Coor v. Coor

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, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.



                                No. 88-502


Lattie F. Coor                               Supreme Court

     v.                                      On Appeal from
                                             Chittenden Superior Court
Ina F. Coor
                                             February Term, 1990



James L. Morse, J.

Douglas C. Pierson and Michael J. Gannon of Pierson, Affolter & Wadhams,
  Burlington, for plaintiff-appellee

Peter F. Langrock and Deborah L. Markowitz of Langrock Sperry Parker & Wool,
  Burlington, for defendant-appellant



PRESENT:  Allen, C.J., Peck, Gibson and Dooley, JJ.



     GIBSON, J.   Defendant Ina F. Coor appeals the maintenance provision
of an order granting a divorce to plaintiff Lattie F. Coor, Jr.  We affirm.
     Plaintiff and defendant were married in 1964, a year after they met
while pursuing advanced degrees at Washington University in St. Louis,
Missouri.  Both parties eventually received doctoral degrees and taught in
their respective fields at various universities.  Plaintiff held several
administrative posts before becoming President of the University of Vermont
in 1976, while defendant held several teaching positions during the
marriage.  At the time of their divorce, defendant was an Assistant
Professor in the Department of Psychiatry at the University of Vermont,
where her husband served as President.  The children were ages twelve,
sixteen, and twenty-three at that time.
     Shortly before a contested hearing was held on the issues of property
division and maintenance, the parties signed an agreement by which
plaintiff assumed primary legal responsibility and shared physical
responsibility for the minor children.  Following a two-day hearing, the
court awarded defendant (1) approximately $478,000 of the $844,000 in
marital assets; and (2) $500 per month in maintenance, to be increased to
$1,000 per month in 1992, $2,000 per month in 1995, and $3,000 per month in
the year 2000, figures to be adjusted for inflation.  On appeal, defendant
contends that the court abused its discretion by awarding defendant
insufficient maintenance, and that the provision of the court's order
terminating plaintiff's maintenance payments upon defendant's remarriage or
cohabitation is contrary to Vermont law and against public policy. (FN1)
     Defendant argues that the trial court abused its discretion by not
ordering a larger maintenance award because (1) she needs a significantly
greater amount to maintain the standard of living established during the
marriage; (2) plaintiff is capable of paying significantly more without
adversely affecting his standard of living; (3) the trial court relied too
heavily on the fact that no child support was to be awarded and that
defendant received a greater portion of the marital property while plaintiff
was assigned a greater portion of the parties' debts.  Upon review of the
record, we conclude that the court did not abuse its discretion in making
its maintenance award.
     Under 15 V.S.A. { 752(a), the court may order maintenance payments if
the spouse seeking maintenance "(1) lacks sufficient income, property, or
both, including property apportioned [by the judgment order], to provide for
. . . her reasonable needs, and (2) is unable to support . . . herself
through appropriate employment at the standard of living established during
the marriage or is the custodian of a child of the parties."  Among the
factors the court must consider are the financial resources of the party
seeking maintenance, the property apportioned to the party, the party's
ability to meet his or her needs independently, the reasonable needs of both
parties, and the standard of living established during the marriage.  See {
752(b).  In fashioning the instant maintenance award, the court took into
account, among other things, its property distribution award, defendant's
future earning capacity, the parties' joint and individual debts,
plaintiff's ability to pay, and the standard of living established during
the marriage.  Upon review of the record and the court's award, we find no
abuse of discretion and conclude that defendant has failed to meet her
burden of showing that there is no reasonable basis to support the award.
See Johnson v. Johnson, No. 89-050, slip op. at 5 (Vt. Aug. 10, 1990);
Quesnel v. Quesnel, 150 Vt. 149, 151-52, 549 A.2d 644, 646 (1988).
     Defendant cites McCrea v. McCrea, 150 Vt. 204, 206-07, 552 A.2d 392, 394 (1988) for the proposition that the term "reasonable needs" in { 752(a)
is to be determined in light of the standard of living established during
the marriage.  We reaffirm this interpretation, but conclude that, keeping
in mind the standard of living enjoyed by the parties during the marriage,
defendant's reasonable needs were met by the instant award.
     Defendant also contends that the court abused its discretion by
ordering that maintenance payments shall cease upon her remarriage or
cohabitation.  We disagree.  It is within the court's discretion to order
termination of maintenance payments should the spouse receiving maintenance
remarry or cohabitate.  See, e.g., Johnson, slip op. at 6-7; Jacobs v.
Jacobs, 507 A.2d 596, 601 (Me. 1986).  If the spouse receiving maintenance
does remarry, but the anticipated increased financial security does not
materialize, he or she may seek an amendment of the order terminating
maintenance upon remarriage.  15 V.S.A. { 758.
     The cases cited by defendant in support of her argument are not on
point.  In those cases, the original maintenance award did not stipulate
that payments would cease upon the remarriage of the spouse receiving
maintenance; rather, the paying spouse sought termination of the payments
after the receiving spouse had remarried.  The courts held that remarriage
does not automatically justify a termination of maintenance payments.  See,
e.g., In re Marriage of Bettiol, 92 Or. App. 587, 588, 759 P.2d 322, 322
(1988).  We agree that, in such situations, the party seeking termination of
an obligation to pay maintenance must show that the remarriage of his or her
ex-spouse constitutes a real, substantial and unanticipated change in
circumstances.  See { 758.  Nevertheless, this conclusion does not preclude
the trial court, under appropriate circumstances, from ordering in the
initial decree that maintenance be terminated upon the remarriage of the
party receiving the award.
     The court did not abuse its discretion by making such an order under
the present circumstances.  Despite defendant's contentions to the contrary,
the record does not show that she made repeated sacrifices of her own career
to further that of her husband.   Thus, this case differs significantly from
Klein v. Klein, 150 Vt. 466, 473-74, 555 A.2d 382, 386-87 (1988), where we
held, as a matter of law, that a spouse without a college education and
with limited work experience, who for eighteen years had dedicated her life
to raising the children and supporting her husband in the development of his
law practice, was entitled to an award of maintenance.  Because the
compensatory aspect of maintenance noted in Klein is not prominent here, the
court was not precluded from terminating the maintenance payments upon
defendant's remarriage, as suggested by defendant.  Cf. Reiss v. Reiss, 205
N.J. Super. 41, 47, 500 A.2d 24, 27 (1985) (where award of reimbursement
alimony was made to compensate wife for contribution of her earnings to
husband during husband's professional training, alimony was not terminable
upon wife's remarriage).
     Affirmed.


                                   FOR THE COURT:




                                   ________________________________________
                                   Associate Justice




FN1.    Initially, defendant also argued that the court abused its
discretion by refusing to consider a University of Vermont reserve fund set
aside for plaintiff as a marital asset subject to division.  While the
appeal was pending, however, the parties stipulated to a withdrawal of this
claim of error.