Clark v. Clark, 99-028.

Decision Date22 June 2001
Docket NumberNo. 99-028.,99-028.
Citation172 Vt. 351,779 A.2d 42
PartiesAlison M. CLARK v. Thomas B. CLARK.
CourtVermont Supreme Court

Kathleen B. Hobart of Fitzpatrick & Hobart, Jeffersonville, for Plaintiff-Appellee.

Mary P. Kehoe of Saxer Anderson Wolinsky & Sunshine, P.C., Burlington, for Defendant-Appellant.

Present: AMESTOY, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ., and TOOR, Superior Judge, Specially Assigned.


Father appeals from an order of the Chittenden Family Court granting mother's motion to modify child support. He argues that the court had no jurisdiction to modify the award because mother failed to meet her burden of showing a real, substantial and unanticipated change of circumstances, see 15 V.S.A. § 660(a) & (b); and, even if the court had jurisdiction, it incorrectly determined the amount of the modified award. We affirm.

The following facts are not in dispute. Mother and father were married in 1980. Their son Justin was born in 1982 and their daughter Mattie was born in 1986. Justin suffers from moderate cerebral palsy and, developmentally, is about five years behind his chronological age. He also suffers from attention deficit disorder and, as a result, has problems with his peers and with authority figures. Mattie is healthy and has no special needs.

During the marriage, the parties resided in Charlotte, and Justin attended Charlotte Elementary School, where he received special education services. The parties were divorced in 1993. Pursuant to the parties' stipulation, the court, in its final divorce order, awarded mother parental rights and responsibilities for Justin and Mattie, awarded father visitation, and provided that child support would be determined by the magistrate. Over father's objection, the court awarded mother sole possession of her interest in her father's estate and the Alison Clark Trust, a testamentary trust established by her father. The magistrate subsequently set child support at $944.92 per month, pursuant to the parties' stipulation.

Father appealed the portion of the family court's decision that awarded mother the estate and trust. In March 1994, the magistrate issued a child support order in the amount of $1,287.00 per month, in accordance with the child support guidelines. Father agreed to dismiss his appeal when mother agreed to stipulate to a child support order of $600.00 per month. In November 1994, the parties stipulated to child support of $600.00 per month, and in December 1994, the magistrate amended the order accordingly. The amended order deviated from the child support guidelines by more than ten percent.

In the spring of 1994, mother moved to South Burlington because she found Charlotte too isolating, and because she had heard positive things about the South Burlington school system's program for special-needs children. Justin, however, had difficulty in the school system. In March 1995, mother visited Crotched Mountain Rehabilitation Center and Preparatory School in New Hampshire, determined it was appropriate for Justin, and enrolled him there in June 1995, at a cost of $88,349.00 per year. In September 1995, mother filed a motion to modify child support; in June 1998, the magistrate granted mother's motion and set child support at $1,707.00 per month. The family court affirmed. Father appeals.

I. Real, Substantial and Unanticipated Change of Circumstances

Father first argues that the court had no jurisdiction to modify the award. According to father, because Justin's needs were apparent from an early age, the fact that he required special schooling was not a real, substantial, and unanticipated change of circumstances.1

15 V.S.A. § 660(a) provides, in pertinent part:

On motion of either parent . . . and upon a showing of a real, substantial and unanticipated change of circumstances, the court may annul, vary or modify a child support order, whether or not the order is based upon a stipulation or agreement.

15 V.S.A. § 660(b) provides, in pertinent part:

A child support order . . . [that] varies more than ten percent from the amounts required to be paid under the support guideline, shall be considered a real, substantial and unanticipated change of circumstances.

Under § 660(b), because the child support order mother sought to modify deviated from the guidelines by more than ten percent, the court had jurisdiction to modify the order. See Grimes v. Grimes, 159 Vt. 399, 406, 621 A.2d 211, 214 (1992) (declining to reach issue of whether decrease in father's income was real, substantial and unanticipated change in circumstances under § 660(a), citing § 660(b), and stating: "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.").

