Clapp v. Clapp

• Decision Date: 04 November 1994
• Docket Number: No. 93-458,93-458
• Citation: 163 Vt. 15,653 A.2d 72
• Court: Vermont Supreme Court
• Parties: Elizabeth W. CLAPP v. Michael B. CLAPP.

Page 72

653 A.2d 72

163 Vt. 15

Elizabeth W. CLAPP v. Michael B. CLAPP.

No. 93-458.

Supreme Court of Vermont.

Nov. 4, 1994.

Nancy Corsones of Corsones & Corsones, Rutland, for plaintiff-appellee.

William H. Quinn of Pierson, Wadhams, Quinn & Yates, Burlington, for defendant-appellant.

Before: GIBSON, DOOLEY and JOHNSON, JJ., and PECK, J. (Ret.), Specially Assigned.

DOOLEY, Justice.

Defendant, Michael Clapp, appeals a decision of the Chittenden Family Court in the divorce action between him and his former wife, Elizabeth Clapp, challenging both property and maintenance orders contained therein. We order stricken paragraph 17 of the court's order requiring that defendant pledge his interest in his law firm or purchase a life insurance policy of equivalent value in order to secure his maintenance obligation to plaintiff in the event of his death before age sixty-five; in all other respects, we affirm.

The parties were married in 1967 following defendant's first year of law school. When defendant graduated in 1969, the parties returned to Vermont and he began his legal practice that continues to this day. The parties' son was born in 1970 and their daughter in 1972. Plaintiff remained home to care for the children full time until 1975, at which time she began pursuing her master's degree in education. In 1977, having received her degree, plaintiff began work as a junior high school guidance counselor. In 1981, she became a high school guidance counselor and has continued in that job to the present. In 1987, after twenty years of marriage, the parties separated. Plaintiff filed for divorce in 1989. In 1991, her annual income before taxes was $45,237; defendant's annual income before taxes was $137,600.

The parties were divorced by final order of the Chittenden Family Court entered in February 1993. At that time, both parties were forty-eight years old. The court found that the parties' assets totalled $1,257,577, and their liabilities $498,773. Finding that the merits of the situation favored plaintiff wife slightly, the court ordered the parties' assets to be split 60% to wife and 40% to husband. In so decreeing, the court awarded each spouse the respective homes, but required that both homes be sold and the equity divided 60/40.

The court ordered defendant to pay maintenance and set the amount temporarily at $2,000 per month. Thereafter, it required a calculation of maintenance based on an equalization of the parties' after-tax income from June 1987 to the date of the divorce. This maintenance amount had not been calculated at the time of the appeal, and the parties had widely divergent claims about the result of the calculation. ¹ Once calculated, the base maintenance amount would be adjusted annually based on changes in the Consumer Price Index.

On appeal, husband raises five arguments: (1) the family court erred in its determination that wife had established grounds for maintenance; (2) the court's maintenance order exceeds its authority and is therefore an abuse of discretion; (3) the court had no evidence upon which to base its maintenance award to compensate plaintiff for her monetary and nonmonetary contributions to the marriage; (4) the court exceeded its authority in ordering defendant to sell his residence; and (5) the court erred in requiring defendant to pledge his law firm interest or alternatively to purchase life insurance in the amount of that interest to secure maintenance payments to wife in the event of defendant's death before age sixty-five. We find no merit in the first four arguments; we do, however, agree with defendant's final contention, and modify the court's order to strike the paragraph requiring defendant to pledge his interest in his law firm or purchase a life insurance policy of equivalent value to secure payment of maintenance to plaintiff should defendant die before he reaches sixty-five years of age.

We can combine defendant's first three arguments for purposes of analysis. Relying on 15 V.S.A. § 752(a), defendant argues that the court could not award maintenance unless plaintiff's reasonable needs are not met by her income, including the income available from any assets awarded to her. In this case, defendant argues, plaintiff's reasonable needs were met by her income, and no maintenance should have been awarded. Alternatively, he claims that any maintenance award cannot exceed the amount necessary to enable the obligee to meet her reasonable needs. Specifically, he argues that the family court has no discretion to increase the award above that reasonably needed in order to compensate her for past contributions as a homemaker because the statute does not allow for restitutionary or compensatory awards based on past events. In this case, he claims the award clearly exceeded the amount reasonably needed even if an award of some maintenance was appropriate.

