT 15, ¶ 57, 924 A.2d 19 (citing Taylor, 175 Vt. at 36, 819 A.2d at 688). The trial court's ruling is discretionary and will not be disturbed "unless the discretion was erroneously exercised, or was exercised upon unfounded considerations or to an extent clearly unreasonable in light of the evidence." Taylor, 175 Vt. at 36, 819 A.2d at 688.

¶ 7. Wife argues that husband waived any jurisdictional argument by failing to raise it below. Husband's motion requested "enforcement" of the final order, rather than modification, and wife's cross-motion sought an order "establishing spousal maintenance"; the change-of-circumstances requirement was consequently unaddressed. The failure to raise the issue of subject matter jurisdiction below does not preclude its consideration on appeal, however. "It is axiomatic that lack of subject matter jurisdiction . . . may be raised for the first time on appeal . . . ." Town of Charlotte v. Richmond, 158 Vt. 354, 358, 609 A.2d 638, 640 (1992). We may thus properly consider whether the court had subject matter jurisdiction.

¶ 8. The trial court made substantial modifications to the nature and the amount of the spousal maintenance obligation that had been in place since the final order. Not only did the court order husband to pay more than triple the amount he was required to pay under the stipulated final order, but it effectively converted a rehabilitative award into a permanent award. At the time of the divorce in 2000, the parties agreed that the purpose of alimony was rehabilitative. The purpose of rehabilitative maintenance is to allow the recipient spouse to become self-supporting. Strauss v. Strauss, 160 Vt. 335, 339, 628 A.2d 552, 554 (1993). Rehabilitative maintenance is, by its nature, time limited. Id. By requiring husband to continue to pay spousal maintenance until wife's earnings exceeded the amount of the obligation, the trial court extended alimony for an indefinite period, effectively transforming it into a permanent award and eliminating any incentive for wife to become self-supporting.

¶ 9. The trial court made these changes without any reference to changed circumstances. The court concluded that it had subject matter jurisdiction based on the maintenance-renegotiation provision of the final order and the family court's exclusive jurisdiction to hear and dispose of all enforcement-of-support proceedings in divorce cases. See 4 V.S.A. § 454(3), (4). It interpreted the renegotiation provision as an agreement by the parties to defer the court's determination of spousal support. In short, the court did not address the issue of changed circumstances because it concluded that the parties had stipulated the issue away.

¶ 10. "[S]ubject matter jurisdiction cannot be conferred by agreement or consent of the parties when it is not given by law." Columb v. Columb, 161 Vt. 103, 110, 633 A.2d 689, 693 (1993) (quotations omitted) (rejecting argument that party waived subject matter jurisdiction in child custody case). Just as parties may not waive the ability to seek modification if there is a change of circumstances, Taylor, 175 Vt. at 39, 819 A.2d at 690 (citing 15 V.S.A. § 758), they may not waive the jurisdictional prerequisite that there be a change in circumstances prior to a modification of maintenance. Modification of the purpose of the alimony award and the amount of the obligation cannot be made absent a finding of a real, substantial, and unanticipated change in circumstances. Failure to address this jurisdictional threshold was error.

¶ 11. Wife contends that, even if jurisdiction is properly...