Weaver v. Weaver

• Decision Date: 23 June 2017
• Docket Number: No. 2016-306,2016-306
• Court: Vermont Supreme Court
• Parties: Nicola Weaver v. David Weaver

2017 VT 58

Nicola Weaver v. David Weaver

No. 2016-306

Supreme Court of Vermont

February Term, 2017

June 23, 2017

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Addison Unit, Family Division

Samuel Hoar, Jr., J.

Paul R. Morwood, South Burlington, for Plaintiff-Appellant.

Wanda Otero-Weaver, Lincoln, for Defendant-Appellee.

PRESENT: Reiber, C.J., Dooley, Skoglund and Eaton, JJ., and Cohen, Supr. J., Specially Assigned

¶ 1. EATON, J. Wife, Nicola Weaver, appeals the trial court's order granting a motion filed by husband, David Weaver, to modify his spousal maintenance obligation. Wife argues the trial court erred in three ways: by (1) reducing her spousal support to zero; (2) inaccurately calculating husband's actual living expenses because the court declined to consider husband's current wife's financial support of husband; and (3) allowing a credit for overpayment of spousal maintenance against a child support arrearage. We agree with wife that the trial court erred on these three points of law and therefore reverse and remand.

¶ 2. The parties were divorced in August 2011. At the time of the divorce, they had been married for sixteen years and had four children. Wife was fifty years old and husband was forty-three years old. The trial court that presided over their divorce proceedings ordered husband to pay wife $2916 per month in spousal maintenance and explained that the award was intended to help wife meet her needs, but that it also had a "compensatory aspect" based on the court's finding that "[husband] wouldn't be doing as well as he is unless [wife] was the primary caregiver for the children." The court did not explain how much of the monthly maintenance award constituted the "compensatory aspect." The court ordered husband to pay spousal maintenance "until [husband's] death, [wife's] death or remarriage or her full retirement and commencement of drawing pension payments and any social security to which she may be entitled."

¶ 3. In September 2013, the court granted a motion filed by husband seeking to modify his maintenance obligation because of changed financial circumstances. Husband testified that he lost a major client, which significantly reduced his income, so the court reduced husband's spousal maintenance obligation to $2500 per month, retroactive to July 2013. In October 2014, husband filed a second motion to further modify spousal maintenance on the basis that he had recently become unemployed. The court held a hearing on husband's second motion to modify over a three-day period in 2015. On July 29, 2015, the trial court concluded that husband's involuntary termination from employment amounted to a substantial change of circumstance under 15 V.S.A. § 758 and reduced husband's spousal maintenance obligation to $1500 per month, retroactive to the date he filed the motion to modify, October 29, 2014.

¶ 4. The relevant factual findings from the hearings on husband's September 2013 and October 2014 motions are as follows. In 1998, the parties and their minor children moved to Vermont. At the time of their move, wife was earning the equivalent of $40,000 per year, and husband was earning $27,000 per year. Once they moved to Vermont, wife stayed at home to care for the children—three of whom were under the age of three and all four of whom were under the age of seven—while husband continued to work outside the home. At the time of the divorce,husband was making $101,688 per year and wife about $18,198 per year. In the final divorce order, the court required husband to pay $2916 each month in spousal maintenance to wife. The final divorce decree stated that spousal maintenance would "help to meet [wife's] shortfall and enable her to catch up."

¶ 5. In 2013, husband settled a claim for future lost earnings that paid him $202,692. Husband admitted by stipulation that he failed to disclose this information during a hearing on his first modification motion and that his maintenance obligation therefore should not have been modified. Based on this new information, the court reinstated husband's spousal maintenance obligation at the original amount of $2916 per month for the period between July 2013 and October 2014, pending an evidentiary hearing on the motion. The court found that husband's unemployment was "a temporary situation" and that he would likely be able to meet his own needs and provide the modified $1500 per month maintenance payment. The court also found that wife continued to lack sufficient income to provide for her reasonable needs and would likely be unable to sustain the standard of living established during the marriage. The court calculated total spousal arrearages of $8640 through May 31, 2015, and ordered a judgment in favor of wife in that amount.

