Zink v. Zink

• Decision Date: 22 April 2016
• Docket Number: No. 15–319.,15–319.
• Court: Vermont Supreme Court
• Parties: Kathleen ZINK v. Bryan ZINK.

147 A.3d 75

2016 VT 46

Kathleen ZINK

v.Bryan ZINK.

No. 15–319.

Supreme Court of Vermont.

April 22, 2016.

Paul D. Jarvis of Jarvis, McArthur & Williams, Burlington, for Plaintiff–Appellee.

Margaret M. Strouse of Strouse & Bond PLLC, Burlington, for Defendant–Appellant.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

ROBINSON, J.

¶ 1. Husband appeals from the trial court's order denying his request to modify his spousal maintenance obligation and granting wife's motion to enforce. He argues that the court erred in finding an absence of changed circumstances, and in finding that wife did not agree to accept reduced payments in satisfaction of past spousal maintenance obligations. We reverse and remand for additional proceedings.

57 2. The underlying December 2007 divorce order incorporates the parties' agreement that husband shall pay wife permanent alimony of $1800 per month. In January 2015, wife filed a motion to enforce and for contempt. She asserted that husband failed to fully comply with his monthly obligation, and had recently informed her that he would no longer pay any spousal maintenance. Husband opposed wife's motion and moved to modify his maintenance obligation. He denied telling wife that he would no longer pay maintenance, but noted that he was not able to pay the court-ordered sum. Husband maintained that since the issuance of the final divorce order, the parties had, by mutual agreement, reduced the maintenance payments. Husband also argued that the parties' financial circumstances had changed since the divorce.

¶ 3. Following an evidentiary hearing, the court made the following findings. Husband is a self-employed truck driver. At the time of the parties' divorce, husband lived in his truck and had minimal housing expenses. Husband has since remarried and moved in with his current wife. Husband's effective earnings are $40,000 per year, and his current wife receives gift income of $12,000 per year. Husband and his current wife also have approximately $50,000 in equity in their home. Although husband's income has increased since the divorce, the increase has been more than offset by an increase in living expenses. Husband and his current wife, with their combined incomes, can meet their basic needs, with $250 per week extra after expenses. Husband testified that at the time of the divorce he did not understand what “permanent spousal maintenance” meant, and that his purpose in stipulating was to try to keep wife, who was unemployed, living in the parties' condominium.

¶ 4. Wife was unemployed at the time of the divorce and living in the parties' condominium. Wife has since sold the condominium, and now has lower housing expenses. Since 2011, wife has worked at the University of Vermont, and presently earns $2641 per month. Wife also receives $503 per month from retirement funds and pensions, as well as $1134 from Social Security income, which she started collecting in May 2013.

¶ 5. The parties have had conversations over the years about reducing the amount of spousal maintenance payments. When husband said that he could not pay $1800 per month, wife suggested lower amounts. Wife did so because she felt that if she insisted on full payment, husband would not pay anything. The court found that there was never an enforceable agreement between the parties to modify husband's alimony obligation. It determined that, at most, wife exercised forbearance.

¶ 6. Turning to husband's motion to modify, the court found no “real, substantial, and unanticipated change of circumstances” to warrant modification. 15 V.S.A. § 758. The court reasoned that it was “not beyond the bounds of reasonable anticipation” that husband would someday remarry and move in with a new spouse, thereby increasing his housing expenses. Similarly, the court found that wife's finding work, earning a modest salary, and moving from the condominium could not reasonably be described as unanticipated. The court explained: “Each of these events is well within the realm of ordinary foresight.” The court recognized that it was nearly impossible for husband to pay the court-ordered sum, and concluded that the spousal maintenance order was excessive at the time husband stipulated to it, and remained excessive now. However, the court denied husband's motion to modify because husband had failed to show a real, substantial, and unanticipated change of circumstances. It therefore granted wife's motion to enforce, and ordered husband to pay $42,542 in maintenance arrears. The court denied wife's motion for contempt as well as her request for attorney's fees, because husband did not have a present ability to pay either the arrearages or the $1800 monthly obligation.

¶ 7. On appeal, husband argues that the court erred in finding no change of circumstances sufficient to consider a modification, and that the trial court erred in concluding that the parties' agreements did not amount to a contractual modification of husband's spousal maintenance obligation.

¶ 8. We review the trial court's factual findings deferentially, and will not set them aside unless they are clearly erroneous. Stickney v. Stickney, 170 Vt. 547, 548, 742 A.2d 1228, 1230–31 (1999) (mem.). “Review of conclusions of law is ... nondeferential and plenary.” Id. at 548, 742 A.2d at 1231.

