Lowery v. Lowery

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. 90-391


Patricia A. Lowery                           Supreme Court

                                             On Appeal from
     v.                                      Addison Superior Court

Vernon E. Lowery                             December Term, 1990


Frank G. Mahady, J.

Greene & Seaver, Inc., Burlington, for plaintiff-appellant

Caldbeck & Schweitzer, Shelburne, for defendant-appellee


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     DOOLEY, J.   Plaintiff, Patricia Lowery, appeals from a judgment
modifying a California divorce maintenance order by reducing prospective
payments.  We reverse and remand.
     The parties were divorced in California in 1984.  Defendant was ordered
to pay $700 per month maintenance, "continuing until the death or remarriage
of [plaintiff], or further order of the court."  As additional maintenance,
defendant was ordered "to keep and maintain in full force and effect his
existing hospital and medical insurance available through his employment so
long as he is legally able to do so."  If there came a time when he could
not cover plaintiff, he was ordered to purchase "a comparable policy of
insurance" for her.  In either event, he was to pay "any uninsured medical,
hospital, or doctor bills" she incurred.  This supplemental maintenance
order was also to continue until plaintiff remarried or died or until
further order of the court.
     At the time of the California order, defendant earned $33,000 per
year.  Subsequently, defendant moved to Vermont where he became employed at
Simmonds Precision at a salary of $40,000 per year.  He was terminated from
that job on January 6, 1989, and began receiving unemployment compensation
at $169 per week.  In January 1990, defendant took a temporary job which
paid $19 per hour.
     In October of 1989, plaintiff brought a petition to enforce the
California maintenance order, alleging that defendant had ceased paying and
owed an arrearage. Defendant responded by seeking a modification of the
order.  After hearing, the court ordered defendant to pay an arrearage for
unpaid maintenance and medical bills up to January 8, 1990, the date on
which defendant petitioned for modification.  The court prospectively
modified the California order to reduce maintenance to $50 per month after
January 8, 1990.  The order is silent on defendant's duty to pay plaintiff's
medical bills after the modification.
     Plaintiff appeals, raising three alleged errors:  (1) the court had no
jurisdiction to modify the California maintenance order; (2) the evidence
did not support the maintenance reduction; and (3) the court improperly
failed to specify whether defendant was obligated to pay plaintiff's future
medical expenses.  Although we find that the court had the power to modify
the California order, we conclude that it went too far in that modification
and reverse and remand for a new determination of defendant's obligation to
pay maintenance and plaintiff's medical expenses after January 8, 1990.
     Plaintiff's claim that the court had no power to modify the California
order is based on our decision in Grant v. Grant, 136 Vt. 9, 14, 383 A.2d 627, 630 (1978).  In that opinion, however, we expressly refrained from
deciding whether our statute governing modification of maintenance orders
applied to orders from other states.  Id.  We now answer that question and
hold that a Vermont court with personal jurisdiction over an obligor under a
maintenance order from another state has the power to modify that order
prospectively if the state issuing it allows prospective modification.
     Plaintiff first argues that foreign maintenance awards are entitled to
full faith and credit under the United States Constitution, (FN1) but that the
principles of full faith and credit do not allow one state to modify another
state's order.  Defendant's position is that Vermont may recognize the
California order, treat it as a Vermont order, and modify it under Vermont
law.
     Although the United States Supreme Court has not spoken recently in
this area, its settled interpretation has been that a foreign maintenance
order is entitled to full faith and credit only with respect to amounts
already accrued, and then only if such amounts are not subject to
retroactive modification in the issuing state.  See Sistare v. Sistare, 218 U.S. 1, 16-17 (1910); see also Miller v. Miller, 123 Vt. 221, 224, 186 A.2d 93, 96 (1962); see generally Foster & Freed, Modification, Recognition and
Enforcement of Foreign Alimony Orders, 11 Cal. W.L. Rev. 280 (1975).  Under
this rule, we have given effect to a California maintenance award,
enforcing it with respect to the arrearage.  Berger v. Berger, 138 Vt. 367,
371, 417 A.2d 921, 923 (1980); see Note, Full Faith and Credit and the
Recognition of Foreign Alimony Decrees in Vermont, 6 Vt. L. Rev. 539 (1981)
