Adamson v. Dodge

Annotate this Case
Adamson v. Dodge (2001-494); 174 Vt. 311; 816 A.2d 455

[Filed 01-Nov-2002]

       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. 2001-494


  Dawn (Dodge) Adamson	                         Supreme Court

                                                 On Appeal from
       v.	                                 Chittenden Family Court


  Jeffrey Dodge	                                 September Term, 2002


  Linda Levitt, J.

  Cynthia L. Broadfoot of Cynthia Broadfoot, P.C., Burlington, for
    Plaintiff-Appellee.

  Beth Robinson of Langrock Sperry & Wool, LLP, Middlebury, for
    Defendant-Appellant.


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

        
       JOHNSON, J.  Father Jeffrey Dodge appeals from an order of the
  Chittenden Family Court granting mother Dawn (Dodge) Adamson's motion to
  enforce the terms of the parties' divorce order, denying father's motion
  pursuant to V.R.C.P. 60(b) to set aside the divorce order, and granting
  father's motion to modify present and future support obligations.  He
  alleges that the trial court erred: (1) in modifying child support
  obligations without considering Vermont's Child Support Guidelines and
  without justifying deviations from the guidelines; (2) in setting child
  support obligations at a level that exceeded father's ability to pay
  according to the trial court's own findings; (3) in reallocating dependency
  exemptions from father to mother and thus further reducing the amount of
  money father has available for child support; (4) in setting the date of
  retroactivity for modification of father's child support obligation without
  making findings to support the chosen date and assessing father's
  pre-modification support obligation incorrectly; (5) in violating federal

 

  bankruptcy law by imposing upon father a debt discharged in bankruptcy; (6)
  in awarding attorney's fees to mother; and (7) in failing to set aside an
  order that was impossible from the outset.  We affirm the trial court in
  refusing to set aside the final divorce order, but we reverse the trial
  court's reallocation of the dependency exemptions, imposition upon father
  of the debt discharged in bankruptcy, and award of attorney's fees, and
  remand for recalculation of the amount of father's child support obligation
  and for reconsideration of the other issues raised in this appeal
  consistent with this opinion. 

       The trial court found the following facts.  The parties met in
  college, where they both received degrees in engineering.  They married in
  1987, and had four children over the course of their eleven year marriage. 
  In 1992, father enrolled in medical school.  Mother stayed at home and
  cared for their children.  For support, the family borrowed money and
  received government assistance.  The family moved frequently throughout the
  midwest so that father could obtain medical training, finally moving to
  Vermont where father completed his residency requirements. 
   
       In 1998, father disclosed to mother that he was gay, and the couple
  separated later that year.  The couple went to a mediator to settle the
  terms of the divorce in August of 1998.  In June of 1999, mother and father
  signed a stipulation settling the terms of the divorce. Mother was
  represented by counsel, but father did not want representation.  The
  following provisions of the stipulation are relevant to this appeal: (1)
  Father assumed all student loans and credit card debt.  (2) Mother retained
  sole parental rights, but father would have contact with his children for
  two weekends a month, some vacations, and some holidays.  (3) During
  father's residency, child support of $1,040 per month, established in
  accordance with the Vermont Child Support Guidelines, would be paid by
  father to mother, along with a $500 per month maintenance supplement.  At
  the end of father's residency, father's payments to mother of child support
  and maintenance supplement were to increase to one-half of his pre-tax
  income, or $90,000 a year, whichever was greater.  This child support floor
  was 

 

  based on the parties' assumptions about average salaries for gynecologists
  in the midwest.  (4) Father assumed the entire cost of the children's
  college educations.  (5) Father could claim all four children each year as
  dependents for income tax purposes.  (6) Father's child support obligations
  continued until the youngest child turned eighteen or terminated his
  secondary education.  At that time, the obligations became spousal support
  obligations. (7) Any modification of child support obligations due to a
  significant change of income was to be calculated based on the Child
  Support Guidelines.  (8) In the stipulation, the parties failed to
  recognize that father's available income for child support was
  significantly less than his gross salary due to taxes, student loan
  payments, and credit card debt obligations.  Father had assumed that he
  would be splitting his after tax income, although the stipulation referred
  to pretax income.  The terms of the stipulation were incorporated into a
  final divorce order issued on January 21, 2000. 

       Father accepted a position in Wisconsin at a private medical office to
  begin on July 31, 2000.  He hoped that mother would move to Wisconsin so
  that he could continue regular visits with the children.  Father paid the
  requisite child support through the date that he finished working as a
  resident, June 22, 2000.  Between June 22 and July 31, father was
  unemployed and did not make any child support payments to mother. 
  According to father, during this time he prepared and sat for his board
  certification exams. 
   
