Meyncke v. Meyncke, 08-482.

Docket NºNo. 08-482.
Citation980 A.2d 799, 2009 VT 84
Case DateAugust 03, 2009
CourtUnited States State Supreme Court of Vermont
980 A.2d 799
2009 VT 84
No. 08-482.
Supreme Court of Vermont.
August 3, 2009.

[980 A.2d 800]

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, Associate Justices.

980 A.2d 801

¶ 1. Robert Meyncke appeals from the family court's denial of his motion to modify maintenance and from the trial court's wage-withholding order. We affirm.

¶ 2. The background facts and procedural history of this case are as follows. Robert and Judith Meyncke had been married for twenty-four years when, in October 2007, they were divorced. In the final divorce decree, the family court ordered husband to pay $6,390 per month in maintenance to wife for thirteen years. The court later adjusted the period to fifteen years on wife's motion. At the time of the final divorce decree, husband was earning about $400,000 per year.

¶ 3. In late 2007, husband lost his job, and was not reemployed until April 2008. In May 2008, husband moved to modify spousal maintenance, arguing that the award should be adjusted downward because he expected to earn only about $300,000 per year at his new job. In June 2008, while his motion was still pending, husband unilaterally reduced his maintenance payments to $2,600 per month. Wife subsequently filed a petition for wage withholding. In October 2008, the trial court denied husband's motion to modify, held husband in contempt for failure to pay full maintenance to wife, and ordered that if husband did not become current on his maintenance obligation within thirty days it would garnish husband's wages. The court also awarded wife $6,510 in attorney's fees. Husband filed a timely appeal.

¶ 4. When husband failed to purge himself of contempt within thirty days, the court issued a wage-withholding order requiring husband's employer to withhold the amount of $6,390 per month from husband's wages and pay all amounts withheld to wife. We subsequently granted husband's motion to amend his appeal to include a challenge to the wage-withholding order.

¶ 5. Husband raises one argument with respect to the wage-withholding order, and several arguments with respect to the family court's decision on his motion to modify. We address each of husband's contentions, in turn.

¶ 6. Husband argues that the wage-withholding order violates 15 U.S.C. § 1673(b)(2) because it requires his employer to withhold more than 55% of his bi-weekly pay. This argument presents a pure issue of law which we review de novo. See Smith v. Desautels, 2008 VT 17, ¶ 8, 183 Vt. 255, 953 A.2d 620 (reviewing issues of law de novo).

¶ 7. Section 1673 restricts the garnishment of wages to certain maximum amounts, depending on circumstance. In relevant part, § 1673(b) provides as follows:

(2) The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed—

(A) where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is used), 50 per centum of such individual's disposable earnings for that week ...

(B) . . .

except that, with respect to the disposable earnings of any individual for any workweek, the 50 per centum specified in clause (A) shall be deemed to be 55 per centum ... if and to the extent that such earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the

980 A.2d 802

twelve-week period which ends with the beginning of such workweek.

15 U.S.C. § 1673(b)(2).

¶ 8. The parties agree, and the trial court ruled,1 that the cap applicable to husband's situation is 55%. The court found that, considering his current compensation and expenses, husband's yearly "disposable earnings" amounted to $141,989.88. It therefore reasoned that garnishment of $6,390 per month, amounting to $76,680 per year, was within the 55% allowable under § 1673(b)(2)—$76,680 being approximately 54% of $141,989.88. Husband does not quarrel with the trial court's findings or its math. Rather, husband argues that it was inappropriate for the trial court to order his employer to withhold $6,930 from his pay on a monthly basis because—as he receives approximately two-thirds of his compensation in a year-end bonus2—$6,930 is more than 55% of his monthly earnings. Husband points out that the limits in § 1673(b)(2) are set out by "workweek," and complains that the wage-withholding order, as written, mandates the garnishment of more than 55% of his bi-weekly paycheck.

¶ 9. Whatever the merits of husband's argument, we need not address them here because husband concedes that no more than 55% of his disposable earnings are actually being withheld from each of his paychecks. Instead, husband argues that while he "may be getting [a] reprieve from the illegal order because his employer has refused to violate federal law, [the] specter of an enforcement action or a contempt proceeding certainly places a risk of the order being enforced and [husband] having his wages illegally attached." In light of his employer's compliance, and wife's concession, made in her brief, that only 55% of each of husband's paychecks may be garnished under § 1673(b)(2),3 we fail to appreciate the risk of an enforcement action or contempt proceeding. At any rate, husband remains free to raise § 1673(b)(2) as a defense to any such action or in any such proceeding. In short, husband has failed to show how he was prejudiced by the wage-withholding order, and we therefore have no basis upon which to disturb it. See V.R.C.P. 61 ("no error or defect in any ruling or order ... is ground for ... disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice."); see

980 A.2d 803

also Perry v. Green Mountain Mall, 2004 VT 69, ¶¶ 11-14, 177 Vt. 109, 857 A.2d 793 (applying Rule 61 to an error of law).

¶ 10. Regarding the court's decision on the motion to modify, husband first argues that the family court failed to consider the income, current living situation, or needs of the parties. Specifically, he argues that the court erroneously excluded as irrelevant wife's testimony as to her reasonable needs, and failed to consider husband's ability to pay maintenance based on his current income. Finally, husband challenges the family court's award of attorney's fees to wife.


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