Justis v. Rist

Annotate this Case
 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.


                                 No. 91-297


 Charlotte A. Justis                          Supreme Court

                                              On Appeal from
      v.                                      Chittenden Family Court

 Gilbert W. Rist                              December Term, 1991



 Matthew I. Katz, J.

 James W. Murdoch of Wool, Murdoch & Hughes, Burlington, for plaintiff-
   appellee

         Lloyd A. Portnow, Samuel H. Press (Of Counsel), and Ira N. Morris, Law
   Clerk, of Portnow, Little & Cicchetti, P.C., Burlington, for defendant-
   appellant


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



      JOHNSON, J.   This appeal from a divorce order presents the issue of
 whether the family court has the authority to order the estate of the
 obligor spouse to continue maintenance payments in the event the obligor
 predeceases the recipient spouse.  We conclude that Vermont statutory law
 provides no such authority, and, accordingly, vacate the family court's
 order and remand the case for further proceedings.
      The parties married in 1977, four months after they had met.  It was
 the first marriage for the 62-year-old husband and the fourth for the 48-
 year-old wife.  During the entire thirteen-year marriage, the parties kept
 separate finances, resided in different states, and were apart except for
 approximately four months.
      The wife requested a property settlement in lieu of maintenance, but
 the court felt that "in light of the unique nature of this marriage, [the
 wife's] needs are better met through a maintenance award."  The court
 indicated that a property settlement was not appropriate because the husband
 had acquired most of his property, valued at about $500,000, long before the
 marriage.  Further, the court stated that it wanted to ensure reasonable
 support for the wife during her life without creating a windfall for her
 estate if there were a large property settlement and the wife, whose health
 was precarious, died soon thereafter.
      Accordingly, the court ordered the husband to pay the wife $40,000 in a
 lump-sum property settlement and $1600 per month in permanent maintenance,
 said maintenance to cease "only upon the death of the Plaintiff and . . .
 [to] be otherwise payable from the estate of the Defendant should he
 predecease her."  The court further ordered that a lien in the sum of
 $180,000 be placed on the husband's real estate to secure the maintenance
 payments.  In support of its authority to order post-mortem maintenance, the
 court noted that Vermont law gives the family court broad discretion in
 fashioning maintenance awards, and that other jurisdictions with statutes
 similar to Vermont's had ruled that the courts could order maintenance to
 continue beyond the death of the obligor spouse.  The husband appeals from
 that ruling.
      Vermont's maintenance statute, 15 V.S.A. { 752, authorizes the trial
 court to order either spouse to make rehabilitative or permanent maintenance
 payments if the other spouse lacks sufficient income to meet reasonable
 needs and is unable to maintain the standard of living established during
 the marriage.  The payments "shall be in such amounts and for such periods
 of time as the court deems just, after considering all relevant factors."  {
 752(b).  One of the factors listed is "the ability of the spouse from whom
 maintenance is sought to meet his or her reasonable needs while meeting
 those of the spouse seeking maintenance."  { 752(b)(6).  Once the court has
 found grounds for awarding maintenance, "it has broad discretion in
 determining the duration and amount" of the award.  Chaker v. Chaker, 155
 Vt. 20, 25, 581 A.2d 737, 740 (1990).
      Despite the trial court's broad discretion to fashion maintenance
 awards, no statutory language expressly authorizes the court to continue