       On July 19, 2000, mother filed a motion to enforce child support
  obligations.  In her motion, she demanded salary withholding from father at
  the $1,540 per month rate that father was obligated to pay during his
  residency.  On the same day, she filed a petition to modify child support,
  demanding that father's payments be increased to $7500 per month in
  accordance with the provision of the divorce stipulation that payments were
  to increase to this level when father finished his residency.  On August 7,
  2000, father filed both a motion for relief from judgment and a motion to

 

  modify the child support obligations contained in the divorce stipulation. 
  During the following year,  father made payments to mother of between
  $3,500 and $4000 a month. 

       While employed by Aurora Medical Group in Wisconsin, father's salary
  was $195,000.  His gross monthly pay was $16,000. After taxes, father took
  home $9,500.  The trial court found that each month father made $2,300 in
  student loan payments, payments to mother averaging $3,500 monthly, $1,400
  in minimum credit card payments, $675 in rent payment, and payments of
  approximately $800 for travel expenses to visit his children in Vermont. 
  The trial court found that father had $400 to $500 available for utilities,
  food, and telephone bills.

       Within two weeks after he began his Wisconsin job, father gave his
  six-month notice of his resignation.  Mother had decided not to relocate. 
  He wanted to return to the Vermont area to be closer to his children.  The
  trial court found that under the circumstances father's decision to make
  this move was not unreasonable despite the resulting decrease in his
  salary.  In January 2001, father moved to Plattsburgh, New York to take a
  position as a gynecologist. (FN1)  Father's salary initially decreased to
  $135,000, although it was expected to increase to $150,000 after the first
  year, then to decrease as he bought into the practice, and eventually to
  level out at approximately $200,000 per year.  For the initial year in
  Plattsburgh, father's gross monthly pay was $11,250, and the trial court
  concluded father's reasonable monthly expenses, excluding child support,
  were $7,520.  The trial court does not provide any rationale for this
  estimate of father's expenses, but they are the same numbers that appear in
  father's affidavit of his expenses in Plattsburgh, which included taxes of
  $4,172 per month.  This leaves father with $3,730 available monthly for
  child support.
   
       Two additional events have altered the financial position of the
  parties in this dispute.  First, in March of 2001, mother secured
  employment as an engineer paying $60,000 per year.  Second, in 

 

  June 2001, father filed for Chapter 7 bankruptcy.  The final divorce order
  required father to assume all credit card debt incurred during their
  marriage.  When father filed for bankruptcy, his credit card obligations
  were discharged.  Because mother's name remained on the account, the Fleet
  credit card company sought repayment from mother. 
   
       The trial court declined to set aside the final divorce stipulation,
  but agreed with father that his financial circumstances did not allow him
  to pay mother the $7500 minimum monthly support as the parties anticipated. 
  The court thus granted mother's motion to enforce the divorce order as well
  as father's motion to modify child support obligations.  Section 660 of
  Title 15 allows a court to modify child support obligations upon a finding
  of "a real, substantial and unanticipated change of circumstances."  15
  V.S.A. § 660.  The trial court found that father had "maintained a modest
  lifestyle" while living in Wisconsin and Plattsburgh, that his loan
  payments are higher and his salary lower than the parties expected when
  they entered into the stipulation, and that his move to Plattsburgh was
  reasonable under the circumstances.  The court also observed that mother is
  now earning more than the parties may have anticipated when they signed the
  stipulation.  On the basis of a finding of a change of circumstances, the
  court reduced the amount of child support that father was to pay monthly
  from the $7,500 per month specified in the divorce stipulation to $4,500 a
  month.  This reduction in father's support obligation was made retroactive
  to September 1, 2000, approximately one month after father filed his motion
  for modification.  The court awarded mother $25,000 in past due child
  support, without explaining how it calculated the arrears.  The court
  determined father should pay that balance to mother at $500 a month until
  the balance was cleared.  The court also held father responsible for the
  credit card debt transferred to mother following father's bankruptcy.  The
  court ordered father to pay $500 monthly to mother until the remaining
  balance ($13,000 plus interest and penalties) was cleared.  The court
  ordered father to pay $15,000 of the attorney's fees mother incurred to
  enforce the divorce stipulation.  Finally, the court determined that 

 

  mother would receive the tax deductions for the two oldest children
  effective beginning in the 2001 tax year.