(commenting on Berger).  California does not allow modification of
maintenance arrearages.  See Bryant v. Bryant, 161 Cal. App. 2d 583, 326 P.2d 898, 900 (1958).  Thus, the full faith and credit clause required the
trial court here to enforce the California order with respect to the
arrearage, as it did.
     For purposes of this case, the more important part of the Sistare rule
is that prospective maintenance orders are not entitled to full faith and
credit if they can be modified in their state of origin.  Although some
courts have found that full faith and credit requires enforcement of a
prospective maintenance award from another state, see Light v. Light, 12 Ill. 2d 502, 511, 147 N.E.2d 34, 40 (1958), we conclude that the Sistare
rule precludes reaching this result.  See Walzer v. Walzer, 173 Conn. 62,
67, 376 A.2d 414, 416 (1977); Comment, Interstate Enforcement of Modifiable
Alimony and Child Support Decrees, 54 Iowa L. Rev. 597, 607 (1969) (Light
rationale "has not been widely accepted").
     Our holding that we are under no federal constitutional obligation to
recognize the prospective obligation to pay maintenance under the order of
another state is not a conclusion that we must decline to recognize the
order.  We agree with Justice Schaefer's observation in Light that "unless
[alimony decrees] receive interstate recognition, the insulated judicial
systems of the several States may become sanctuaries within which
obligations that have been fully and fairly adjudicated in another
jurisdiction may be escaped."  12 Ill. 2d  at 510, 147 N.E.2d  at 39.  It is
not an effective remedy for plaintiff to wait for maintenance amounts to
accrue in California and then bring repeated new enforcement actions in
Vermont for the arrearage.  See Worthley v. Worthley, 44 Cal. 2d 465, 474,
283 P.2d 19, 25 (1955) ("the costs of litigation and the dilatoriness of the
recovery would substantially reduce the value of the support to which
plaintiff is entitled").  Therefore, as a matter of comity, we will
recognize prospective maintenance obligations created by orders of other
states.  See id. at 473-74, 283 P.2d at 24-25; see generally Comment,
Interstate Enforcement of Modifiable Alimony and Child Support Decrees,
supra p.4, at 607-11.
     Once we ground enforcement of foreign maintenance orders on comity, and
retain discretion on how we will implement that comity, we conclude that
modification should be available in appropriate circumstances.  Where a
trial court treats a foreign order as an enforceable Vermont order, it
should analyze it as it would any other order for purposes of 15 V.S.A. {
758 (authorizing modification of maintenance "upon a showing of a real,
substantial, and unanticipated change of circumstances").  Plaintiff argues
that defendant voluntarily migrated across the country and should be
required to go back to California to seek modification.  This remedy, while
theoretically possible, is impracticable in a case such as this where
defendant apparently lacks the income to pay his maintenance obligation.  In
any event, we are reluctant to penalize defendant's right to travel to
Vermont by limiting the relief available to him in a Vermont court to which
plaintiff has come for enforcement.  The parties are before us, and we
should resolve the entire dispute between them. (FN2)
     We hold that a prospective maintenance obligation from another state
can be modified in this state if the obligation could be modified in the
state where it was created.  The California order at issue here specifically
allows for modification.  California, like Vermont, allows modification of
maintenance awards on a showing of changed circumstances.  See California
Civil Code {{ 4801(a), 4801.9 (1983).  Thus, the court acted properly in
considering defendant's request to modify the prospective maintenance
obligation.
     Plaintiff's second argument is that, even if modification were
permissible, there were insufficient grounds to support the court's
modification order.(FN3) The court found that defendant lost his job in January
of 1989 and throughout that year received unemployment compensation
amounting to less than 25% of his former salary. The evidence also
demonstrated that defendant had worked at a temporary job from January 1990
up to the date of the hearing in April.  Although that job was expected to
end in mid-April, it provided defendant with an income close to the amount
he received from his former permanent employment and higher than that on
which the 1984 maintenance award was based.
     In order to obtain modification of the maintenance award, defendant
was required to show a "real, substantial, and unanticipated change of
circumstances."  15 V.S.A. { 758; see Gil v. Gil, 151 Vt. 598, 599, 563 A.2d 624, 625 (1989).  A substantial reduction in defendant's income could be
found to be a sufficient change of circumstances.  See Bullard v. Bullard,
