Jacobs v. Jacobs, 82-428

• Decision Date: 03 February 1984
• Docket Number: No. 82-428,82-428
• Citation: 144 Vt. 124,473 A.2d 1165
• Parties: Dawn L. JACOBS v. Arthur F. JACOBS, III.
• Court: Vermont Supreme Court

Page 1165

473 A.2d 1165

144 Vt. 124

Dawn L. JACOBS v. Arthur F. JACOBS, III.

No. 82-428.

Supreme Court of Vermont.

Feb. 3, 1984.

William M. McCarty, Brattleboro, for plaintiff-appellant.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

BILLINGS, Chief Justice.

Plaintiff appeals from an order of the Windham Superior Court modifying an original divorce decree rendered on June 23, 1980. She claims three errors: (1) that the evidence does not support the findings of fact and conclusions of law; (2) that the court failed to make a finding relative to the original decree's order respecting insurance and medical payments; and (3) that the court erred in not holding a hearing on her specific V.R.C.P. 59 and 60(b) motions.

The original 1980 divorce decree incorporated a stipulation of the parties wherein defendant agreed to pay $35.00 weekly for the support of their minor child. In addition, defendant agreed to maintain health insurance coverage for the child as well as provide for one-half of all uninsured medical and dental expenses. Except for a payment of $297.59 made to plaintiff in September, 1980, in response to a contempt order issued by the Windham Superior Court, defendant has not complied with the original order.

In June, 1982, defendant filed a motion for modification of the original support order, citing a substantial change in his financial circumstances. Plaintiff filed a petition for contempt, asking that defendant be found in willful contempt of the court's original order of June 1980. After hearing both defendant's motion for modification and plaintiff's petition for contempt, the court reduced defendant's support payments based on a finding that his financial circumstances had changed. Although defendant voluntarily left his employment in 1980, the court found that after unsuccessfully seeking employment out-of-state, defendant was now self-employed, at a reduced level of income, in a Brattleboro radiator repair business. The court further found that defendant was in arrearages in the amount of $1,470.00 based on the original support payments, but that he was not in contempt because he had an inability without fault to obey the original support order. The court ordered defendant to pay $15.00 weekly support and $10.00 a week on the arrearage until fully paid.

Plaintiff moved for relief from judgment pursuant to V.R.C.P. 59 and V.R.C.P. 60(b), claiming that the evidence did not support the court's finding of a change in defendant's financial circumstances. Without hearing, the court amended its order, raising the support payments to $20.00 weekly for one year, and thereafter, to $25.00 weekly.

This Court will not set aside findings of fact unless, taking the evidence in the light most favorable to the prevailing party and excluding the effects of modifying evidence, they are clearly erroneous. V.R.C.P. 52; Cliche v. Cliche, 140 Vt. 540, 541, 442 A.2d 60, 61 (1982). A court may modify an original divorce decree if the petitioner demonstrates a substantial change of circumstances since the time of the original decree. Id. at 542, 442 A.2d at 61. Where the original decree incorporated a stipulation of the parties, the petitioner bears the burden of showing why he or she should be excused from a presumptively fair, formal and binding promise to perform. Braine v. Braine, 127 Vt. 211, 213-14, 243 A.2d 797, 799 (1968). A modification of an original order is proper if the petitioner has proven unanticipated, intervening circumstances, fraud, impossibility of performance or unconscionable advantage. Cliche, supra, 140 Vt. at 542, 442 A.2d at 61. Further, inability without fault to obey an order of court is a valid defense to a charge of contempt. Ohland v. Ohland, 141 Vt. 34, 41, 442 A.2d 1306, 1310 (1982).

In the case at bar, the change of financial circumstances claimed by defendant was not intervening and unanticipated; rather, defendant freely admitted...