                                      A

       Father first argues that the trial court erred in modifying child
  support obligations without addressing the Child Support Guidelines as
  required by 15 V.S.A. §§ 654-663.  He claims that the court may award
  support that is not based on the support guidelines only after
  consideration of the factors established in 15 V.S.A. § 659(a) and must
  give an explanation of why these factors justify the deviation from the
  guidelines.  In this case, the trial court made no findings based
  explicitly on these factors.  There was no reference to the Child Support
  Guidelines in its decision.  Although we note that father's income may have
  exceeded the levels of the support guideline adopted by the Agency of Human
  Services, and that § 656(d) states that the "court may use its discretion
  in determining child support" when incomes exceed the level covered by the
  guideline, we have held previously that the factors listed in § 659(a) must
  still be considered in cases where a noncustodial parent's income exceeds
  the guideline tables.  Smith v. Stewart, 165 Vt. 364, 372, 684 A.2d 265,
  270  (1996).  Based on the statute and the policies underlying Vermont's
  child support system, we agree with father that the trial court failed to
  justify its decision to deviate from the Child Support Guidelines based on
  the statutory factors. 
   
       Child support obligations are always subject to review and
  modification, and the trial court properly granted father's motion to
  modify child support obligations.  When there is a "real, substantial, and
  unanticipated change of circumstances," a court may review a child support
  obligation and modify the amount of required payments.  15 V.S.A. § 660(a). 
  The fact that the original child support obligation is set by a stipulation
  does not affect the court's prerogative to modify the child support order: 
  "A court may modify child support whether it is based on a stipulation or
  agreement."  Rogers v. Wells, 13 Vt. L.W. 227, 228 (2002); 15 V.S.A. §
  660(a).  	

 

       Child Support Guidelines are the appropriate tools for calculating
  child support obligations when modifying a divorce stipulation or final
  order.  See 15 V.S.A. §§ 654-656.  In this case, turning to the guidelines
  is appropriate not only in order to comply with Vermont's statutes, but to
  uphold the intention of the parties: the parties' divorce stipulation
  itself included a provision that any modification of child support
  obligations must be calculated using the established Child Support
  Guidelines.  In situations where a noncustodial parent's income exceeds the
  guidelines, we have held that the court's "decision must reflect the
  principles behind the guidelines."  Smith, 165 Vt. at 372, 684 A.2d  at 270. 
  The Guidelines were designed to ensure  that children receive the same
  proportion of parental income after separation/divorce as they would have
  received if parents had remained together, to eliminate discrepancies in
  awards between children in similar circumstances, and to improve efficiency
  of child support adjudication.  Grimes v. Grimes, 159 Vt. 399, 403-04, 621 A.2d 211, 213 (1992); 15 V.S.A. § 654.  
   
       Determining child support obligations based on the guidelines is a two
  step process.  First, both parents' monthly gross income must be converted
  to available income.  Available income is defined in 15 V.S.A. § 653(1) as
  gross income less taxes owed and certain other enumerated deductions. (FN2)   
  Then, using the tables provided for by the secretary of human services,
  child support 

 

  obligations are determined based on the parents' combined available income. 
  15 V.S.A § 654.  If the available income of custodial and noncustodial
  parents "exceeds the uppermost levels of the support guideline," the
  statute gives the trial courts discretion to establish child support
  obligations.  15 V.S.A. § 656(d).  This discretion is not boundless,
  however.  Courts are required to justify and explain their child support
  orders according to factors laid out in the statute.  C.D. v. N.M., 160 Vt.
  495, 500, 631 A.2d 848, 851.  When a court decides to deviate from the
  guidelines, "the trial court's findings and conclusions must show it
  considered the factors specified in § 659(a) as well as other relevant
  factors."  Ainsworth v. Ainsworth, 154 Vt. 103, 114, 574 A.2d 772, 779
  (1990).  Section § 659(a) of Title 15 establishes that when deviating from
  the guidelines, courts must consider all relevant factors, including:

    (1) The financial resources of the child.
    (2) The financial resources of the custodial parent.
    (3) The standard of living the child would have enjoyed had the
    marital relationship not been discontinued.
    (4) The physical and emotional condition of the child.
    (5) The educational needs of the child.
    (6) The financial resources and needs of the noncustodial parent.
    (7) Inflation.
    (8) The costs of meeting the educational needs of either parent,
    if the costs are incurred for the purpose of increasing the
    earning capacity of the parent.
    (9)  Extraordinary travel and other travel-related expenses
    incurred in exercising the right to parent-child contact.
    (10) Any other factors the court finds relevant.
  
