WARDWELL (CLAPP) v. Clapp, 97-233.

Decision Date15 July 1998
Docket NumberNo. 97-233.,97-233.
Citation720 A.2d 862
PartiesElizabeth WARDWELL (CLAPP) v. Michael CLAPP.
CourtVermont Supreme Court

Before AMESTOY, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ., and WESLEY, Superior Judge Specially Assigned.

ENTRY ORDER

Defendant appeals from a family court order making certain short-term adjustments in his spousal maintenance obligation, directing payment of arrearages, providing remedies in the event of his failure to meet the maintenance obligations, and denying his motion for modification under 15 V.S.A. § 758. Defendant claims the family court erred by (1) considering defendant's subjective intent in making employment choices following an unexpected job termination, (2) referencing his current spouse's income in the context of defendant's ability to meet maintenance obligations to his former spouse, and (3) ordering garnishment according to the terms of a previously issued, and allegedly invalid, family court garnishment order. We affirm.

The parties were divorced in 1993, and defendant was ordered to pay plaintiff maintenance in the amount of $24,000 per year. This Court affirmed the divorce and maintenance order. See Clapp v. Clapp, 163 Vt. 15, 653 A.2d 72 (1994). Pursuant to a stipulation of the parties, the payments were to be made in amounts of $500 on the first of each month and quarterly payments of $4,500 on March 31, June 30, September 30, and December 31.

At the time of the divorce defendant was a partner in a Burlington law firm, with an annual income of between $150,000 and $200,000. On January 1, 1996, the law partnership was converted to a corporation, and defendant became a shareholder. By unanimous vote of the firm's other shareholders, defendant's employment was terminated effective February 1, 1996. Defendant had been advised that other shareholders were concerned about his performance, but he was surprised by his abrupt termination. The court found that he would have preferred to remain with the firm. The value of defendant's interest as a principal in the firm was not settled at the time of his departure.

Following his termination, defendant worked as a sole practitioner for two months. The court found that defendant's efforts to find employment at a salary comparable to his earnings from his old firm "were minimal." In April 1996, he formed a new law firm with two other attorneys. Under his agreement with the firm's new partners, defendant earned $50,000 per year, with no provision for a share of the firm's profits. The court found that defendant and his new wife had a combined income of $83,000 per year.

The court made extensive findings regarding defendant's "sporadic" record of paying spousal maintenance and the contentiousness of the issue between the parties, even after a settlement stipulation in December 1995. Defendant failed to make a $4,500 quarterly payment due March 31, 1996, and thereafter plaintiff filed a motion for contempt. In response defendant moved for modification of the 1993 maintenance order, based on the assertion that his income in the new firm fell considerably below his prior income level.

After a hearing the court found defendant in contempt for a spousal maintenance arrearage of $5,500. The court also found that defendant had not maintained payments on a second mortgage on the marital home, as required under the 1993 order. The court ordered defendant to pay the maintenance and second mortgage arrearages by July 8, 1996 or face incarceration; if the sums were not paid, the court indicated it would enter an order of trustee process, or garnishment, directing that payments be made directly from funds due to defendant for his interest in his former law firm, once the payment amount had been determined.

On the afternoon of July 8, 1996, plaintiff's attorney prepared an affidavit stating that defendant had not made the required payments, and on that basis the court issued a garnishment order the next day. It was later revealed, however, that defendant had actually made the payments late in the day of July 8. There was no dispute of that fact, and thus a mittimus on the garnishment order was not subsequently delivered to defendant.

After a hearing on defendant's modification petition, the court issued an order in November 1996, and an amended order of May 5, 1997, the subject of this appeal. In its May 5, 1997 order the court denied defendant's petition for modification. The grounds for its decision was that, in the wake of his unexpected termination, defendant had shown only "minimal" effort to find employment that would allow him to meet his obligations. The court nonetheless reduced defendant's required bi-weekly payment to $500, upon which schedule defendant would accrue arrearages of $916 per month. As of January 2, 1998, defendant was ordered to pay $923 every two weeks in spousal maintenance. The court further required that any arrearages occurring from March 1, 1996 until the date of the "buyout" payment by his former law firm would be subject to the court's garnishment order of July 9, 1996, and that any arrearages accrued from that date were to be paid in full no later than December 31, 1998. Defendant appeals.

I.

