Stocker v. Stocker

                            AMENDED ENTRY ORDER

                      SUPREME COURT DOCKET NO. 89-480

                            NOVEMBER TERM, 1990


Robert Leroy Stocker              }          APPEALED FROM:
                                  }
                                  }
     v.                           }          Rutland Superior Court
                                  }
                                  }
Joanne Davis Stocker              }
                                  }          DOCKET NO. S433-88RcFd


             In the above entitled cause the Clerk will enter:

     Defendant wife appeals from a superior court order reducing child
support payments to plaintiff husband from $71 to $30 per week, following
the parties' divorce and award of custody of their child to plaintiff.
Defendant contends that she should have no support obligation.

     On appeal defendant concedes that the court's original $71 weekly
figure was correct under the support guidelines issued by the secretary of
human services pursuant to 15 V.S.A. { 654.  Her major issue on appeal is
the failure of the trial court to eliminate her support obligation
altogether in light of the living expenses she itemized in her affidavit of
expenses.  But the court in its decision from the bench made it clear that
it was reducing the support figure from $71 to $30 in light of the facts
adduced by defendant about her living expenses, including the expense of
caring for two children of an earlier marriage.  It was within the court's
power to consider these factors.  See Ainsworth v. Ainsworth, ___ Vt. ___,
___, 574 A.2d 772, 775-78 (1990).  In accordance with the criteria set forth
in 15 V.S.A. { 659(a), the court reduced the amount of weekly support by
more than half from the $71 figure established under the guidelines.
Defendant has not demonstrated that it was an abuse of discretion for the
court to impose some obligation to support, especially at a figure well
below that prescribed by the guidelines.

     Nor is defendant correct that the court failed to explain its award of
the parties' residence to plaintiff, or that the award was an abuse of dis-
cretion.  The court found that the residence had been owned by plaintiff
and that defendant had not added substantially to its value.  The court also
specifically stated that it considered the property award in arriving at a
child support figure, noting that defendant had done nothing toward support
of the child since the parties separated.  In light of its reduction in
defendant's support obligation under the guidelines of nearly 60 percent,
the court's decision was well within its discretion.

     Affirmed.





                                   BY THE COURT:


Dissenting:
                                   Frederic W. Allen, Chief Justice

_________________________________
John A. Dooley, Associate Justice  Ernest W. Gibson III, Associate Justice


_________________________________  _______________________________________
Louis P. Peck, Associate Justice   James L. Morse, Associate Justice
(Ret.), Specially Assigned






     Dooley, J., dissenting.   The combination of the two orders appealed
from leaves defendant with a poverty-level income, basic living expenses
that exceed that income, no assets and a support order equal to 15% of her
gross income.  They remain inequitable and should not be affirmed.

     Defendant has a gross income of $869 per month entirely from worker's
compensation benefits. On this amount she is required to support two minor
children of a former marriage and pay rent of $330 per month plus elect-
ricity of $40 per month.  The $370 per month shelter expenses are, of
course, caused by the fact that she received no part of the parties' house,
the only real asset of the marriage.  Although plaintiff's gross income is
lower than that of defendant, he has virtually no shelter costs.

     Defendant's income is lower than the federal poverty level for a family
of three.  See 55 Fed. Reg. 5665 (Feb. 16, 1990).  It is lower than
Vermont's welfare need standard, Vermont Dep't of Social Welfare, Welfare
Assistance Manual {{ 2245.2, 2245.24, 2245.3 (Oct. 1,1990), defined
statutorily as a "reasonable subsistence compatible with decency and
health." 33 V.S.A. { 1103(a).  After support is paid, it will be far below
these levels.  We should be dealing with the income deficiencies of these
families through our income maintenance programs rather than issuing court
orders to transfer money between poor families, backed up by automatic wage
withholding orders, see 15 V.S.A. {{ 780(9) (worker's compensation payments
defined as wages), 781(a) (wage withholding orders), when neither family
will have enough money to live on.

     The fact that the guideline statute could be read to authorize this
child support order was caused by the omission of a specific calculation
method for other minor dependents of the parties to the child support dis-
pute.  The legislature has now corrected this omission.  15 V.S.A. { 656a
(providing for adjustment of child support obligation where "a parent is
also responsible for the support of additional dependents who are not the
subject of the support order").  Without going through all the calculations
here, under the new statutory provisions, defendant's income is under the
statutory self-support reserve and would remain below the reserve even if
she returned to work at her former wage rate.  See 15 V.S.A. { 653(7) (self-
support reserve is the amount of income reserved to the non-custodial spouse
to provide a reasonable subsistence compatible with decency and health);
Vermont Office of Child Support Services, Child Support Guidelines (Oct. 9,
1990).  Where a non-custodial parent's income is below the self-support
reserve, the court must consider the factors in { 659 and "shall require
payment of a nominal support amount."  15 V.S.A. { 656(b).

     I would take the legislature's new system for handling additional
dependents as a guideline for how to do justice in this case.  Accordingly,
I would remand for an order of support of a nominal amount, having in mind
that defendant's income is already below the poverty level.

     If there were a fair child support order in this case, I would be more
open to the division of assets.  The trial court interrelated these issues
by defending the property division in part based on the sub-guideline child
support order.  Since I believe that the child support order is too high, I
cannot accept this defense.

     In Andreson v. Andreson, 145 Vt. 634, 636, 497 A.2d 371, 373 (1985),
this Court held that an order "decreeing no asset of value to appellant"
warrants "the strictest scrutiny."  In fact, I cannot find that we have ever
affirmed an order that allocated no asset of value to one of the parties.
That is exactly the situation here.  While I think the situation is differ-
ent from the norm because of the poverty of the parties, I do not think the
order can withstand strictest scrutiny.  The result of the order is that
defendant has housing costs that approach fifty percent of her income while
plaintiff has virtually no housing costs.  This difference in housing costs
was then ignored in the support calculations.  Not only is there not the
"break" for defendant in the support order as relied upon by the trial
court, the support order magnifies the one-sided property distribution.
Both cannot be sustained.  I dissent.

     I am authorized to say that Justice Peck joins in this dissent.



                                   __________________________________
                                   John A. Dooley, Associate Justice



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