Strauss v. Strauss

Annotate this Case
STRAUSS_V_STRAUSS.91-334; 160 Vt. 335; 628 A.2d 552

 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. 91-334

 Michael J. Strauss                           Supreme Court

                                              On Appeal from
      v.                                      Chittenden Family Court

 Roberta J. Strauss                           November Term, 1992

 Matthew I. Katz, J.

 Charles R. Tetzlaff of Latham, Eastman, Schweyer & Tetzlaff, P.C., for

 Karen Rush Shingler, Burlington, for defendant-appellant

 PRESENT:  Gibson, Dooley, Morse and Johnson, JJ.

      DOOLEY, J.   The sole issue in this appeal from a final divorce order
 of the Chittenden Family Court is whether defendant Roberta Strauss is
 entitled to permanent maintenance, rather than time-limited rehabilitative
 maintenance, from her husband Michael Strauss.  We hold that she is so
 entitled and reverse and remand.
      At the time of the divorce in 1991, defendant was forty-eight years old
 and plaintiff was fifty-one years old.  They were married in 1963, and
 shortly thereafter plaintiff earned a Ph.D. in chemistry.  Following a short
 post-doctoral program in Scotland, they settled in Burlington when plaintiff
 obtained a job at the University of Vermont, where he has since become a
 tenured professor of chemistry.
      The parties raised two children, both of whom are now adults.
 Defendant attended the University of Vermont and in 1976 was awarded a
 degree in psychology, earning phi beta kappa honors.  In 1990, she obtained
 a fifth-year certificate in order to teach school and has become licensed as
 a teacher.  She has worked outside the home only infrequently, as a retail
 sales clerk and as an editor for a local magazine.  At the time of the
 divorce hearing, she was working on a bicentennial project as a volunteer.
      Plaintiff's income is about $58,000 per year, of which about $5000
 comes from a government grant that will expire soon.  He is expected to
 have a stable income until he retires at age sixty-five.
      The major assets of the parties were a house and a camp, with equity
 values respectively of $106,000 and $40,000, and plaintiff's pension, with a
 present value of $211,000.  The family court awarded the house to defendant
 and the camp to plaintiff and split the pension between them.  Defendant
 requested a maintenance award, and the court agreed she was entitled to
 maintenance, but concluded:
         The wife here is being awarded the marital home with a
         relatively small mortgage and low monthly payments.  She
         is capable of working, although she is not likely to
         quickly locate a permanent job which will meet her
         reasonable needs.  We decline to conclude that she will
         never be able to find such a job.  This is a clear case
         for rehabilitative alimony.  We have here a woman who is
         healthy, intelligent and not tied down to the care of
         children.  To conclude that she should be awarded
         permanent alimony would be to conclude that she is some
         sort of social misfit who will never be able to support
         herself.  The evidence nowhere supports such a
         conclusion.  This is a case for rehabilitative
         maintenance. . . .  One of its purposes is to put
         pressure on the recipient to find employment or to
         undertake education or training which will lead to