Defendant argues on appeal that the court erroneously denied his motion for modification. He claims the court was wrong to rely on Giesner v. Giesner, 319 N.W.2d 718 (Minn.1982), for the proposition that the court should examine not only the circumstances under which defendant's prior employment terminated, but also defendant's subjective intent in choosing to start a new law firm at a reduced salary. The genesis of defendant's argument is our decision in Lowery v. Lowery, 156 Vt. 268, 274, 591 A.2d 81, 84-85 (1991), in which we stated:

Other courts have made adjustments in an existing maintenance order to match the obligor's temporarily changed circumstances.. . . Giesner v. Giesner, 319 N.W.2d 718, 720 (Minn.1982)(where new business startup may have resulted in a temporary reduction in income, court should consider, among other alternatives, reduction or deferral of alimony).

Defendant claims that Vermont caselaw does not support examination of a petitioner's subjective intent. He contends that, at a minimum, the court should have given prior warning that defendant's subjective intent would be at issue, that he appeared at the hearing unprepared to present such evidence, and thus the court's findings are unfair and in error. He specifically challenges (1) the court's finding that his "efforts to find employment at a salary comparable to his earnings from his old firm were minimal"; (2) the court's suggestion that he purposely set his new salary at $50,000, the same amount defendant believed his former spouse earned; and (3) the court's finding that defendant viewed his changed employment circumstances as "an opportunity to rid himself of a burden he never believed he should have had to take on in the first place." We find defendant's claim to be without merit.

Under 15 V.S.A. § 758, "a real, substantial, and unanticipated change of circumstances" must be shown in order for a court to modify spousal maintenance. The burden for showing a change in circumstance is a heavy one, and lies with the party seeking the modification. See Gil v. Gil, 151 Vt. 598, 599, 563 A.2d 624, 625 (1989). Vermont cases clearly show that courts may consider the reasons underlying post-divorce employment decisions that reduce an obligor's actual income. See Shaw v. Shaw, 162 Vt. 338, 340, 648 A.2d 836, 838 (1994) (a voluntary reduction in income does not constitute a change of circumstances). This inquiry necessarily focuses on — and indeed begins with — the obligor's subjective intent in making the change. See Cliche v. Cliche, 140 Vt. 540, 542, 442 A.2d 60, 61-62 (1982) (reduction of alimony not justified where defendant terminated one of his jobs voluntarily because he wanted more time to himself); Miller v. Miller, 124 Vt. 76, 81, 197 A.2d 488, 492 (1964) ("Such loss of income, however, the findings make clear, is due to his own volition."); cf. Kohut v. Kohut, 164 Vt. 40, 44, 663 A.2d 942, 944-45 (1995) (in award of maintenance, court imputed income at former salary level where defendant voluntarily terminated employment and became underemployed as real estate salesman). Courts in others jurisdictions similarly look to the subjective intent of the party seeking modification. See Reece v. Reece, 22 Va.App. 368, 470 S.E.2d 148, 151 (Va.Ct.App.1996) (following unexpected termination of employment, if spousal maintenance obligor's reduced income was product of voluntary underemployment, court would deny modification and instead impute income); Pope v. Pope, 251 Neb. 773, 559 N.W.2d 192, 196...

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3 cases
  • Mayville v. Mayville
    • United States
    • United States State Supreme Court of Vermont
    • 21 octobre 2010
    ...a heavy one, and lies with the party seeking the modification,” [12 A.3d 504] in this case, husband. Wardwell v. Clapp, 168 Vt. 592, 594, 720 A.2d 862, 864 (1998) (mem.). We evaluate whether a change is substantial “in the context of the surrounding circumstances,” Braun v. Greenblatt, 2007......
  • Weaver v. Weaver
    • United States
    • United States State Supreme Court of Vermont
    • 23 juin 2017
    ...if the trial court finds that the obligor did not voluntarily render him or herself unable to pay. See Wardwell (Clapp) v. Clapp, 168 Vt. 592, 594-95, 720 A.2d 862, 864 (1998) (mem.) (collecting cases and concluding that "inquiry necessarily focuses on—and indeed begins with—the obligor's s......
  • Weaver v. Weaver, 16–306
    • United States
    • United States State Supreme Court of Vermont
    • 23 juin 2017
    ...court finds that the obligor did not voluntarily render him or herself unable to pay. See Wardwell (Clapp) v. Clapp, 168 Vt. 592, 594-95, 720 A.2d 862, 864 (1998) (mem.) (collecting cases and concluding that "inquiry necessarily focuses on—and indeed begins with—the obligor's subjective int......

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