Henry v. Henry

ENTRY_ORDER.92-631; 162 Vt. 613; 643 A.2d 845


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 92-631

                               JUNE TERM, 1993


 Shirley Henry                     }          APPEALED FROM:
                                   }
                                   }
      v.                           }          Orange Family Court
                                   }
                                   }
 Thomas Henry                      }
                                   }          DOCKET NO. F122-9-91 OeDmd


              In the above entitled cause the Clerk will enter:

      In this divorce, plaintiff-wife appeals the family court's spousal
 maintenance award of $1 per year to defendant-husband.  The three points
 raised may be stated simply: Whether the evidence supports an award of any
 maintenance by wife to husband.  We affirm.

      The parties' relative earning capacities were unequal, wife's being
 more than $40,000 a year at the time of the divorce, which was more than
 double that of her husband.  The parties were married fifteen years before
 the separation.  Wife had a post-graduate degree (MBA); husband had an
 undergraduate degree (BA).  The court found husband was emotionally
 disturbed in that he failed at times to communicate at all, completely
 withdrawing from family and friends.

      The evidence amply supported a conclusion that wife was more finan-
 cially self-sufficient than husband.  Certainly, an award of spousal
 maintenance under these conditions is not unusual.  What is unusual is that
 the amount of the maintenance was nominal.  This came about because in the
 words of the trial court,

             Except as to Mr. Henry's emotional disturbance . . .
           both parties would be capable of providing their own
           incomes in an amount sufficient to maintain the style of
           living enjoyed during the marriage.  However, this court
           cannot conclude that Mr. Henry is capable of working at
           the present time or that he is voluntarily unemployed or
           underemployed.  Since Mr. Henry declined to participate
           in these proceedings [he voluntarily absented himself
           from the final hearing after it had started] he has
           failed to meet his burden of establishing what, if any
           maintenance is due him.  However, based on the Court's
           findings [], we cannot, in fairness, deny maintenance in
           this case.  We conclude that, based on the evidence
           before us Mr. Henry is entitled to maintenance in the
           amount of $1.00 per year based solely on a

 

           mental/emotional disturbance from which he suffers and
           which interferes with his employability.

      Obviously, it is not the $1.00 a year wife is complaining about.
 Wife's concern, although it is nowhere articulated in her appeal, must be
 that at some indefinite future time husband may move to modify the amount of
 maintenance to a considerably higher figure.  15 V.S.A. { 758 (upon "real,
 substantial, and unanticipated change of circumstances" maintenance may be
 modified).  If this becomes so, her concern should be focused on resisting
 the motion to modify, if and when it should ever be filed, rather than at
 this time.

      The maintenance award of $1.00 a year was not clearly erroneous.  The
 findings that husband was temperamental and that his temperament had reduced
 his ability to earn a living in the past, and potentially might have the
 same effect in the future, were amply supported by the evidence.

      Affirmed.

                                    BY THE COURT:


                                    _______________________________________
                                    Frederic W. Allen, Chief Justice

                                    _______________________________________
                                    Ernest W. Gibson III, Associate Justice

                                    _______________________________________
                                    John A. Dooley, Associate Justice

                                    _______________________________________
                                    James L. Morse, Associate Justice
 [x]  Publish
                                    _______________________________________
 [ ]  Do Not Publish                Denise R. Johnson, Associate Justice