Towne v. Towne

• Decision Date: 15 July 1988
• Docket Number: No. 87-236,87-236
• Citation: 150 Vt. 286,552 A.2d 404
• Parties: Donna F. TOWNE v. John L. TOWNE.
• Court: Vermont Supreme Court

Page 404

552 A.2d 404

150 Vt. 286

Donna F. TOWNE v. John L. TOWNE.

No. 87-236.

Supreme Court of Vermont.

July 15, 1988.

Motion for Reargument Denied

Aug. 23, 1988.

George E. Rice, Jr., Montpelier, for plaintiff-appellee.

John L. Towne, Montpelier, pro se.

Before ALLEN, C.J., PECK, GIBSON and DOOLEY, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

GIBSON, Justice.

Defendant appeals an April 3, 1987, order of the Washington Superior Court, raising a variety of issues. We affirm in part, but remand for the trial court to determine the appropriate effective date for a reduction in defendant's child support payments.

On August 20, 1987, this Court remanded the cause to the trial court for a hearing on defendant's visitation rights. On September 8, 1987, defendant filed a motion to amend his child support payments. Following hearings on October 30, 1987, and December 1, 1987, the trial court denied defendant's request for specific visitation rights, and reduced defendant's child support payments. The trial court found that defendant went on disability leave at half pay on August 28, 1987, and that his income continued at this rate until he was placed on disability retirement at an even lesser rate on November 24, 1987. The court, by oral order from the bench issued at the close of the hearing on December 1, 1987, ordered a reduction in defendant's child support payments effective October 30, 1987, until November 24, 1987, when his support payments were further reduced to reflect his reduced disability pension benefits.

The issue presented is apparently one of first impression in this state: may a court order a retroactive modification in child support, and if so, what date may the court determine to be the effective date for retroactive modification of the support payments. The controlling statute, 15 V.S.A. § 660, is silent on this question, and there does not appear to be any relevant statutory history.

While this state has no apparent precedent, a number of other states have squarely addressed this issue. The various jurisdictions are divided, however. Compare, e.g., Sexton v. Sexton, 32 Ohio App.2d 344, 349, 291 N.E.2d 542, 545 (1971) (court may only modify support payments prospectively), with, e.g., Casterline v. Burden, 560 S.W.2d 499, 501-02 (Tex.Civ.App.1977) (allowance of retroactive modification of support obligations to the date of filing of the motion to modify the payments). We find the latter line of cases to be more persuasive for the following reason:

If the order increasing [or decreasing] the obligation were required to be prospective from the date of its entry, then the party owing the support obligation [or the party to whom such obligation is due] could by dilatory tactics postpone his obligation to pay increased [or decreased] support almost indefinitely, regardless of how circumstances might have changed. Such a result would defeat the purpose of the changed circumstances rule.

Trezevant v. Trezevant, 403 A.2d 1134, 1137 (D.C.1979) (footnote omitted). Cf. Cyrus v. Mondesir, 515 A.2d 736, 738-39 (D.C.1986) (interpretation of statute so as to allow retroactive child support awards for children born out of wedlock in order to bar "an incentive for men to avoid their child support obligations for some period of time by delaying the process of adjudicating paternity."). We find this rationale persuasive and hold that a modification of a child support obligation may be ordered to take effect retroactively. ^*

As to the appropriate effective date for such retroactive modification, the published cases that address the issue generally hold that modification may be allowed as of any reasonable date on or after the date of filing of the motion to amend the support order, within the sound discretion of the trial court. See, e.g., McArthur v. McArthur, 106 So.2d 73, 76 (Fla.1958); Cole v. Cole, 44 Md.App. 435, 448, 409 A.2d 734, 742-43 (1979); Harris v. Harris, 259 N.Y. 334, 336-37, 182 N.E. 7, 8 (1932). But see, e.g., Armstrong v. Armstrong, 15 Cal.3d 942, 946, 544 P.2d 941, 943, 126 Cal.Rptr. 805, 808 (1976) (child support modification orders may be enforced only prospectively). We believe that sound policy considerations support the date of filing of a motion to modify as the earliest date for making retroactive modifications of such obligations. It is a readily discernible date which will place the other party on notice that a change in support may be forthcoming, and it eliminates any incentive to delay a resolution of the dispute for modification of support payments.

The date of filing is not necessarily the only date to which retroactive modification could apply, however.

[G]iven that the parties' circumstances may change further before a hearing on the motion can be held, we believe that any reasonable date on or after the filing of the motion may be chosen as the effective date of the order, and that this choice should be left to the sound discretion of the trial judge. Accord, Martindell v. Martindell, [21 N.J. 341, 355, 122 A.2d 352, 359 (1956) ]; See Fainberg v. Rosen, [12 Md.App. 359, 387, 278 A.2d 630, 635 (1971) ].

Trezevant, 403 A.2d at 1138. We concur with this approach. The effective date for any modification in support should be left to the sound discretion of the trial court, because it is most familiar with the often complicated history of the case and, thus, better able to make such a determination. See Belanger v. Belanger, 148 Vt. 202, 204, 531 A.2d 912, 914 (1987) (function of trial court is to sift through the...