 maintenance beyond the death of the obligor.  Whether the failure to address
 the issue of post-mortem maintenance was by design or omission is not
 apparent from the language of the statute itself.  One of the few clues we
 have in the statute is that the trial court must consider the reasonable
 needs of the obligor spouse when awarding maintenance.  This indicates that
 the legislature assumed the payments would be coming from the obligor
 personally rather than from the estate.  On the other hand, { 752
 authorizes the court to order "permanent" maintenance, which some may argue
 shows the legislature's intent to allow maintenance to be measured by the
 death of the recipient.  But "permanent" maintenance has traditionally been
 construed to be an indefinite award that ends with the death of either
 spouse or the remarriage of the recipient spouse.  2 H. Clark, The Law of
 Domestic Relations { 17.5, at 264 (2d ed. 1987).
      Because the statutory language is inconclusive on intent, we consider
 the context in which { 752 was amended and the state of the law on post-
 mortem maintenance at that time.  Section 752 was amended in 1981 as part of
 the legislature's general reform of divorce and support law in this state.
 See 1981, No. 247 (Adj. Sess.).  Many of the new provisions, including {
 752, follow closely the Uniform Marriage and Divorce Act, 9A U.L.A. 147
 (1987) (Uniform Act).  For example, both { 752 and { 308 of the Uniform Act
 state that the maintenance order shall be in amounts and for such "periods
 of time" as "the court deems just."  The legislature, however, did not adopt
 { 316(b) of the Uniform Act, which states, in relevant part, that the
 obligation to pay maintenance terminates upon the death of either party
 unless the parties agree, or the court expressly orders otherwise.
      At the time { 752 was enacted, the generally accepted common-law rule
 was that the obligation to pay maintenance ceased upon the death of either
 party.  See, e.g., Aldrich v. Aldrich, 163 So. 2d 276, 278-79 (Fla. 1964);
 Funnell v. Funnell, 584 P.2d 1319, 1322 (Okla. 1978).  The rationale for the
 rule was that a former spouse receiving maintenance could not have "a
 greater right to support from the obligated spouse than if the parties had
 remained married and the obligated spouse died."  Chaney v. Chaney, 343 Pa.
 Super. 77, 83, 493 A.2d 1382, 1386 (1985).  Another rationale was that,
 because maintenance compensates for the support from future income that
 would have been available but for the divorce, the right to it ends along
 with the income-earning capacity of the obligor.   Kuhns v. Kuhns, 550 P.2d 816, 817 (Alaska 1976).
      In many jurisdictions the common-law rule has been replaced by
 statutes, including those modeled after { 316 of the Uniform Act, that
 specifically state whether maintenance may be continued beyond the death of
 the obligor.  The courts in jurisdictions without explicit statutory
 language are divided on whether such authority may be derived from a general
 statute, like { 752, which gives the courts broad discretion to fashion
 maintenance awards.  Compare Ehrler v. Ehrler, 69 Misc. 2d 234, 235, 328 N.Y.S.2d 728, 729 (N.Y. Sup. Ct. 1972) (because statute contains no language
 expressly authorizing continuance of alimony after obligor's death, alimony
 terminates upon obligor's death)(FN1); McCune v. McCune, 284 S.C. 452, 455, 
 327 S.E.2d 340, 341 (1985) (family court exceeded its authority in ordering
 periodic alimony payments to continue after obligor's death) with In re
 Estate of Gustafson, 287 N.W.2d 700, 701-02 (N.D. 1980) (statute permitting
 court to make maintenance award as "may seem just" authorized continued
 payments during life of recipient spouse after obligor's death); Prather v.
 Prather, 172 W.Va. 348, 352, 305 S.E.2d 304, 309 (1983) (divorce court had
 power to make award of alimony payments binding on obligor's estate where
 statute empowered court to make award that it deemed expedient concerning
