Miller v. Miller
| Decision Date | 03 December 1963 |
| Docket Number | No. 1955,1955 |
| Citation | 197 A.2d 488,124 Vt. 76 |
| Court | Vermont Supreme Court |
| Parties | Sheldon H. MILLER v. Marjorie J. MILLER. |
W. Edson McKee, Montpelier, for petitioner.
Richard E. Davis and Stephen B. Martin, Barre, for petitionee.
Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.
The parties to this action were divorced by a decree of the District Court of Virgin Islands, District of St. Thomas and St. John, on Oct. 24, 1960. In the decree of divorce obtained by the petitioner the custody of the three minor children of the parties was awarded to the petitionee, and the petitioner was ordered to pay to the petitionee the sum of $75.00 per week for the care and support of said children during their minority.
This Court, in a previous appeal by this petitionee, held, in essence, that under the provisions of 15 V.S.A. § 758 the Virgin Islands District Court decree was not a final judgment as to support payments, with both parties as well as the minor children being resident in this state. The opinion stated that the order for support payments was subject to a new order by the courts in this state upon a showing of a change in circumstances or conditions subsequent to the entry of the original decree. Miller v. Miller, 123 Vt. 221, 186 A.2d 93.
The petitioner brought his petition to the Washington County Court to modify and revise the divorce decree of the Virgin Islands District Court, to grant him a reduction in the weekly payments which, under that decree, he was ordered to pay the petitionee for the support of his three minor children. In a previous appeal to this Court from a dismissal of the petition we reversed the judgment granting the motion to dismiss and remanded the cause. Miller v. Miller, 123 Vt. 221, 186 A.2d 93. The present appeal, by the petitionee, is from a judgment order by the Washington County Court granting the petition for modification of the support order of the Virgin Islands Court and reducing the amount of payments from petitioner to petitionee for the support of the minor children.
While the words 'modify' and 'modification' are used in the petition and in this opinion it should be understood that in a technical sense one state cannot directly modify the decree of a sister state relating to child support. However, if there is personal jurisdiction of the parties, as here, a state may enter a new order for child support, which supersedes in that respect, the decree of the foreign state, if a substantial change in circumstances is established. Durfee v. Durfee, 293 Mass. 472, 200 N.E. 395. See 17A Am.Jur. Divorce and Separation, p. 165; 27B C.J.S. Divorce § 398, p. 916.
The Washington County Court, after a hearing on the petitioner's motion to modify the order for payment of support of the Virgin Islands Court, made a judgment order reducing the amount of such payments from the petitioner to the petitionee from $75.00 per week to the sum of $66.00 per week.
The present appeal by the petitionee is based upon two grounds. The first ground is that the judgment order is not supported by the findings of fact made by the lower court.
The basis of the second ground of the appeal is that the lower court erred in excluding evidence offered by the petitionee to disclose petitioner's intent to return to his Vermont residence once he had obtained a divorce decree from the Virgin Islands Court.
The only question presented to us by the petitionee's appeal from the judgment order is whether the judgment order is supported by the facts found. Graham v. Slayton, 122 Vt. 425, 431, 175 A.2d 809; In re Estate of Boynton, 121 Vt. 98, 100, 148 A.2d 115.
The change of circumstances alleged by petitioner's motion to modify the support order in the Virgin Islands' decree was, 'That the circumstances as concerns his financial condition have changed considerably and that he is now in need of relief from the Order of Payment as set forth in said Decree.'
The lower court found that the parties separated in the early part of 1959, and under a separation agreement the petitioner agreed to pay the petitionee the sum of $75.00 per week for the support of Stephen, born in 1952, Ricker, born in 1955, and Kenneth, born in 1958, the three children of the parties.
At the time of separation, the petitioner was employed as an engineer with the Vermont Highway Department at a base pay of $115.50 per week. He was also doing outside architectural and art work for which he received about $1000.00 in 1959, with the income from this outside work varying to greater and lesser amounts in other years.
Petitioner went to the Virgin Islands in June, 1960 and returned to Vermont in November, 1960. While there he was employed at a salary of $124.40 per week and received his room and board as recompense for other employment. Upon his return to Vermont, he was again employed by the State Highway Department and now receives a salary of $134.00 per week. After deductions, his present 'take home' pay is $108.00 per week. After his payment of $75.00 per week to the petitionee, plus a $12.00 weekly payment on automobile, he has $21.00 per week left from his salary.
The lower court found that the petitioner is able to continue the outside work that he has done in the past to supplement his income but 'does not want to so he can spend more time with his family.'
In November, 1963, the petitioner will have $35.00 per month deducted from his pay under the State Retirement Fund. Petitioner takes the income tax deductions for the support of the three minor children.
The petitioner was married to his present wife on November 13, 1960, and she is the mother of two children by a previous marriage. His present wife is employed and earns around $65.00 per week.
The findings disclose that the petitionee's expenses for maintaining the family have increased since the date of the divorce. She now has weekly expenses in connection with the support of the three children of the couple of $155.22 per week. The petitionee is employed at a base pay of $95.50 per week, with a 'take home' pay of $66.73.
The ultimate finding of fact by the lower court, upon which the judgment order was based, is 'The petitionee requires not less than $22.00 each week per child, and this amount, considering all of the facts and circumstances, is fair and reasonable.'
In order to justify a modification of a support order, just as in a proceeding to modify a custody...
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Ohland v. Ohland, 340-80
...making support payments, but that was the practical effect of his actions nevertheless. It cannot be condoned. See Miller v. Miller, 124 Vt. 76, 81, 197 A.2d 488, 492 (1963). He cannot gain such an unconscionable advantage through his own misconduct. The requirement is without Turning to th......
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