II. Amount of Award

Father argues that the court incorrectly determined the amount of the modified award because the court failed to impute income to mother for stocks that father contends are performing poorly, stocks that were not generating any income at the time of the hearing, expenses the trust incurs annually, and the increase in value of the trust corpus. Further, father argues, the court erroneously imputed $600 per month in income to him based upon the monthly rental value of a cottage that father's employer allows him to live in for free.

In Vermont, child support obligations are based upon the gross incomes of the parties. See Ainsworth v. Ainsworth, 154 Vt. 103, 107, 574 A.2d 772, 775 (1990). The language of 15 V.S.A. § 653(5) defines "gross income," in the context of child support calculations, as the "actual gross income of a parent," including "income from any source, including, but not limited to, . . . trust income." 15 V.S.A. § 653(5)(A)(i). Furthermore, the definition of gross income provides that "[i]ncome at the current rate for long-term United States Treasury Bills shall be imputed to nonincome producing assets with an aggregate fair market value of $10,000.00 or more." Id. (emphasis added).

The magistrate declined to impute income to mother for stocks that father contended were performing poorly because he concluded that mother's investments were income-producing assets. The family court affirmed. Here, it is undisputed that mother's investments are income producing assets. Thus, because the statute only applies to nonincome producing assets, father's argument fails. See Tarrant v. Department of Taxes, 169 Vt. 189, 197, 733 A.2d 733, 739 (1999) (In determining legislative intent, we begin with plain meaning of statutory language; if legislative intent is clear from language, we enforce statute "according to its terms without resorting to statutory construction."). As a policy matter, father argues that courts should require child support obligors and obligees "to at least make reasonable investments." We disagree. It is not the role of the judiciary to second guess personal investment decisions or to micromanage investment portfolios. And while we note that, "[i]n a given set of circumstances, the court may determine that it is appropriate to require a parent to reinvest or liquidate certain assets to provide for his or her children," this is not such a case. Ogborn v. Hilts, 262 A.D.2d 857, 692 N.Y.S.2d 490, 492 (1999) (quoting Webb v. Rugg, 197 A.D.2d 777, 602 N.Y.S.2d 716, 718 (1993)).2 Next, father argues that the court erred in refusing to impute income to mother for $643,000 worth of stocks in mother's trust that were not producing income at the time of the hearing. According to father, the evidence before the magistrate did not support his or the family court's conclusion that those stocks were income producing assets. However, father concedes that these stocks and the stocks he contends were performing poorly were commingled in one investment account. As we stated above, the facts of this case do not give rise to the circumstances in which a court should evaluate the parties' investment portfolios. To require courts in every case to carefully examine an investment account and determine which stocks are producing income and which are not would be an overly burdensome task.3

Father also argues that the court erred in failing to impute income to mother based upon $32,000 in trust-related taxes, legal and accounting fees, and fiduciary fees that are paid out of trust income annually. Under the terms of the trust, mother was entitled to the trust corpus when she reached the age of forty. Because mother is over forty years old, she could elect to have the trust distributed to her. Instead, mother continues to use the executors of the trust to administer the trust, thereby incurring annual fees and expenses. Father contends that because mother chooses to leave the funds in the trust, the fees should be imputed to her as income.

Father's argument appears to be based on a confusion regarding the distinction, for child support obligation purposes, between the income a trust generates, and the amount of such income that a beneficiary actually realizes. As noted, the governing statute includes "trust income" in the definition of a parent's "gross income." See 15 V.S.A. § 653(5)(A)(i). In construing a statute, "our overriding objective must be to effectuate the intent of the Legislature." State v. Dixon, 169 Vt. 15, 17, 725 A.2d 920, 922 (1999) (quoting State v. Read, 165 Vt. 141, 147, 680 A.2d 944, 948 (1996)). In doing so, our first step "is to look at the language of the statute itself [because] [w]e presume the Legislature intended the plain, ordinary meaning of the language." Id. (quoting State v. O'Neill, 165 Vt. 270, 275, 682 A.2d 943, 946 (1996)). It is clear from a reading of the plain language of the statute that the legislature intended to define income in terms of the parent's income, and not the income generated by a trust.

Father presented no evidence that the amount of taxes and fees paid was unreasonable, or what...

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