Grimes v. Grimes, 92-016

• Decision Date: 06 November 1992
• Docket Number: No. 92-016,92-016
• Parties: Beverly GRIMES v. Keith GRIMES.
• Court: Vermont Supreme Court

Page 211

621 A.2d 211

159 Vt. 399

Beverly GRIMES v. Keith GRIMES.

No. 92-016.

Supreme Court of Vermont.

Nov. 6, 1992.

Motion for Reargument Denied December 7, 1992.

P. Scott McGee, Hershenson, Carter, Scott, McGee & Gray, Norwich, for plaintiff-appellant.

Tavian Mayer and Christopher C. Cassidy, Law Clerk (On the Brief), South Royalton, for defendant-appellee.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

Plaintiff Beverly Grimes appeals from the Windsor Family Court decision granting the motion of defendant Keith Grimes to modify child support payments. She also claims the court erred in striking a provision from a stipulation between the parties, incorporated into a 1987 court order, that waived the application of 15 V.S.A. § 660(b) with respect to future modifications of child support. We affirm.

Plaintiff and defendant were divorced on June 3, 1985. Defendant was ordered to pay child support for the two minor children in the amount of $225 per week, to be increased annually by 5% to reflect increases in the cost of living. Payment disputes arose, leading to a contempt motion by plaintiff and a request to reduce the child support amount by defendant. On November 11, 1987, in settlement of the disputes, the parties entered into a stipulation with the following terms: (1) defendant acknowledged that under the previous order, with its cost-of-living-increase provision, he owed $260 per week in child support; (2) the parties agreed to recharacterize the obligation as $175 per week in child support and $75 per week in maintenance; (3) both of these amounts would be increased by 5% annually; (4) the accrued arrearage would be paid according to a specified schedule; and (5) both parties waived and released any future right to modification of the child support and maintenance award under 15 V.S.A. § 660(b).

The statute, 15 V.S.A. § 660(b), had become effective on April 1, 1987, and provided that any child support amount which deviated by more than 15% from the amount calculated under the applicable child support guidelines "shall be considered a real, substantial and unanticipated change of circumstances." ¹ The presence of a real, substantial and unanticipated change of circumstances is grounds for modification of a child support order. 15 V.S.A. § 660(a). On December 11, 1987, the Windsor Superior Court entered a judgment order, incorporating the terms of the stipulation. Based on the incomes of the parties, the child support amount defendant agreed to pay was more than 10% in excess of that calculated under the applicable child support guideline. ²

Payment disputes arose again, and in November of 1990 plaintiff again moved for contempt, alleging that defendant was more than $3000 in arrears and had unilaterally lowered his payments to $150 per week. In February 1991, defendant again responded with a motion to modify, alleging that reductions in his income constituted sufficiently changed circumstances to justify the reduction. These motions were heard on October 1, 1991. On November 15, 1991, the Windsor Family Court issued an order reducing the child support award to $155 per week and the maintenance award to $45 per week, both amendments retroactive to February 1991. The court also established an arrearage amount, set a schedule for its payment, ordered that any further modifications would be based on the child support guidelines, and established a civil penalty for tardy payment. The court also struck from the order the provision prohibiting modification based on 15 V.S.A. § 660(b). It relied, however, on the reduction in defendant's income and the increase in plaintiff's income as grounds for modification, not the deviation from the guidelines recognized by § 660(b).

On appeal, plaintiff raises four issues: (1) the changes in the incomes of the parties did not amount to a real, substantial and unanticipated change in circumstances warranting modification of the child support amount; (2) the agreement that 15 V.S.A. § 660(b) cannot be used as grounds for modification is valid and should not have been struck; (3) the decision to modify the 1987 order was an abuse of discretion, particularly because the recharacterization of part of the payment as maintenance was continued; and (4) the court erred in failing to award plaintiff all of her legal fees.