 the estate and maintenance of the parties).  See generally Annotation, Death
 of Obligor Spouse as Affecting Alimony, 79 A.L.R.4th 10 (1990).
      Given the absence of statutory language expressly authorizing post-
 mortem maintenance, the legislature's failure to adopt { 316 of the Uniform
 Act which authorized courts to order such payments, and the common-law rule
 proscribing post-mortem maintenance, we will not assume the legislature
 intended { 752 to override the generally accepted and long-established rule
 that the obligation to pay maintenance ceases upon the death of either
 party.  See O'Brien v. Island Corp., ___ Vt. ___, ___, 596 A.2d 1295, 1298
 (1991) (we must presume Legislature did not intend to overturn a long-
 established principle of law unless such an intention is clear); cf. Johnson
 v. Martin, 567 A.2d 1299, 1304 (D.C. App. 1989) (enactment of statute based
 on another law, but different in one or more provisions, shows intent not to
 follow the law in that regard).  To do so would amount to judicial legisla-
 tion.  Aldrich v. Aldrich, 163 So. 2d  at 280; cf. In re Marriage of Koktavy,
 44 Colo. App. 305, 306, 612 P.2d 1161, 1162 (1980) (legislature's adoption
 of { 316 of Uniform Act changed prior supreme court holding that divorce
 courts do not have authority to award alimony after obligor's death).
 Accordingly, we hold that the courts have no authority to order maintenance
 to continue beyond the life of the obligor spouse unless the parties have
 agreed otherwise.
      This is not to endorse the notion, as a matter of policy, that post-
 mortem maintenance awards should not be allowed by statute.  To the
 contrary, it is precisely because we recognize the compelling policy
 considerations both in favor of and against post-mortem maintenance, that we
 choose to leave this decision to the legislature.  2 H. Clark, The Law of
 Domestic Relations { 17.6, at 292-93 (2d. ed 1987) (there remains
 substantial conflict among states over whether courts should have authority
 to order alimony to continue after obligor's death, but the continuation of
 maintenance in most cases causes hardship, inconvenience and expense to the
 decedent's second family).  Compare In re Estate of Gustafson, 287 N.W.2d  at
 701 (common-law rationale, that no longer exists, for denying maintenance
 after death of obligor was that divorce did not fully terminate marriage so
 wife retained interest in her husband's estate) with Funnell v. Funnell, 584 P.2d  at 1324 (unless recipient spouse is a lawful creditor of the decedent
 pursuant to property or contract rights, that spouse should not be placed in
 a status that undercuts the decedent's second family, who have no legal duty
 to support); Kuhns v. Kuhns, 550 P.2d  at 818 (continuance of maintenance in
 most cases causes hardship to those closer to husband such as second wife
 and children of second marriage).  Unlike the Court, the legislature is able
 to consider all the policy ramifications that flow from a major change in
 the law and to harmonize other statutes, such as those on the administration
 of estates, if necessary, to effectuate new policy.
      We need determine here only whether the legislature, by enacting { 752,
 intended to give the courts the authority at issue in this case.  We
 conclude that it did not.
      Because our law requires the court to consider the property division
 and maintenance in conjunction with each other, see 15 V.S.A. { 751(b)(7)
 and { 752(a)(1), the property division must be vacated to allow the court
 leave to revise it, if necessary, and fashion an appropriate order
 consistent with the circumstances of this case.  Downs v. Downs, 154 Vt.
 161, 168, 574 A.2d 156, 159 (1990).
      The provisions of the May 24, 1991 divorce order dividing the parties'
 property and awarding maintenance are vacated; in all other respects, the
 order is affirmed.  The matter is remanded for further proceedings
 consistent with this opinion.


