Arbuckle v. Ciccotelli

Arbuckle v. Ciccotelli (2003-239); 177 Vt. 104; 857 A.2d 324

2004 VT 68

[Filed 30-Jul-2004]


       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, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2004 VT 68

                                No. 2003-239


  Brenda E. Arbuckle	                         Supreme Court

                                                 On Appeal from
       v.           	                         Windsor Family Court


  Ernest J. Ciccotelli	                         April Term, 2004


  Amy M. Davenport, J.

  William K. Koppenheffer of Janson & Koppenheffer, Lebanon, New Hampshire,
    for  Plaintiff-Appellee.

  Ernest J. Ciccotelli, Pro Se, Norwich, Defendant-Appellant.


  PRESENT:  Amestoy, C.J., Dooley, Johnson, Skoglund and Reiber, JJ.


       ¶  1.  AMESTOY, C.J.   Appellant Ernest Ciccotelli appeals pro se
  from the family court's denial of his motion for an emergency modification
  of spousal support, and his motion for a permanent modification of spousal
  support, pursuant to 15 V.S.A. § 758.  Appellant claims that the court
  erred in holding that the family court lacks subject matter jurisdiction to
  modify an award of rehabilitative maintenance when the motion to modify is
  filed after the expiration of the original term.  We affirm. 
   
       ¶  2.  Ernest Ciccotelli and Brenda Arbuckle were divorced by decree
  of the Windsor Family Court on January 26, 1999.  The final order
  incorporated a stipulation signed by the parties and their attorneys,
  making certain provisions with regard to the parties' respective parental
  rights, and the distribution of the marital property.  In relevant part,
  the order awarded the marital home to appellant, making him solely 
  responsible for the home's mortgage and any outstanding obligations for
  maintenance, insurance and taxes on the property.  In consideration of
  Arbuckle's waiving her right to recover any share of the equity in the
  parties' marital home, appellant waived any possible claim against Arbuckle
  for contributions towards appellant's student loan obligations, which
  constitute debts of the marriage.  Arbuckle was obligated to pay appellant
  rehabilitative spousal maintenance in the amount of $600 per month through
  December 1999, "at which time [Arbuckle's] obligation to pay maintenance
  shall be concluded."  It is undisputed that Arbuckle paid spousal
  maintenance according to the terms of the final order, and that the term of
  the spousal maintenance order expired in December of 1999.

       ¶  3.  On January 3, 2003, appellant filed a motion for emergency
  modification of spousal support, and a motion for permanent modification of
  spousal support, pursuant to 15 V.S.A. § 758.  Appellant claimed that his
  inability to find suitable employment to maintain his former standard of
  living and to confront his financial obligations constituted a "real,
  substantial, and unanticipated change of circumstances," see 15 V.S.A. §
  758, that warranted modification of the maintenance award to provide him
  monthly support in the amount of $1500 for five years, or until he found
  employment that would permit him to maintain his former standard of living. 
  Arbuckle's response to appellant's motion maintained that a support order
  cannot be modified or reinstated after the rehabilitative maintenance
  period stated in the final order has expired.  After ordering the parties
  to file legal memoranda in support of their respective positions, the court
  held that the family court lacked subject matter jurisdiction in this case. 
  The court observed that "[t]he weight of authority holds that jurisdiction
  to modify an award of rehabilitative maintenance ends when the term of the
  alimony ends.  The rationale is that otherwise, the finality of divorce
  would be illusory."
   
       ¶  4.  On appeal, appellant claims that the court erred in determining
  that it had no jurisdiction over this case because the family court always
  maintains jurisdiction over its orders, and because 15 V.S.A. § 758
  specifically allows the court to modify maintenance awards.  Appellant
  further argues that the family court's decision is not supported by the
  policy of finality and that finality should, in any case, be balanced by
  all other considerations of equity.

       ¶  5.  In asserting that the court had jurisdiction over the case,
  appellant contends that the Vermont Constitution commands the courts to
  administer justice without limitation, and this obligation should be
  construed to confer a court with continuing jurisdiction over its own
  orders.  See Vt. const. Ch. II, § 28 ("The Courts of Justice shall be open
  for the trial of all causes proper for their cognizance; and justice shall
  be therein impartially administered, without corruption or unnecessary
  delay.").  We find this argument without merit.  The jurisdiction of the
  family court to review its own orders is generally limited by res judicata
  principles.  See  Tudhope v. Riehle, 167 Vt. 174, 177-78, 704 A.2d 765, 767
  (1997) (collateral attacks on validity of divorce order and settlement
  agreement incorporated therein are barred under principles of res
  judicata).

       ¶  6.  Appellant argues that, in any event, 15 V.S.A. § 758
  expressly authorizes the court to modify an award of maintenance at any
  time.  The statute provides, "On motion of either party and due notice, and
  upon a showing of a real, substantial, and unanticipated change of
  circumstances, the court may from time to time annul, vary or modify a
  judgment relative to maintenance . . . ."  15 V.S.A. § 758.  Appellant
  claims that the plain language of the statute ("from time to time") evinces
  the Legislature's intent to vest the court with jurisdiction to review a
  maintenance judgment periodically, without any time limiting factors. 
  Relying on Cleverly v. Cleverly, 147 Vt. 154, 513 A.2d 612 (1986),
  appellant further asserts that this Court has already recognized that § 758
  permits modification of rehabilitative maintenance awards whenever it
  determines that the original order has proved insufficient to allow the
  recipient to become self-supporting.  We disagree.

