Viskup v. Viskup, 87-333

• Decision Date: 15 July 1988
• Docket Number: No. 87-333,87-333
• Citation: 150 Vt. 208,552 A.2d 400
• Parties: Diana M. VISKUP v. John H. VISKUP.
• Court: Vermont Supreme Court

Page 400

552 A.2d 400

150 Vt. 208

Diana M. VISKUP v. John H. VISKUP.

No. 87-333.

Supreme Court of Vermont.

July 15, 1988.

Richard F. Taylor, Middlebury, for plaintiff-appellee.

Ouimette & Runcie, Vergennes, for defendant-appellant.

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

GIBSON, Justice.

Defendant appeals an order of the Addison Superior Court denying his motion to modify the divorce decree for an award of child support. We reverse.

I.

The parties were divorced in 1985. The trial court awarded custody of the two minor children to defendant, but plaintiff was not required to pay any child support. In 1986, defendant filed a motion to modify the final divorce order and to request an award of child support. Defendant asserted unanticipated change in circumstances, alleging in part that plaintiff, unemployed at the time of the initial divorce decree, was now employed. The trial court denied defendant's motion, and this decision was upheld by this Court in Viskup v. Viskup, 149 Vt. 89, 539 A.2d 554 (1987). ¹

On April 1, 1987, sweeping changes in the child support laws went into effect in this state. See 15 V.S.A. §§ 650-663. On May 27, 1987, defendant again filed a motion to modify the final divorce decree, requesting an award of child support. The trial court dismissed defendant's motion, stating that 15 V.S.A. § 660 (the new law) provided for modification of child support orders only when there has been a prior award of child support. As an alternative basis of support for its decision, the court stated that there was then pending before this Court an appeal pertaining to precisely the same issue as raised by defendant (defendant's first appeal to this Court, Viskup, 149 Vt. 89, 539 A.2d 554).

Defendant appeals this latest denial of his request for an order of child support. First, defendant argues that the trial court erred by holding that 15 V.S.A. § 660 allowed modification of a child support order only when there had been a prior award of child support. Second, defendant contends that the trial court erred in determining that defendant's motion was identical to the appeal then pending before this Court. Finally, defendant requests that, should this Court remand the cause to the trial court, we instruct the court that any child support awarded should be made retroactive under the new guidelines to the date this motion was first heard by the trial court.

II.

Defendant brought this motion pursuant to 15 V.S.A. § 660, which provides in pertinent part that:

(a) On petition of either parent or any other person to whom support has previously been granted, or any person previously charged with support, and upon a showing of a real, substantial and unanticipated change of circumstances, the court may annul, vary or modify a child support order, whether or not the order is based upon a stipulation or agreement.

(b) A child support order, including an order in effect prior to adoption of the support guideline, which varies more than 15 percent from the amounts required to be paid under the support guideline, shall be considered a real, substantial and unanticipated change of circumstances.

The trial court interpreted these sections as providing for modification of child support orders only when there previously has been an award of child support. We believe the court took a much too narrow approach in construing this statute.

If the meaning of a statute is plain on its face, this Court must enforce it in accordance with its express terms. Montgomery v. Brinver Corp, 142 Vt. 461, 463, 457 A.2d 644, 645 (1983). The plain meaning rule, however, like all other rules of statutory construction is no more than an aid in this Court's efforts to discern legislative intent. Hill v. Conway, 143 Vt. 91, 93, 463 A.2d 232, 233 (1983). The fundamental rule, underlying all other rules of statutory construction, is that this Court must give effect to the intent of the Legislature. In re A.C., 144 Vt. 37, 42, 470 A.2d 1191, 1194 (1984); see also State v. Desjardins, 144 Vt. 473, 475, 479 A.2d 160, 161 (1984) (rules of statutory construction are not talismans; they are merely aids to be disregarded in appropriate cases). We find that the intent evidenced by the Legislature in enacting these new laws supports defendant's assertion that a motion for modification may be made even when there previously has been no award of child support.

Under the new child support laws, the trial court "shall require payment of a nominal support amount" from noncustodial parents even though their income falls below the lowest gross income figure in the support guidelines or below the self-support reserve. 15 V.S.A. § 656(b). Thus, it is clear that the Legislature in enacting the new child support laws intended to require at least a nominal child support award in all cases. ² Since no one is to be exempt from the obligation to pay child support, it follows that the Legislature intended § 660 to apply in all cases as well. Construing § 656(b) in conjunction with § 660(a) and (b) reveals a legislative intent to allow modification of a child support order whether or not there previously had existed an award of child support. See Emmons v. Emmons, 141 Vt. 508, 512, 450 A.2d 1113, 1115 (1982) ("[S]tatutes dealing with the same subject matter should be construed with reference to each other as parts of one system."). Further, the remedial purpose for which the legislation was enacted, see 15 V.S.A. § 650, requires a liberal construction so as to give full force and effect to the intentions of the Legislature. See Grenafege v. Department of Employment Security, 134 Vt. 288, 290, 357 A.2d 118, 120 (1976). We conclude, therefore, that the Legislature intended the modification of support section of the new law to apply even where there had been no previous award of child support. See In re A.C., 144 Vt. at 42, 470 A.2d at 1194 (Court will construe statute so as to give effect to the purpose for which it was enacted). ³

III.

Having determined that the primary basis on which the trial court rested its decision was incorrect, we must now examine the court's alternative basis: that defendant had raised the same issue at the hearing as was then pending before this Court. While defendant did in fact have an appeal pending before this Court on the issue of child support, the child support issue before the trial court was based upon the new child support law, while the issue on appeal to this Court dealt with the modification of a divorce decree under the previous law. The difference lay in the fact that under the previous law, defendant was not necessarily entitled to an award of child support; the decision not to make such an award at the time of the divorce was within the sound discretion of the trial court, and defendant failed to prove that there had been a real, substantial and unanticipated change in circumstances. Viskup, 149 Vt. at 91-92, 539 A.2d at 556-57.

The law in effect herein, however, provides that a child support order which varies by more than 15 percent from the child support guideline, "including an order in effect prior to adoption of the support guideline," would constitute "a real, substantial and unanticipated change of circumstances," thus supporting a motion for modification of the child support order. 15 V.S.A. § 660(b). The change in the applicable law created an issue distinct from the child support issue previously before this Court. The doctrines of collateral estoppel and res judicata do not apply to new issues and claims that did not exist when defendant filed his first motion for modification. See Berisha v. Hardy, 144 Vt. 136, 138, 474 A.2d 90, 91 (1984) (examination of the effects of doctrines of...