144 Vt. 627, 629, 481 A.2d 1049, 1051 (1984) (court may look at financial
situation of spouse from whom maintenance is sought).  Although we would be
reluctant to conclude that a temporary, short-term reduction of income was
sufficient to warrant modification, see, e.g., Haynie v. Haynie, 19 Ohio
App. 3d 288, 290, 484 N.E.2d 750, 753 (1984) (Jackson, J., concurring)
(spouse beginning medical practice did not meet burden to show that his
financial problems were more than temporary), defendant's interruption of
income was sufficiently long-term for the court to conclude that a change of
circumstances existed.
     We do not believe, however, that the change in defendant's
circumstances warranted the modification the court made.  Although defendant
was laid off from his job, there was no evidence that he would not find
replacement employment.  His temporary job produced sufficient income to
meet the California maintenance award.
     The court's order left plaintiff with a permanent alimony award that
was only 7% of that provided in the California order.  She has no way to
determine whether defendant is employed and has only limited ability, living
three thousand miles away, to seek an upward adjustment if defendant's
income increases.
     We recognize that the trial court has wide discretion in fashioning
maintenance orders, but that discretion is not unlimited.  See Klein v.
Klein, 150 Vt. 466, 473, 555 A.2d 382, 386 (1988).  We cannot conclude that
the order here fell within the court's discretion.  Other courts have made
adjustments in an existing maintenance order to match the obligor's
temporarily changed circumstances.  See Johnson v. Johnson, 185 Conn. 573,
577, 441 A.2d 578, 579 (1981) (court could make three-month reduction in
defendant's alimony and support obligation); 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).  In the present case, the
circumstances warranted a temporary adjustment only, and it was improper to
make a permanent, substantial reduction in defendant's maintenance
obligation.
     On remand, the court should consider placing a time limit on any
maintenance reduction or returning automatically to the California amount
for any period in which defendant is renumerated above a certain threshold.
Cf. Cleverly v. Cleverly, 147 Vt. 154, 159-60, 513 A.2d 612, 615 (1986)
(court must impose time limit on rehabilitative alimony even where it is
difficult to predict the exact length of time maintenance will be required;
if maintenance period is too short, recipient can request modification).
The court should also consider a reporting requirement so that plaintiff is
informed periodically about defendant's employment status and income.  On
remand, the court may need to take additional evidence on the current
situation to frame an appropriate order.  See Klein v. Klein, 153 Vt. 551,
556, 572 A.2d 900, 903 (1990).
     Plaintiff's third claim is that the trial court failed to address the
provision in the California order requiring defendant to maintain medical
insurance and pay plaintiff's medical expenses.  We are unable to determine
from the court's silence on this issue what it intended.  We will not
speculate on the court's action when it does not address the issue in its
findings and conclusions.  See Richard v. Richard, 146 Vt. 286, 287, 501 A.2d 1190, 1190-91 (1985).  Accordingly, the court on remand must make
findings and conclusions addressing this part of the California order and
specifying whether it continues in the Vermont order.
     Reversed and remanded.
                                        FOR THE COURT:




                                        Associate Justice



FN1.   The full faith and credit clause, Article IV, { 1 of the United
States Constitution, provides:
       Full Faith and Credit shall be given in each State to the public
     Acts, Records, and judicial Proceedings of every other state.  And
     the Congress may by general Laws prescribe the Manner in which
     such Acts, Records and Proceedings shall be proved, and the Effect
     thereof.

FN2.    In addition, this approach to postdivorce maintenance is consistent
with the policy on spousal support, enforceable through the Uniform
Reciprocal Enforcement of Support Act.  See 15 V.S.A. { 428(a); Bullard v.
Bullard, 144 Vt. 627, 628-29, 481 A.2d 1049, 1050-51 (1984).
  
FN3.    Our holding on the modification of out-of-state maintenance awards
necessarily creates a choice of law question:  which state's modification
standards will govern in this case?  See E. Scoles & P. Hay, Conflict of
Laws {{ 15.37-.38 (1982).  We do not reach that question because neither
party has argued or demonstrated here, or in the trial court, that there is
any relevant difference between the laws of California and Vermont on
modifying maintenance awards or the range of permissible modification.  See
V.R.C.P. 44.1(a).