¶ 6. In February 2016, husband appealed that modification order to this Court, and we reversed and remanded. Weaver v. Weaver, 2015-326, 2016 WL 562907, at *1 (Vt. Feb. 1, 2016) (unpub. mem.), https://www.vermontjudiciary.org/sites/default/files/documents/eo15-326.pdf [https://perma.cc/JK8S-KDLF]. On remand, the court found the following facts. In September 2015, husband was employed as a Building Automation sales representative, with a salary of $55,000. He was receiving residual checks in the amount of $880 per month that would gradually decrease to zero. The trial court calculated his present income, as of August 2016, at $5463.33 per month, expected to decrease to $4583.33 per month. The court found husband owed the Internal Revenue Service approximately $50,000 and the State of Vermont $14,000 for delinquent incometaxes. The court also found that the settlement money husband received in 2013 was spent reasonably and before he had any reason to expect becoming unemployed.

¶ 7. Husband shares a home in Monkton with his present wife, her three children and two of his children. At the modification hearing on remand, wife emphasized that husband's present wife subsidizes his expenses to the extent of $5145 per month and sought to inquire into her income. However, the court sustained husband's objection limiting the inquiry to husband's current wife's ability to meet her agreed-upon half of the household expenses.

¶ 8. The court found that husband's expenses exceeded $5000 per month, which included half of the household expenses generated by his new family and which the court characterized as his "fair share" of the expenses. He and his current wife had an agreement between them that each would be responsible for half of the household expenses. The court did not include husband's tax liabilities, expenses for the parties' children, or child support payments in its calculation of his reasonable monthly expenses. The court found that the house he shares with his present wife was his only source of equity.

¶ 9. Because the court found that husband's reasonable expenses exceeded his income, it concluded that he could not be required to pay spousal maintenance in any amount and reduced his obligation to zero, retroactive to October 29, 2014. The court's order characterized the maintenance order as completely "compensatory," but it nevertheless weighed the equities and reduced husband's obligation to zero. Under the August 2016 order, husband was entitled to a return of funds paid since October 29, 2014.

¶ 10. The parties stipulated that husband was current on what they believed was his spousal obligation of $2500 per month from July 2013 through January 2015. Husband paid $600 in spousal support after February 2015, but when the court reinstated the $2916 per month spousal support for July 2013 through October 2014, it found that husband owed wife $6240. There wasno evidence before the court that husband was not current with child support payments, but the court's order permitted husband to offset the maintenance overpayment against any child support arrearages due. Wife appealed.

¶ 11. A trial court's decision to award spousal maintenance and its determinations about the amount and form of maintenance are entitled to "wide discretion." Strauss v. Strauss, 160 Vt. 335, 339, 628 A.2d 552, 554 (1993); see also Quesnel v. Quesnel, 150 Vt. 149, 151, 549 A.2d 644, 646 (1988) (explaining that maintenance award must be affirmed unless "there is no reasonable basis to support" it). A maintenance award is proper when the spouse seeking maintenance "lacks sufficient income, property, or both . . . to provide for his or her reasonable needs" and "is unable to support himself or herself through appropriate employment at the standard of living established during the civil marriage." 15 V.S.A. § 752(a)(1)-(2); see also Miller v. Miller, 2005 VT 122, ¶ 14, 179 Vt. 147, 892 A.2d 175 (2005). As we have explained, "[t]he reference to reasonable needs should not be looked at in relation to subsistence" because "[t]he critical comparison is to the standard of living established during the marriage" and the goal of spousal maintenance is to "equalize the standard of living of the parties for an appropriate period of time." Strauss, 160 Vt. at 338, 549 A.2d at 554.

¶ 12. Where, however, a maintenance order ceases to effectively accomplish the goal of equalizing the parties' standards of living, a modification may be appropriate. See Stickney v. Stickney, 170 Vt. 547, 548, 742 A.2d 1228, 1231 (1999) (mem.) ("Orders of support are not final, and may be modified from time to time as circumstances require."). Modification may be appropriate "upon a showing of a real, substantial, and unanticipated change of circumstances," 15 V.S.A. § 758, and the heavy burden for showing a change...