Shaw v. Shaw

Annotate this Case
SHAW_V_SHAW.93-399; 162 Vt. 338; 648 A.2d 836

[Opinion Filed July 8, 1994]

 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. 93-399

 Dorothy M. Shaw                              Supreme Court

                                              On Appeal from
      v.                                      Chittenden Family Court

 Normand J. Shaw                              March Term, 1994

 Alden T. Bryan, J.

 John C. Gravel of Bauer, Anderson, Gravel & Abare, Burlington, for

 John J. Bergeron and Norman C. Smith of Bergeron, Paradis, Fitzpatrick &
    Smith, Burlington, for defendant-appellant

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

      GIBSON, J.   Husband appeals from an order of the Chittenden Family
 Court denying his motion for termination of rehabilitative maintenance, but
 adjusting the payment schedule in light of his new employment and lower
 income.  We affirm.
      The parties were divorced in 1991, pursuant to a stipulation providing
 that husband would pay wife $500 per month for a period of ten years as
 rehabilitative maintenance.  Husband was then earning $44,000 a year at IBM,
 where he had been employed for twenty-seven years.


      About ten months after the divorce, husband was fired from his job, due
 in part at least to his unauthorized purchase of a pickup truck from an IBM
 vendor about eight years before the divorce.  Husband was unemployed for
 about nine months, during which time the court granted his motion to suspend
 maintenance payments.  After he obtained a job as a car salesman, wife moved
 to enforce the payment of maintenance, and husband moved to modify the
 original order on grounds that he could not afford to make the required
      At the time of the hearing on the motions, husband had an average
 weekly gross income of $278, or about $1,200 per month.  He testified that
 he could not afford to live on his own, and was living with his parents,
 paying room and board.  At the time of the hearing, wife had a monthly
 income of approximately $1438, consisting of $836 in unemployment
 compensation, $452 for taking care of a granddaughter, and about $150 from a
 part-time sales job.
      The court found that husband could not meet a $500-per-month payment
 obligation and ordered as follows:
           As of this date, the defendant is current in his
         payments, not counting the period during which his
         payments have been suspended.  The plaintiff agrees that
         he has paid $7,500 to date, and we so find.

           We decline to modify his maintenance obligation.  He
         was fired from IBM for wrongdoing of a serious nature.
         One who causes himself to lose his job cannot, in this
         court at least, walk away from a maintenance obligation.
         His obligation is for $500 per month for 10 years.  That
         order . . .  shall remain in full force and effect.  How-
         ever, the defendant's obligation will remain suspended
         until he earns $1000/month.  All net earnings over $1,000
         per month shall be paid toward his maintenance obligation
         ($60,000, less the amounts paid to date) until the full
         maintenance obligation is paid in full.

 This appeal followed.


      Husband argues that the trial court erred in declining to vacate his
 maintenance obligation because it found that he was fired for "wrongdoing of
 a serious nature."  According to husband, the court ruled, in effect, that
 he had become unemployed voluntarily and was therefore not eligible to seek
 modification.  Voluntary termination of employment without good reason by an
 obligor spouse will disqualify the spouse for modification.  Jacobs v.
 Jacobs, 144 Vt. 124, 127, 473 A.2d 1165, 1167 (1984).  Wrongdoing that
 results in diminished income may fall within the category of voluntary
 termination of employment and bar modification of maintenance on grounds of
 changed circumstances.  See, e.g., Waskin v. Waskin, 484 So. 2d 1277, 1278-
 79 (Fla. Dist. Ct. App. 1986) (modification not warranted where adverse
 impact on former husband's financial condition was caused by publicity and
 expense of defending against criminal charges resulting from voluntary act
 of seeking to hire someone to murder former wife); Noddin v. Noddin, 455 A.2d 1051, 1053-54 (N.H. 1983) (modification not warranted where husband was
 fired for stealing trade secrets from employer).
      We agree with husband that the wrongdoing in this case would not
 support a conclusion that his loss of employment was voluntary.  The firing
 came after the divorce, but was triggered by events that had occurred eight
 years earlier.  There was no evidence that, at the time of the divorce,
 either party had any reason to believe husband would lose his job because of
 his prior actions.
      Wife contends that because husband was under investigation a year
 before the divorce for alleged criminal activities, the subsequent term-
 ination was not unanticipated within the meaning of { 758.  She contends
 that "the facts as found by the trial court" reflect that the termination