We begin with the second issue because we find it to be determinative of the first. That is, if 15 V.S.A. § 660(b) applies to this proceeding, it is undisputed that it would provide the change of circumstances needed for modification of the award. Thus, if the section applies, we do not have to decide whether the findings with respect to the incomes of the parties were sufficient to allow the court to conclude that changed circumstances were present. ³

The child support guidelines were adopted to ensure adequate child support orders, eliminate discrepancies in awards between children in similar circumstances and increase the efficiency of child support adjudication. See Ainsworth v. Ainsworth, 154 Vt. 103, 106, 574 A.2d 772, 774-75 (1990). They are embodied in tables, promulgated by the Secretary of Human Services, reflecting the percentage of the combined parental income that should be spent on the children and an allocation between the parents for the payment of that amount. 15 V.S.A. §§ 654, 656. Consistent with the purposes of the guidelines, the Legislature has required the court to review any parental agreement on child support for adequacy in relation to the guidelines. 15 V.S.A. § 655. As noted above, the Legislature has authorized modification of child support orders where there is a "real, substantial and unanticipated change of circumstances," including where the child support amount varies more than 10% from that calculated under the guidelines. 15 V.S.A. §§ 660(a), (b). The power to modify an order exists "whether or not the order is based upon a stipulation or agreement." 15 V.S.A. § 660(a). The statutes do not specify, however, whether a parental waiver of the right to seek modification pursuant to the statutory standards is effective.

Because the children are the real beneficiaries of child support, the court must protect their interest. Therefore, we have consistently recognized the authority of the court to override the terms of child support agreements. See Frink v. Frink, 128 Vt. 531, 534, 266 A.2d 820, 822 (1970) (divorce stipulation); Padova v. Padova, 123 Vt. 125, 129, 183 A.2d 227, 230 (1962) (antenuptial agreement). We have also recognized that the court's power over child support orders continues through the minority of the children because

the court embodies the public's paramount interest in the care and maintenance of these children, its jurisdiction is of necessity continuing until they reach the age of majority, and its decree, in so far as it touches the children's welfare, is subject to modification.

White v. White, 141 Vt. 499, 503, 450 A.2d 1108, 1110 (1982). The parties cannot withdraw this jurisdiction by agreement. Id.; see also Bradley v. Bradley, 154 Vt. 304, 305, 575 A.2d 190, 191 (1990) (law permits modification of child support regardless of motivation of parties in setting original amount). Finally, we have been unwilling to find a parent's inaction to be a waiver of a child's support rights. Lyon v. Lyon, 143 Vt. 458, 462, 466 A.2d 1186, 1189 (1983).

Although we have not directly addressed the enforceability of parental agreements prohibiting or limiting the power of the court to modify child support in the future, other courts have found such agreements invalid. See, e.g., Lang v. Lang, 252 So.2d 809, 812 (Fla.Dist.Ct.App.1971); In re Support of Burks, 100 Ill.App.3d 700, 703, 56 Ill.Dec. 273, 276, 427 N.E.2d 353, 356 (1981); Phillips v. Phillips, 163 Kan. 710, 712, 186 P.2d 102, 103 (1947); Leonard v. Lane, 821 S.W.2d 275, 278 (Tex.Ct.App.1991); In re Marriage of Studebaker, 36 Wash.App. 815, 817, 677 P.2d 789, 791 (1984). The closest precedent is In re Marriage of Miller, 790 P.2d 890, 892-93 (Colo.App.1990), decided in the state with the child support guidelines most similar to ours. See Ainsworth v. Ainsworth, 154 Vt. at 111, 574 A.2d at 777 (Colorado guideline system closest to that adopted in Vermont). In refusing to enforce an agreement in which the father was awarded child custody on condition that he never seek child support from the mother, the court reasoned that "[s]tatutory provisions may not be modified by agreement of the parties if doing so would violate a public policy expressed in the statute or would affect the rights of the child which the statute was designed to protect." Marriage of Miller, 790 P.2d at 892. It held that the child support guidelines were mandatory, and the agreement could not "preclude or limit the court's authority concerning child support." Id. at 892-93.

The cases from other states are consistent with our precedents and child support statutes. Although the agreement between the parents represented consideration of their interests, it could not conclude the interests of the children. See White v. White, 141 Vt. at 503, 450 A.2d at 1110. Nor could it take away the court's continuing jurisdiction over child support. Id. The guideline system is intended to promote uniform awards that fairly reflect the needs of the children and to this end requires court oversight of child support agreements. We would undercut the statutory policy if we recognized a stipulation that would require us to ignore the extent of deviation from the guidelines.

We must consider, however, plaintiff's argument that the considerations discussed above do not apply in a case where the noncustodial parent is attempting to reduce his child support obligation. In plaintiff's view, the interests of the children demand that we not allow modification to reduce defendant's child support obligation. Although the argument has some superficial appeal, we...