 The court awarded maintenance of $1500 per month until the end of 1993,
 $1000 per month until the end of 1995, and $500 per month until the end of
 1997.  It added an award of up to $100 per month during the maintenance
 period to cover uninsured "counselling or therapy as is reasonably likely to
 enhance the wife's employability."
      The court's conclusion was based in part on evidence of an employment
 counselor who testified that defendant's prospects of finding a teaching job
 were poor because of her age, her lack of experience, and the recession's
 effect on the labor market.  He felt that defendant might be able to obtain
 work in the service sector, but even there, jobs were limited and the work
 would be low-paying and possibly only part-time.  The employment counselor
 noted that defendant has certain idiosyncracies that gave employers a
 negative impression at job interviews.  The court's findings reflect most of
 this evidence, and the award for counseling was intended in part to overcome
 the idiosyncracies.
      The relevant statute, 15 V.S.A. { 752(a), authorizes an award of
 maintenance, either rehabilitative or permanent, when the recipient spouse
 lacks sufficient income or property "to provide for his or her reasonable
 needs" and "is unable to support himself or herself through appropriate
 employment at the standard of living established during the marriage."  The
 reference to reasonable needs should not be looked at in relation to
 subsistence.  Downs v. Downs, 154 Vt. 161, 166, 574 A.2d 156, 159 (1990).
 The critical comparison is to the standard of living established during the
 marriage.  See Johnson v. Johnson, 155 Vt. 36, 40-41, 580 A.2d 503, 506
 (1990).  Thus, spousal maintenance is intended to correct the vast
 inequality of income resulting from the divorce, Russell v. Russell, 157 Vt.
 295, 299, 597 A.2d 798, 800 (1991), and to equalize the standard of living
 of the parties for an appropriate period of time.  Downs v. Downs, ___ Vt.
 ___, ___, 621 A.2d 229, 230 (1993).
      In a long-term marriage, maintenance also serves to compensate a
 homemaker for contributions to family well-being not otherwise recognized in
 the property distribution.  See Klein v. Klein, 150 Vt. 466, 474, 555 A.2d 382, 387 (1988).  This is more than a "rehabilitative function."  Russell,
 157 Vt. at 299, 597 A.2d  at 800.  The purpose of rehabilitative maintenance
 is to assist the recipient-spouse in becoming self-supporting.  See Belanger
 v. Belanger, 148 Vt. 202, 204-05, 531 A.2d 912, 914 (1987) (court awarded
 time-limited maintenance to give wife opportunity to establish herself
      The statute authorizes both rehabilitative and permanent maintenance
 and states no preference between these approaches.  See Russell, 157 Vt. at
 299, 597 A.2d  at 800-01.  Our cases require that rehabilitative maintenance
 be time-limited, Cleverly v. Cleverly, 147 Vt. 154, 159, 513 A.2d 612, 615
 (1986), but give little guidance on when time limits should be imposed.
 Given the wide discretion available to the trial court in fashioning a
 maintenance award, we have generally affirmed the approach adopted by the
 trial court.  See, e.g., Quesnel v. Quesnel, 150 Vt. 149, 151, 549 A.2d 644,
 646 (1988) (maintenance award must be affirmed unless "there is no
 reasonable basis to support" it).  We have noted the power to modify a
 maintenance award in the future if predictions about the recipients' ability
 to become self-supporting prove erroneous.  See Cleverly, 147 Vt. at 159-60,
 513 A.2d  at 615.  We emphasized in Klein, however, that "rehabilitative
 maintenance alone would not be sufficient unless the court can find, based
 on the evidence, that defendant will be able to support herself at the
 standard of living established during the marriage."  Klein, 150 Vt. at 476,
 555 A.2d  at 388.
      Although we have not clearly defined when maintenance should be time-
 limited, the considerations we have used in affirming trial court decisions
 are instructive.  In Bancroft v. Bancroft, 154 Vt. 442, 578 A.2d 114 (1990),
 we affirmed a five-year award of rehabilitative maintenance at the termina-
 tion of an eleven and one-half year marriage.  At the time of the divorce,
 the wife was in a professional position earning $30,000 per year while the
 husband was earning $40,000 per year.  The trial court grounded the award on
 the reduction of the wife's earning capacity that resulted from a relocation
 necessary to further the husband's education.  We concluded that equalizing
 the parties' financial status for an appropriate period was a proper
 purpose.  Id. at 446, 578 A.2d  at 117.
      At the other extreme is Russell v. Russell, 157 Vt. at 298-99, 597 A.2d 
 at 800-01, where we affirmed an award of permanent maintenance, over
 challenge by the husband, to a forty-four year-old wife after a twenty-five
 year marriage.  The wife had been a homemaker, raising four children, and
 had limited work experience outside the home.  She was a diabetic.  We noted
 that "the prospects that she would remotely approach the husband's earning
 capacity were slim" and concluded that the award served to maintain the wife
 at the standard of living established during the marriage as well as
 compensate her for her service as a homemaker.  Id.
      Although there are no definitive standards in Bancroft or Russell, it
 is clear that we found important the length of the marriage, the role the
 wife played during the marriage, and the income the wife is likely to
 achieve in relation to the standard of living set in the marriage.  These
 are the most critical factors that have been considered by other courts in
 determining whether time-limited maintenance is appropriate.  See In re
 Morrison, 573 P.2d 41, 51-52, 143 Cal. Rptr. 139, 149-50 (1978); Walter v.
 Walter, 464 So. 2d 538, 539 (Fla. 1985); Frost v. Frost, 581 S.W.2d 582,
 584-85 (Ky. Ct. App. 1979); Johnson v. Steel, Inc., 581 P.2d 860, 863-64