Much of defendant's argument is based on the statutory language, which provides:

§ 752. Maintenance

(a) In an action under this chapter, the court may order either spouse to make maintenance payments, either rehabilitative or permanent in nature, to the other spouse if it finds that the spouse seeking maintenance:

(1) lacks sufficient income, property, or both, including property apportioned in accordance with section 751 of this title, to provide for his or her reasonable needs, and

(2) is unable to support himself or herself through appropriate employment at the standard of living established during the marriage or is the custodian of a child of the parties.

15 V.S.A. § 752(a). The argument specifically emphasizes § 752(a)(1) which requires a threshold finding that the prospective obligee lacks income or property to meet "reasonable needs." See Justis v. Rist, 159 Vt. 240, 245, 617 A.2d 148, 150-51 (1992) (court can award maintenance only when § 752(a) authorizes it). In defendant's view, the court must first determine reasonable need without regard to the income available during the marriage, or the obligor's current income, and award maintenance only if this need is not met by the obligee's nonmaintenance income and property.

Defendant's argument involves an overly narrow reading of § 752(a)(1). The statute is based on a concept of relative, not absolute, need. See Chaker v. Chaker, 155 Vt. 20, 25, 581 A.2d 737, 740 (1990) (relying on Buttura v. Buttura, 143 Vt. 95, 99, 463 A.2d 229, 231 (1983), court can award maintenance even though wife is meeting her needs through employment where vast inequality in parties' financial position remains). Thus, we have held that reasonable need is not to be judged in relation to subsistence. See Klein v. Klein, 150 Vt. 466, 474, 555 A.2d 382, 387 (1988). We have emphasized, on the other hand, that reasonable needs are to be determined "in light of the standard of living established during the marriage." McCrea v. McCrea, 150 Vt. 204, 207, 552 A.2d 392, 394 (1988); see also Coor v. Coor, 155 Vt. 32, 35, 580 A.2d 500, 502 (1990) (reaffirming interpretation of "reasonable needs" in § 752(a)(1) as meaning needs determined in light of standard of living during marriage). In Downs v. Downs, 154 Vt. 161, 166, 574 A.2d 156, 159 (1990), we went further and held that the term "reasonable needs" allowed the court "to balance equities whenever the financial contributions of one spouse enable the other spouse to enhance his or her future earning capacity." We have also held that one purpose of maintenance under § 752(a) is to compensate a homemaker for contributions to family well-being not otherwise recognized in the property distribution. See Strauss v. Strauss, 160 Vt. 335, 338-39, 628 A.2d 552, 554 (1993).

We do not have to plunge deeply into the detail of plaintiff's post-separation needs to affirm the award of maintenance in this case. According to the findings, the parties were living on an after-tax income of approximately $130,000 per year and spending most of it. Of this, about $33,000 is attributable to plaintiff. ² Both parties had attained maximum vocational skills and employability. Defendant's earning capacity should, however, grow at a faster rate as he approaches retirement.

It is clear given the differences in income that plaintiff would not maintain the standard of living realized during the marriage on her share of the marital income. The court found that plaintiff needed an additional amount of approximately $1,000 per month to meet reasonable expenses. At trial, defendant apparently agreed that plaintiff's income was inadequate to cover legitimate expenses but calculated the shortfall at $775 per month. In light of the standard of living of the parties, the court acted within its discretion in awarding maintenance in this case.

On a similar theory, defendant attacks the amount of maintenance awarded. As indicated above, the court found that the deficit in plaintiff's income to pay expenses amounted to about $1,000 per month. It also recognized that plaintiff had made a significant nonmonetary contribution to the marriage as a homemaker, and had reduced her earnings over the years because of this contribution. For the dual purpose of avoiding "an adverse economic impact upon the plaintiff" and compensating her for her nonmonetary contributions during the marriage, the court ordered such permanent maintenance as would equalize after-tax income, as calculated over the period from the date of separation to the date of divorce. Maintenance is not to be eliminated or reduced because plaintiff cohabits with another person or remarries. The amount is not adjusted on a regular basis because of changes in either party's income, although it is adjusted for inflation.

At the outset, we point out that the family court has broad discretion in determining the amount of maintenance, and we will reverse only if there is no reasonable basis to support the award. See Delozier v. Delozier, 161 Vt. 377, ----, 640 A.2d 55, 57 (1994). In determining the amount of...