 was anticipated, and points to husband's testimony that the parties had
 discussed the possibility of his losing his job as a result of the
 investigation.  But the criminal investigation ended before the parties
 entered into their stipulation, and the testimony does not suggest that the
 amount of maintenance determined through negotiation was affected in any way
 by the possibility of a later job loss.  Cf. Chaney v. Chaney, 699 P.2d 398,
 401-02 (Ariz. Ct. App. 1985) (though future retirement was contemplated when
 decree issued, date was speculative and did not bar later modification);
 Lambertz v. Lambertz, 375 N.W.2d 645, 646 (S.D. 1985) (though trial court
 was aware that husband might retire after decree issued, evidence was
 speculative and did not bar modification based on substantial reduction in
 income).  Wife in fact concedes that there were several reasons for
 husband's termination and that it was not possible to determine that the
 sole reason was the unauthorized purchase of the vehicle.
      Nevertheless, despite declining to vacate the maintenance obligation
 entirely, the court did adjust the payment schedule in accordance with
 husband's current ability to pay.  See Gil v. Gil, 151 Vt. 598, 599, 563 A.2d 624, 625 (1989).  Husband's total obligation was not reduced, but the
 change in the payment conditions, particularly the sheltering of the first
 $1,000 of his monthly income, was significant.  As of the date of the
 hearing, husband had an average monthly gross income of about $1,200 per
 month.  Based on these figures, he would be obligated to pay $200, rather
 than $500, to wife each month -- a significant improvement in the amount
 remaining for his own monthly expenses.
      Husband has not demonstrated that the court erred in declining to
 eliminate his maintenance obligation entirely.  The evidence at the


 modification hearing was consistent with a significant future earning
 capacity for husband, despite the limited potential in his present
 occupation.  See Mancini v. Mancini, 143 Vt. 235, 240, 465 A.2d 272, 275
 (1983) (though attempts to find higher paying job had been unavailing,
 evidence did not indicate that husband's earning capacity had diminished);
 cf. Nelson v. Nelson, 371 N.W.2d 19, 22 (Minn. Ct. App. 1985) (despite
 involuntary retirement, husband still had burden of demonstrating
 substantial change in circumstances).
      Husband contends that the court erred by converting the rehabilitative
 maintenance obligation into a lump-sum property award.  He argues that
 because it is unclear when the full amount of maintenance will be paid, the
 characterization of the payments as maintenance is incorrect: "It could take
 the husband the rest of his life to settle this obligation with his former
 wife.  This is not the function of rehabilitative maintenance."  We believe
 husband misconstrues the court's order.
      Lump-sum alimony, which is authorized in some states, is a fixed amount
 set forth in a final judgment, and cannot be modified even if there should
 be a change of circumstances.  See Scoville v. Scoville, 426 A.2d 271, 273
 (Conn. 1979).  There is no suggestion of any kind of lump-sum award in the
 present order.  The original order required a stream of rehabilitative
 maintenance payments over a ten-year period, totalling $60,000 -- 120
 payments of $500.  But there is no basis in the amended order to conclude
 that $60,000 is a fixed amount due and owing as of the date of the order or
 at any future date.  Under the amended order, payments might be made in odd
 amounts from month to month, depending on husband's income.  Reference to
 the total amount of $60,000 is included to indicate that when that total is


 paid the maintenance obligation will be discharged, and to emphasize that a
 portion of husband's monthly obligation under the original order has been
 deferred, not eliminated.  There is nothing in the order to bar modification
 under { 758, should that become necessary.
      Nor does the amended order violate the requirement that a court impose
 a time limit on rehabilitative maintenance.  See Cleverly v. Cleverly, 147
 Vt. 154, 159, 513 A.2d 612, 615 (1986).  Nothing in the court's order
 eliminates the ten-year goal.  Further, it is not clear that husband will
 be unable to increase his monthly income in the future.  It would be
 detrimental to the purposes of rehabilitative maintenance if the only option
 for a court faced with a similar situation were to reduce the amount of
 maintenance or eliminate it altogether, to stay within the initially
 prescribed period for rehabilitative maintenance payments.

                                    FOR THE COURT:

                                    Associate Justice