 (Nev. 1978); Herring v. Herring, 335 S.E.2d 366, 368-69 (S.C. 1985).
      We cannot find a recognition of the important factors in the trial
 court's decision here.  The court recounted defendant's limited employment
 history and stated that it was unlikely she would obtain a teaching job.  It
 concluded, however, that defendant would be able to obtain some sort of job
 because she is not a social misfit, and it awarded rehabilitative
 maintenance for that reason.  There is no finding that the job would produce
 an income that would enable defendant to live at the standard established
 during the marriage, as required by Klein.(FN1) Nor is there any consideration
 of defendant's long-term contribution as a homemaker and primary caretaker
 of the children.  Although we accord wide discretion to the court in
 fashioning a maintenance award, the award must be supported by sufficient
 findings.  See Sullivan v. Sullivan, 147 Vt. 407, 408, 518 A.2d 33, 34
 (1986).  The findings are insufficient to support the court's determination
 that maintenance should be time-limited.  See Johnson v. Steel, Inc., 581 P.2d  at 864 (award of rehabilitative maintenance reversed where there are no
 findings that spouse will earn enough to equal the maintenance); Therrell v.
 Therrell, 383 S.E.2d 259, 261 (S.C. Ct. App. 1989) (rehabilitative main-
 tenance award reversed because of lack of finding spouse will achieve self-
 sufficiency at end of maintenance period).
      Although we have narrowly addressed the question before us, we find it
 appropriate to go further to define the limits of the discretion available
 to the trial court.  See Klein, 150 Vt. at 472, 555 A.2d  at 386.  The main
 difficulty in fashioning an appropriate maintenance award is in predicting
 "the future circumstances of the parties."  Klein v. Klein, 153 Vt. 551,
 557, 572 A.2d 900, 904 (1990).  Although an award based on an inaccurate
 prediction can be modified in the future, we do a disservice to those who
 use our courts if we lock them into continuous, expensive litigation.
 Indeed, a major purpose of rehabilitative maintenance, to allow the spouses
 to get on with independent lives, will be frustrated by the continuing
 litigation.  Moreover, it may be impossible for a spouse with an inadequate
 income to pay for necessities to obtain timely court action to modify a
 maintenance award.  Thus, while it is theoretically possible to eliminate
 the time limitation and convert a rehabilitative maintenance award into a
 permanent award if predictions about the recipient's ability to become
 adequately self-supporting prove optimistic, we must minimize the cases in
 which such conversion is necessary.  See Frost, 581 S.W.2d  at 584 (time-
 limited maintenance appropriate only when spouse "will clearly be self-
 sufficient at the end of that period").
      The evidence in this case showed that it was extremely unlikely that
 defendant would ever be able to achieve a sufficient income to maintain the
 middle-class living standard established during the marriage.  Although
 defendant is better-educated than many others, she is a displaced homemaker
 whose age, gender and lack of employment experience greatly limit her
 earning potential.  See Goldfarb, Marital Partnership and the Case for
 Permanent Alimony, 27 J. Fam. L. 351, 368 (1988-89); Comment, The Displaced
 Homemaker and the Divorce Process in Wisconsin, 1982 Wis. L. Rev. 941, 942.
 Moreover, she has served for many years as a homemaker whose contribution to
 the earning capacity of her husband is entitled to recognition.  A time-
 limited maintenance award is likely to leave her with an inadequate income
 at the end of the time limit and no compensation for her years as a home-
 maker.  See Crim v. Crim, 345 S.E.2d 515, 518 (S.C. Ct. App. 1986) (on
 similar facts, court states that it "would deny reality" to believe spouse
 would achieve the standard of living of the marriage").  In light of
 defendant's age, the length of the marriage and her lack of work
 experience, we hold that as a matter of law defendant is entitled to some
 amount of periodic maintenance of indefinite duration.(FN2) This holding is
 consistent with that of courts in other jurisdictions.  See Krauskopf,
 Rehabilitative Alimony: Uses and Abuses of Limited Duration Alimony, 21 Fam.
 L.Q. 573, 579 (1988) ("The overriding effect of the recent cases . . . is
 that limited-time alimony is abused when applied to traditional homemakers
 in lengthy marriages").
      In reaching this holding, we recognize that one of the purposes of
 rehabilitative maintenance is to provide an economic incentive for the
 recipient spouse to achieve self-sufficiency.  Although we doubt that the
 level of maintenance that can be supported by plaintiff's income will
 eliminate the need for plaintiff to achieve a measure of self-sufficiency on
 her own, we believe an appropriate mixture of permanent and time-limited
 maintenance can achieve fully all the objectives of a maintenance award.
      Reversed and remanded.

                                         FOR THE COURT:

                                         Associate Justice

FN1.    In view of our holding that defendant is entitled to maintenance,
 infra, we do not decide whether the court could have made such a finding on
 the evidence present here.

FN2.    Defendant argues that she is independently entitled to permanent
 maintenance under Downs v. Downs, 154 Vt. 161, 574 A.2d 156 (1990) to
 compensate her for her contribution to plaintiff's career as a college
 professor.  There are important distinctions between this case and Downs.
 Defendant did not forego her career to put plaintiff through school as in
 Downs.  More important, unlike Downs, defendant realized the rewards of
 plaintiff's professional success during the lengthy marriage.  We do not
 believe that the Downs holding represents an independent ground for
 awarding permanent maintenance to defendant.

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