                               FOR THE COURT:


                               _____________________________________________
                               Associate Justice

FN1.    New York law now provides that "an award of maintenance shall
 terminate upon the death of either party."  See Keehn v. Keehn, 137 A.D.2d 493, 495-96, 524 N.Y.S.2d 238, 241 (1988) (quoting Domestic Relations Law {
 236(B)(1)(a)).


--------------------------------------------------------------------------------
                                 Dissenting

 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.


                                 No. 91-297


 Charlotte A. Justis                          Supreme Court

                                              On Appeal from
      v.                                      Chittenden Family Court

 Gilbert W. Rist                              December Term, 1991



 Matthew I. Katz, J.

 James W. Murdoch of Wool, Murdoch & Hughes, Burlington, for plaintiff-
   appellee

 Lloyd A. Portnow, Samuel H. Press (Of Counsel), and Ira N. Morris, Law
   Clerk, of Portnow, Little & Cicchetti, P.C., Burlington, for defendant-
   appellant


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



      MORSE, J., dissenting. (FN1) I cannot agree with the Court's conclusion
 that 15 V.S.A. { 752(a) does not provide a court with authority to award
 postmortem maintenance payments absent an agreement.  I find no language in
 15 V.S.A. { 752 limiting the family court's discretion in fashioning an
 order to achieve equitable results.  The statute is silent on the
 possibility for maintenance from the former spouse's estate.  The Court's
 construction of the statute injects a prohibition that simply does not
 exist.  See Johnson v. Johnson, 155 Vt. 36, 42, 580 A.2d 503, 507 (1990)
 (remarriage, unmentioned in { 752, does not terminate maintenance as a
 matter of law).
      In my view, the sounder approach is to focus on what the law does say,
 rather than on what it does not.  Vermont's statute on maintenance allows a
 court to "order either spouse to make maintenance payments, either rehabil-
 itative or permanent in nature, to the other spouse . . . ."  15 V.S.A. {
 752(a) (emphasis added).  An order for maintenance "shall be . . . for such
 periods of time as the court deems just, after considering all relevant
 factors," including the factors listed in 15 V.S.A. { 752(b)(1)-(7).  15
 V.S.A. { 752(a).  What could be simpler?  The Court's reasoning runs counter
 to the statute's purposes and plain meaning, and the holding narrows the
 enactment by judicial amendment.
      Not too long ago we held that a medical degree, with its attendant
 earning capacity, is not marital property under 15 V.S.A. { 751.  Downs v.
 Downs, 154 Vt. 161, 165, 574 A.2d 156, 158 (1990).  Yet in Downs we
 recognized that Vermont's maintenance statute, { 752, is "sufficiently
 flexible" to allow a court to consider future earning prospects of the
 student spouse.  Id. at 166, 574 A.2d  at 159.  After today's decision, { 752
 is not as flexible as I had thought, and I find no compelling reason to
 restrict a flexible approach.
      The explicit, specified, statutory criteria are eviscerated to give
 effect to a criterion not expressed in the statute at all.  All seven of the
 statute's "relevant factors" are defeated to enhance the inheritance of a
 second family, a factor nowhere mentioned in the statute.  In fact, today's
 ruling reduces the receipt of { 752 maintenance, permanent or rehabilita-
 tive, to a mere gamble contingent upon the vicissitude of an untimely death.
 I cannot believe the Legislature intended such misfortune.
      The facts here -- emphasized for effect but irrelevant to the holding
 -- are not a particularly compelling foundation on which to build a perma-
 nent maintenance award.  Yet, there are situations that would be compelling.
 For instance, suppose the wife in a thirty-year marriage had been the home-
 maker and chief caretaker for the children rather than pursuing a more
 economically gainful career.  Suppose also that, at the time of divorce, the
 husband had a medical condition preventing him from procuring life insurance
 and his wife's life expectancy was significantly greater than his.  Given
 the inflexibility of today's ruling, it would indeed tax a family court's
 imagination to protect the wife from taking an economic plunge should the
 husband die and maintenance stop.  Perhaps a trust could be established
 with marital assets.  See Naumann v. Kurz, 152 Vt. 355, 357-58, 566 A.2d 1342, 1343 (1989) (trust created from which spouse requesting maintenance
 received income).  Transferring a disproportionately larger share of marital
 property to the wife, however, may not be a fair way to protect her for the
 reason put forth by the Court in prohibiting postmortem maintenance -- the
 husband's potential estate would be reduced by an unfair imbalance in assets
 distributed to the parties.  Even if insurance on the husband's life for the
 benefit of the wife were possible, today's holding puts that alternative in
 doubt as an artful ploy to bypass the lack of authority to grant postmortem
 maintenance.  See Chaker v. Chaker, 155 Vt. 20, 23-24, 581 A.2d 737, 739
 (1990) (provision requiring husband to maintain wife as sole beneficiary of
 life insurance policy unchallenged); Quesnel v. Quesnel, 150 Vt. 149, 152,
 549 A.2d 644, 647 (1988) (where insurance policy is already in effect, court
 has authority to order insured party to maintain policy for benefit of
 spouse).
      No rationale supports the reading that a permanent award of maintenance
 ends, as a matter of law, when the obligor dies long before his time, and
 the one in need lives on.  In fact, as one commentator has pointed out, this
 rule "basically penalizes women because they statistically live longer than