I. Real, Substantial, and Unanticipated Change of Circumstances

¶ 9. “Under 15 V.S.A. § 758, a court may modify a spousal maintenance award only upon a showing of a real, substantial, and unanticipated change of circumstances.” Herring v. Herring, 2011 VT 38, ¶ 6, 190 Vt. 19, 24 A.3d 574 (quotation omitted). “[S]ubstantial and unanticipated changes in the nonmaintenance income available to the recipient spouse, or to the income available to the obligor spouse, can be a change in circumstances to warrant modification of a maintenance award.” Taylor v. Taylor, 175 Vt. 32, 38, 819 A.2d 684, 689 (2002). The court has discretion in deciding whether changed circumstances exist, and “no fixed standards exist for determining what meets the threshold.” Herring, 2011 VT 38, ¶ 6, 190 Vt. 19, 24 A.3d 574 (citing Taylor, 175 Vt. at 36, 819 A.2d at 688 ). We review a trial court's decision whether to modify spousal maintenance deferentially, and will not disturb its ruling “unless the discretion was erroneously exercised, or was exercised upon unfounded considerations or to an extent clearly unreasonable in light of the evidence.” Mayville v. Mayville, 2010 VT 94, ¶ 8, 189 Vt. 1, 12 A.3d 500 (quotation omitted).

¶ 10. Pointing to his increased housing expenses and wife's increased income and lower housing expenses since the time of the divorce, husband argues that the court misconstrued the term “unanticipated change of circumstances” in concluding that these changes were “within the realm of ordinary foresight.”

¶ 11. In assessing husband's argument, we emphasize the difference between a change that may be theoretically foreseeable at the time of a divorce and one that is actually factored into the parties' or court's assumptions in establishing a spousal maintenance order. We recently considered this distinction in Herring, 2011 VT 38, ¶ 6, 190 Vt. 19, 24 A.3d 574. In that case, the trial court declined to modify an order for permanent spousal maintenance in the amount of $1000 per month on account of husband's subsequent conviction and sentence to thirty-five years to life. It reasoned that because husband was facing the criminal charges at the time of his final divorce order, his incarceration was not an unanticipated change of circumstances warranting modification. We reversed, noting that the incarceration may have been foreseeable insofar as he faced criminal charges, but whether he would actually be convicted and what his sentence would be were pure speculation. Id. ¶ 7. We explained more generally:

The term “unanticipated” in § 758 must be interpreted by reviewing the facts and circumstances underlying the divorce order and determining whether incarceration, or another condition causing a reduction in income, was taken into account in establishing the original maintenance order. If it was, then the incarceration or other condition was anticipated. If it was not, then the incarceration or other condition was unanticipated.

Id. ¶ 8.

¶ 12. Our analysis in Herring relied heavily on our discussion in Shaw v. Shaw, 162 Vt. 338, 648 A.2d 836 (1994). In that case, husband sought to modify his spousal maintenance obligation because he lost his job, and wife argued that his job loss was anticipated because he was being investigated for misconduct at the time of the divorce. This Court rejected wife's argument, noting that the testimony did not suggest that the amount of maintenance determined through negotiation was affected in any way by the possibility of a later job loss. Id. at 340, 648 A.2d at 838 ; see also DeKoeyer v. DeKoeyer, 146 Vt. 493, 495–96, 507 A.2d 962, 963–64 (1986) (disapproving reliance on speculation about future economic conditions and emphasizing that conditions at time of divorce and conditions contemporaneous with modification hearing are paramount in hearing to modify spousal maintenance).

¶ 13. We have likewise held in cases involving remarriage that even though remarriage is within the realm of possibility for any divorced person, it may still constitute a “real, substantial, and unanticipated change of circumstances,” depending on its effect on a party's financial security. See Taylor, 175 Vt. at 38, 819 A.2d at 689. We have specifically recognized that an obligor spouse can bring a motion to modify if a remarriage substantially reduces the need for maintenance. Johnson v. Johnson, 155 Vt. 36, 42, 580 A.2d 503, 507 (1990). Indeed, even when a maintenance award contains a provision that automatically reduces maintenance upon a party's remarriage, we have recognized that modification may not be appropriate. See Taylor, 175 Vt. at 38, 819 A.2d at 689.

¶ 14. In light of this authority, we conclude...