Stickney v. Stickney

Sticknet v. Stickney (99-031); 170 Vt. 547; 742 A.2d 1228

[Filed 08-Oct-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-031

                            SEPTEMBER TERM, 1999


Gail L. Stickney	               }	APPEALED FROM:
	                               }
	                               }
     v.	                               }	Rutland Family Court
	                               }	
Peter C. Stickney                      }
	                               }	DOCKET NO. 356-8-90Rddm	


             In the above-entitled cause, the Clerk will enter:


       Plaintiff Gail Stickney appeals a reduction of the maintenance award
  she received in 1991  following her divorce from defendant Peter Stickney. 
  She argues that the trial court erred in  finding that there existed a
  change in circumstances, pursuant to 15 V.S.A. § 758, to justify such  a
  reduction.  She further argues that even if a change in circumstances
  exists, the court abused its  discretion by modifying her permanent spousal
  maintenance award from $1,800 per week to $0.  We affirm the trial court's
  finding that a change of circumstances has occurred, but reverse and 
  remand its finding that the maintenance award should be reduced from $1,800
  to $0.
	
       Plaintiff and defendant were married on August 26, 1966.  The marriage
  produced two children,  both of whom have attained the age of majority.  At
  the beginning of the marriage, plaintiff  worked as a medical secretary and
  provided most of the financial support for the parties while  defendant
  attended medical school.
	
       Following the birth of their first child in 1970, plaintiff stopped
  working outside the home.   After defendant's graduation from medical
  school that same year, defendant started a practice  and worked long hours
  establishing it.  During this time, plaintiff was the primary caregiver to 
  the children, managed the couple's finances and organized their social
  life.  In 1989, the couple  began to experience financial difficulties,
  brought on in part by their lavish spending and  defendant's back problems
  which rendered him unable to work for a period of time.  In August  1990
  plaintiff filed for divorce.
	
       After the parties had separated, plaintiff received financial and
  emotional support from Mark  Stickney, defendant's brother.  A divorce was
  granted on December 20, 1991.  In its decree, the  family court awarded
  plaintiff $1,800 in permanent maintenance, based in part on the fact that 
  plaintiff had been out of the work force for twenty years and had no
  experience or vocational  skills to enable her to support herself in a
  manner approximating the standard of living  established during the
  marriage.
	
       In June 1992, the parties entered into a stipulation agreement
  temporarily reducing defendant's  maintenance obligation to $1,200 per
  week.  This temporary reduction took into account the fact  that defendant
  had filed for bankruptcy and that he had agreed to assume the parties'
  significant  debt owed to the I.R.S.  Defendant's maintenance obligation
  would return to $1,800 per week by  June 1998 at the latest, according to a
  schedule based on his retiring of the party's tax  indebtedness.

 


       In January 1998, defendant filed a motion to modify spousal
  maintenance, alleging that his  income had failed to meet projected
  increases and his practice's operating expenses substantially  exceeded the
  court's projections anticipated in the final divorce order.  He further
  offered as  support for a change in circumstances the fact that plaintiff
  had made no effort to complete her  education and obtain employment as
  contemplated by the prior order, and that plaintiff's standard  of living
  had substantially improved because of the financial support she received
  from Mark  Stickney.

       Following a hearing on defendant's motion in July 1998, the court
  found defendant had met his  burden and demonstrated a change in
  circumstances which justified a downward modification of  maintenance for
  three reasons.  First, notwithstanding the fact that defendant continued to
  work  at a pace equal to or exceeding his efforts at the time of the final
  hearing, his net income had  decreased as compared to and anticipated by
  the court's 1991 order.  Second, plaintiff had failed  to make a good-faith
  effort to complete her education and obtain gainful employment.  Third, 
  plaintiff's financial circumstances had improved because of Mark Stickney's
  financial assistance.  Based on these and other findings, the court reduced
  plaintiff's permanent maintenance award to  $0.  The court did, however,
  require that defendant continue to pay off the $54,000 in  maintenance
  arrears he still owed plaintiff at a rate of $400 per week.  Plaintiff
  appeals.
	
       We note at the outset that when reviewing the factual findings of a
  trial court, we view them in  the light most favorable to the prevailing
  party below, disregarding the effect of any modifying  evidence, and we
  will not set aside the findings unless they are clearly erroneous.  See
  Brown v.  Whitcomb, 150 Vt. 106, 109, 550 A.2d 1, 3 (1988); V.R.C.P.
  52(a)(2).  The findings will stand  if there is any reasonable and credible
  evidence to support them.  See Harlow v. Miller, 147 Vt.  480, 481-82, 520 A.2d 995, 997 (1986).  Review of conclusions of law, however, is 
  nondeferential and plenary.  See State v. Pollander, 167 Vt. 301, 304, 706 A.2d 1359, 1360  (1997) (questions of law reviewed de novo).
	