 men."  Note, Alimony, Till Death Do Us Part, 27 J. Fam. L. 859, 860 (1989).
 No word or phrase in { 752, no policy, no rule of statutory construction,
 justifies such a senseless outcome.
      The Court's primary rationale for its position rests on factor (6):
 "the ability of the spouse from whom maintenance is sought to meet his or
 her reasonable needs while meeting those of the spouse seeking maintenance."
 According to the Court, this indicates that "the Legislature assumed the
 payments would be coming from the obligor personally rather than from the
 estate."  But that assumption is just as farfetched as the assumption that a
 property distribution under { 751 must be accomplished before a party dies,
 or it is lost.
      Furthermore, the Court's comparison of { 752 with the Uniform Marriage
 and Divorce Act explains little about the underlying legislative intent.
 The Legislature's failure to adopt { 316(b), which states that the obliga-
 tion to pay maintenance terminates upon the death of either party unless the
 parties agree, or the court expressly orders, cannot be a basis for con-
 cluding that Vermont's statute, allowing for permanent maintenance, does
 not authorize awards of postmortem maintenance.  If any significance is
 given to the failure of the legislature to adopt { 316(b), the stronger
 logical inference is that permanent maintenance extends beyond the death of
 the obligor when no time limit is specified in the judgment.  Otherwise,
 following the Court's reasoning to its logical extreme would result in a
 prohibition on postmortem maintenance even when the parties agree to it.
      In my view, Vermont law on domestic relations provides ample guidance
 in determining the goals of the Legislature.  The factors contained in { 752
 guide the court in examining the parties' present and potential financial
 situation, based on their resources, abilities and needs, in fashioning a
 maintenance award.  15 V.S.A. { 752(b)(1)-(2),(5)-(6).  This consideration
 also provides recompense for the nonfinancial contributions of a homemaker
 to the family's well-being, and promotes financial status quo by allowing
 the parties to achieve the same standard of living established during
 marriage.  Klein v. Klein, 150 Vt. 466, 474, 555 A.2d 382, 387 (1988); see
 15 V.S.A. { 752(3)-(4).  In sum, the statutory scheme protects the divorcing
 spouse with the lower income-producing capability from suffering a dispro-
 portionately diminished life-style after divorce.  The Court, however,
 dilutes this protection and eliminates it in some cases.  We have legislated
 out of existence a measure of protection the Legislature intended to include
 for the least economically viable party after divorce.
      The Court acknowledges that there are "policy considerations both in
 favor of and against post-mortem maintenance."  Nevertheless, it opts for
 the rule that prefers potential beneficiaries of the payor's estate over
 the real needs and deserved benefits of a living ex-spouse in every case,
 rather than balancing those policy considerations on a case-by-case basis.
 The statutory scheme, however, does not seek to apportion financial equity
 according to a hierarchy of people "closest" to the ex-spouse.  Although
 consideration for the payor's most current family may be one factor in
 allotting resources, it should not be the only element.   If the terms of
 the divorce order prove to be unduly burdensome, an aggrieved party may
 bring a motion to modify maintenance under 15 V.S.A. { 758.  See Scott v.
 Scott, 155 Vt. 465, 470, 586 A.2d 1140, 1143 (1990) ("vagaries of the
 future" adequately addressed by modification procedure); Johnson, 155 Vt. at
 42, 580 A.2d  at 506 (if period for alimony payments "proves too short or too
 long, the disadvantaged party can seek modification").  Furthermore, if, at
 the time of the divorce, there are adequate funds, then mechanisms such as
 life insurance and annuities should be used to allow periodic disbursement,
 which would not unduly encumber administration of the estate.
      As the Court points out, the decisions from other states are based on
 an archaic common-law rule that is inconsistent with modern rationales for
 the award of maintenance.  See, e.g., In Estate of Gustafson, 287 N.W.2d 700, 701 (N.D. 1980) (under common-law, divorced wife retained interest in
 exhusband's estate, justifying termination of maintenance after his death).
 Thus, we are blindly accepting an outmoded construction of the statute
 rather than following the wisdom of allowing trial courts to devise
 equitable outcomes based on all the circumstances.  This is regrettable,
 because the Court's reliance on unenlightened out-of-state precedent departs
 from our consistent trend of fostering equitable allocation of resources
 following divorce.  I am reminded of Holmes, The Path of Law, 10 Harv. L.
 Rev. 457, 469 (1897), where he said,
         It is revolting to have no better reason for a rule of
         law than that it was laid down in the time of Henry IV.
         It is still more revolting if the grounds upon which it
         was laid down have vanished long since, and the rule
         simply persists from blind imitation of the past.
      Because I believe that the statutory authority afforded by 15 V.S.A. {
 752 supports the trial court's ruling, I respectfully dissent.  Justice
 Dooley joins in this dissent.






                                    ______________________________________
                                    Associate Justice



FN1.       Because the majority has held that the court was without authority
 to continue maintenance beyond the obligor's death, we need not reach
 whether it was an abuse of discretion to order maintenance to continue
 beyond the obligor's death in this case.  Thus, I do not necessarily dissent
 to the result although I disagree with the reasoning.