Shaw v. Shaw

• Decision Date: 08 July 1994
• Docket Number: No. 93-399,93-399
• Citation: 162 Vt. 338,648 A.2d 836
• Parties: Dorothy M. SHAW v. Normand J. SHAW.
• Court: Vermont Supreme Court

Page 836

648 A.2d 836

162 Vt. 338

Dorothy M. SHAW v. Normand J. SHAW.

No. 93-399.

Supreme Court of Vermont.

July 8, 1994.

John C. Gravel of Bauer, Anderson, Gravel & Abare, Burlington, for plaintiff-appellee.

John J. Bergeron and Norman C. Smith of Bergeron, Paradis, Fitzpatrick & Smith, Burlington, for defendant-appellant.

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

GIBSON, Justice.

Husband appeals from an order of the Chittenden Family Court denying his motion for termination of rehabilitative maintenance, but adjusting the payment schedule in light of his new employment and lower income. We affirm.

The parties were divorced in 1991, pursuant to a stipulation providing that husband would pay wife $500 per month for a period of ten years as rehabilitative maintenance. Husband was then earning $44,000 a year at IBM, where he had been employed for twenty-seven years.

About ten months after the divorce, husband was fired from his job, due in part at least to his unauthorized purchase of a pickup truck from an IBM vendor about eight years before the divorce. Husband was unemployed for about nine months, during which time the court granted his motion to suspend maintenance payments. After he obtained a job as a car salesman, wife moved to enforce the payment of maintenance, and husband moved to modify the original order on grounds that he could not afford to make the required payments.

At the time of the hearing on the motions, husband had an average weekly gross income of $278, or about $1,200 per month. He testified that he could not afford to live on his own, and was living with his parents paying room and board. At the time of the hearing, wife had a monthly income of approximately $1438, consisting of $836 in unemployment compensation, $452 for taking care of a granddaughter, and about $150 from a part-time sales job.

The court found that husband could not meet a $500-per-month payment obligation and ordered as follows:

As of this date, the defendant is current in his payments, not counting the period during which his payments have been suspended. The plaintiff agrees that he has paid $7,500 to date, and we so find.

We decline to modify his maintenance obligation. He was fired from IBM for wrongdoing of a serious nature. One who causes himself to lose his job cannot, in this court at least, walk away from a maintenance obligation. His obligation is for $500 per month for 10 years. That order ... shall remain in full force and effect. However, the defendant's obligation will remain suspended until he earns $1000/month. All net earnings over $1,000 per month shall be paid toward his maintenance obligation ($60,000, less the amounts paid to date) until the full maintenance obligation is paid in full.

This appeal followed.

Husband argues that the trial court erred in declining to vacate his maintenance obligation because it found that he was fired for "wrongdoing of a serious nature." According to husband, the court ruled, in effect, that he had become unemployed voluntarily and was therefore not eligible to seek modification. Voluntary termination of employment without good reason by an obligor spouse will disqualify the spouse for modification. Jacobs v. Jacobs, 144 Vt. 124, 127, 473 A.2d 1165, 1167 (1984). Wrongdoing that results in diminished income may fall within the category of voluntary termination of employment and bar modification of maintenance on grounds of changed circumstances. See, e.g., Waskin v. Waskin, 484 So.2d 1277, 1278-79 (Fla.Dist.Ct.App.1986) (modification not warranted where adverse impact on former husband's financial condition was caused by publicity and expense of defending against criminal charges resulting from voluntary act of seeking to hire someone to murder former wife); Noddin v. Noddin, 123 N.H. 73, 455 A.2d 1051, 1053-54 (1983) (modification not warranted where husband was fired for stealing trade secrets from employer).

We agree with husband that the wrongdoing in this case would not support a conclusion that his loss of employment was voluntary. The firing came after the divorce, but was triggered by events that had occurred eight years earlier. There was no evidence that, at the time of the divorce, either party had any reason to believe husband would lose his job because of his prior actions.

Wife contends that because husband was under investigation a year before the divorce for alleged criminal activities, the subsequent termination was not unanticipated within the meaning of 15 V.S.A. § 758. She contends that "the facts as found by the trial court" reflect that the termination was anticipated, and points to husband's testimony that the parties had discussed the possibility of his losing his job as a result of the investigation. But the criminal investigation ended before the parties entered into their stipulation, and the testimony does not suggest that the amount of maintenance determined through negotiation was affected in any way by the possibility of a later job loss. Cf. Chaney v. Chaney, 145 Ariz. 23, 699 P.2d 398,...