       Under 15 V.S.A. § 752(a), a court is authorized to award 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." 
  Orders of support are not  final, and may be modified from time to time as
  circumstances require.  See vanLoon v.  vanLoon, 132 Vt. 236, 242, 315 A.2d 866, 870 (1974).  Section 758 authorizes a modification  of a maintenance
  award "upon a showing of a real, substantial, and unanticipated change of 
  circumstances."  15 V.S.A. § 758.
	
       In this instance, there was evidence to support the court's finding
  that a real and substantial  change of defendant's financial circumstances
  had taken place since 1991 such that, pursuant to  15 V.S.A. § 758,
  modification of plaintiff's maintenance award was appropriate.  In its 1991 
  order, the court estimated that defendant's income would rise at a rate of
  six percent per year.   At that time defendant was making approximately
  $28,000 per month.  However, between  August 1997 and February 1998,
  defendant's income varied between $23,615 and $26,225 per  month.  This is
  significantly less than the $37,900 he should have been making according to
  the  trial court's projection.
	
       In addition, plaintiff has continued to receive substantial financial
  assistance from Mark Stickney  that was not anticipated in the 1991 order. 
  However, while the court could find that plaintiff had  not made a
  good-faith effort to obtain gainful employment as anticipated, this cannot
  serve as a  basis for modification as the original maintenance award was
  not contingent 

 

  on plaintiff's finding employment.  Discounting the court's reliance on
  plaintiff's failure to seek  employment, the record still supports the
  court's finding of a "real, substantial, and unanticipated  change of
  circumstances" to justify a change in maintenance.

       A court has broad discretion in determining the amount and duration of
  a maintenance award,  and we will set it aside only when there is no
  reasonable basis to support it.  See Chaker v.  Chaker, 155 Vt. 20, 25, 581 A.2d 737, 740 (1990).  However, this discretion is not unlimited.   See
  Klein v. Klein, 150 Vt. 466, 473, 555 A.2d 382, 386 (1988).  Here, we
  cannot conclude  that the reduction of maintenance from $1,800 a week to $0
  fell within the court's discretion.
	
       Maintenance awards serve two general purposes.  First, they are
  intended to both correct the vast  inequity of income resulting from
  divorce, see Russell v. Russell, 157 Vt. 295, 299, 597 A.2d 798, 800
  (1991), and equalize the standard of living of the parties for an
  appropriate period of  time, see Downs v. Downs, 159 Vt. 467, 469, 621 A.2d 229, 230 (1993).  Second, in a long-term marriage, maintenance awards
  serve to compensate the homemaker for contributions to  family well-being
  not otherwise recognized in the property distribution.  See Klein, 150 Vt.
  at  474, 555 A.2d  at 387.
	
       This compensatory aspect of maintenance reflects the reality that when
  one spouse stays home  and raises the children, not only does that spouse
  lose future earning capacity by not being  employed or by being
  underemployed subject to the needs of the family, but also that he or she 
  increases the future earning capacity of the working spouse, who, while
  enjoying family life, is  free to devote productive time to career
  enhancement.  See Delozier v. Delozier, 161 Vt. 377,  382, 640 A.2d 55,
  57-58 (1994), citing J. Krauslopf, Rehabilitative Alimony: Uses and Abuses 
  of Limited Duration Alimony, 21 Family L.Q. 573, 586 (1988).

       The original award of maintenance was clearly intended to compensate
  plaintiff for her  contributions to the family.  The change in defendant's
  finances does not erase plaintiff's  entitlement to such compensatory
  maintenance.  Plaintiff and defendant were married for twenty-five years. 
  While defendant was in medical school, plaintiff provided most of the
  financial  support for the parties.  In addition, after the birth of their
  children, plaintiff gave up working  outside the home and was their primary
  caregiver for many years, allowing defendant an  opportunity to devote long
  hours to building a successful medical practice.  Plaintiff's original 
  maintenance award was reflective of her efforts and took into account the
  length of the marriage.  The court, in modifying the maintenance award from
  $1,800 to $0 per week, ignored these  factors and, in so doing, abused its
  discretion.

 


       Reversed and remanded for proceedings consistent with this decision.



	                               BY THE COURT:



	                             _______________________________________
	                             John A. Dooley, Associate Justice

	                             _______________________________________
	                             James L. Morse, Associate Justice

	                             _______________________________________
	                             Denise R. Johnson, Associate Justice

	                             _______________________________________
	                             Marilyn S. Skoglund, Associate Justice
	
	                             _______________________________________
	                             Ernest W. Gibson, Associate Justice (Ret.)
	                             Specially Assigned