       ¶  7.  We have not addressed the issue of whether the family court has
  subject matter jurisdiction to modify an award of rehabilitative
  maintenance after the term of rehabilitative maintenance has expired. 
  Appellant's reliance on Cleverly is misplaced.  The issue in Cleverly was
  whether a rehabilitative maintenance award pursuant to 15 V.S.A. § 752(b)
  must have a definite termination date, and we held that it must.  Cleverly,
  147 Vt. at 159, 513 A.2d  at 615.  We explained in passing that although "it
  may be difficult for the trial court to predict the exact length of time
  required for the recipient to become self-supporting . . . if the recipient
  has not achieved self-sufficiency during the time period established, he or
  she may petition the court for modification of the order pursuant to 15
  V.S.A. § 758."  Id. at 159-60, 513 A.2d  at 615.  Because it was not at
  issue in the case, we did not address whether the court's power to modify
  the award terminated at any point in time.

       ¶  8.  We have previously held, however, that the family court may not
  modify a divorce decree by awarding maintenance, where the original decree
  did not provide for maintenance.  See Meier v. Meier, 163 Vt. 608, 610, 656 A.2d 212, 214 (1994) (mem.); Burroughs v. Burroughs, 132 Vt. 34, 36, 316 A.2d 522, 523 (1973).  For this reason, a court may award maintenance in a
  nominal amount, to preserve the court's ability to modify the award later
  in the event of a "real, substantial and unanticipated change in
  circumstances." Henry v. Henry, 162 Vt. 613, 613, 643 A.2d 845, 845-46
  (1994) (mem.).  Absent such preservation, the court cannot order
  maintenance at a later time, even if the financial situation of one of the
  spouses would warrant it.
   
       ¶  9.  Appellant's position does not differ logically from the
  litigant initially denied maintenance who, years after the final divorce
  decree, finds himself in financial need.  If, absent a maintenance order,
  the spouses' duty to support each other expires at the time of the final
  divorce decree without possibility of modification, it follows that where
  the decree provided maintenance for a specified period of time, the former
  spouse's duty to support the beneficiary is equally terminated at the end
  of such period.  "In other words, the support requirements may be modified
  so long as the duty to support exists, but not thereafter."  In re Marriage
  of Park, 602 P.2d 1123, 1124 (Or. Ct. App. 1979).   We therefore hold that
  rehabilitative maintenance awards cannot be modified after the term of
  rehabilitative maintenance has expired.
   
       ¶  10.  Our holding is in accord with the overwhelming majority of
  jurisdictions that have considered the issue. See, e.g., Banks v. Banks,
  336 So. 2d 1365, 1367 (Ala. Civ. App. 1976) (adopting reasoning of other
  jurisdictions that alimony can be modified as long as it is modified before
  termination date); Mercer v. Mercer, 641 P.2d 1003, 1005 (Idaho 1982)
  (trial court cannot modify alimony after time fixed in original decree has
  expired); Eckert v. Eckert, 216 N.W.2d 837, 841 (Minn. 1974) (trial courts
  have statutory power to modify or terminate alimony but cannot reinstate it
  "unless jurisdiction to thereafter reinstate alimony in the matter is
  reserved"); Doerflinger v. Doerflinger, 646 S.W.2d 798, 800-01 (Mo. 1983)
  (en banc) (overruled on other grounds by Cates v. Cates, 819 S.W.2d 731
  (Mo. 1991)) (term or amount of periodic maintenance may not be reviewed
  after the payment term has run); Bellefeuille v. Bellefeuille, 636 N.W.2d 195, 198-99 (N.D. 2001) (trial courts must retain jurisdiction when facing
  uncertainty about need for permanent support thereby leaving award open for
  later modification, but if court does not retain jurisdiction, decree
  cannot be modified after expiration of maintenance term); Welke v. Welke,
  288 N.W.2d 41, 42 (Neb. 1980) (where alimony payments had occurred in full
  prior to application to modify, "the original decree could not, under the
  [divorce] statute, be subsequently modified to provide for additional
  amounts of alimony"); Marriage of Park, 602 P.2d  at 1124-25 (once duration
  of time for support has passed, supporting spouse no longer has a duty to
  pay); Brown v. Brown, 507 P.2d 157, 158-59 (Wash. Ct. App. 1973) (alimony
  can be modified during term of payment, but if there is no modification,
  once payment term ends, "the obligation is forever extinguished"); Fobes v.
  Fobes, 368 N.W.2d 643, 645 (Wis. 1985) (overruled on other grounds by
  Rohde-Giovanni v. Baumgart, 676 N.W.2d 452 (Wis. 2004)) ("[A] judgment
  respecting the amount and terms of payment of limited maintenance [may be
  altered] so long as the petition seeking revision is filed prior to the
  termination date of limited maintenance under the judgment."); Harshfield
  v. Harshfield, 842 P.2d 535, 537 (Wyo. 1992) (petition to divide
  ex-husband's pension thirteen years after divorce decree barred as res
  judicata where court originally considered pension as marital property and
  alimony was awarded for two years only).  But see In re Marriage of
  Wessels, 542 N.W.2d 486, 489 (Iowa 1995) (reconsideration of maintenance
  award may be justified in extraordinary circumstances, "so extreme in their
  nature as to render the initial understanding grossly unfair and therefore
  subject to change"). 

       ¶  11.  Our holding also serves the paramount policy of guaranteeing
  the finality of a divorce decree.  " '[T]here is no area of law requiring
  more finality and stability than family law.' " Hilaire v. DeBlois, 168 Vt.
  445, 448, 721 A.2d 133, 136 (1998) (quoting Hackley v. Hackley, 395 N.W.2d 906, 914 (Mich. 1986)).  Once a divorce decree is final and the maintenance
  order has expired, neither the parties nor the court should be burdened by
  the inevitable uncertainty that would flow from a perpetually unresolved
  maintenance award.

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Chief Justice