  15 V.S.A. §659(a). 

 
          
       In the instant case, in establishing father's child support obligation
  the trial court looked solely at mother and father's individual income and
  expenses.  The court did not base its order on the Child Support Guidelines
  or an evaluation of each of the § 659(a) factors, or make findings of fact
  ascertaining whether or not father and mother's combined income was within
  the child support guideline parameters.  The trial court found father's
  monthly gross income during his first year in Plattsburgh to be $11,250,
  and mother's gross monthly income to be $5000.  Thus, their combined
  monthly gross income comes to $16,250.  As of 2000, the Vermont Table of
  Intact Family Expenditures on Children covered families with monthly
  combined available incomes up to $12,524.99, 4A Code of Vt. Rules § 13 161
  001-9 (2000), so depending on the way that § 653(1) is applied to determine
  parents' available incomes, see supra footnote 2, parties in this case may
  fall within the bounds of the guidelines, or else so close to the edges
  that extrapolation is a viable method to determine child support. We have
  recognized that extrapolation from the guideline tables, while not
  required, satisfies the statutory requirements for setting support amounts
  for incomes exceeding the maximum provided for in the guideline tables. 
  Smith v. Stewart, 165 Vt. 364, 371, 684 A.2d 265, 270 (1996).
   
       We remand this issue to the trial court to determine mother and
  father's available income using 15 V.S.A. § 653, and to make a finding on
  whether their combined available income falls within the Child Support
  Guidelines.  If their combined income is within the Child Support
  Guidelines, the trial court must determine child support consistent with
  the guidelines.  If their combined income exceeds the levels covered by the
  guidelines, the trial court must explain how it considered the factors
  specified in § 659(a) and the principles behind the guidelines in making
  its 

 

  award.  We therefore reverse the child support calculations and remand for
  further proceedings consistent with this opinion. (FN3)   

                                      B
   
       Father next argues that the trial court's reallocation of dependency
  exemptions was unsupported by the evidence and exacerbates the
  impossibility of father complying with the court's child support order. 
  The 1999 stipulation of the parties assigned all four tax exemptions to
  father.  The underlying findings of father's income in this case were
  supported by testimony and affidavits father made assuming that he could
  continue to claim all four tax exemptions.  The trial court offered no
  explanation or justification for its reallocation of two of the tax
  exemptions to mother.  As discussed supra in footnote 2, Vermont's Child
  Support Guidelines explicitly acknowledge the effect that dependency
  exemptions have upon available income of parties in a divorce. Section §
  661 of Title 15 requires the court to consider the parties' respective tax
  liabilities in calculating a maintenance supplement obligation.  15 V.S.A.
  § 661(a).  It appears that the court's decision to reallocate the
  dependency exemptions was based on mother's unexpected return to the
  workplace.  The decision to reallocate the dependency exemptions, however,
  contradicts the court's refusal to 

 

  set aside the final divorce order, under which father receives all four
  dependency exemptions.  We therefore reverse the trial court.  Under the
  terms of the final divorce order, which we uphold, infra Part F, father is
  entitled to claim all four dependency exemptions.  

                                      C

       Father further contends that even accepting the monthly support figure
  arrived at by the trial court, the trial court miscalculated his support
  arrearage.  He bases his argument on two grounds.  First, he claims that
  the date of retroactive adjustment in child support was inappropriate given
  his financial situation and not based on adequate findings of fact.  Father
  argues that the trial court lacked evidentiary support for its decision to
  set September 1, 2000 as the starting date for his modified child support
  obligations.  Second, he claims the court erred in assessing his
  pre-modification support obligation. He argues that the applicable child
  support owed to mother during July and August of 2000 was not $7,500, as he
  believes the trial court ordered him to pay, but $1,540.  Although the
  trial court fails to provide a breakdown for how it determined its past due
  child support calculation, we accept for purposes of this argument that
  father was ordered to pay $7,500 for the two months in question. 
   
       First we address father's claim that September 1, 2000 was not based
  upon adequate findings.  Child support obligations may be modified as of
  "any reasonable date on or after the date of filing of the motion to amend
  the support order, within the sound discretion of the trial court."  Towne
  v. Towne, 150 Vt. 286, 288, 552 A.2d 404, 405 (1988).  Public policy
  supports setting the earliest date for the retroactive modification of
  child support at the date of filing a motion to modify because "[i]t is a
  readily discernible date which will place the other party on notice that a
  change in support may be forthcoming, and it eliminates any incentive to
  delay a resolution of the dispute for modification of support payments." 
  Id., 552 A.2d  at 406.  Various factors influencing the circumstances of the
  parties subject to the order, however, could justify the use of a later
  date.  Chaker v. Chaker, 155 Vt. 

 

  20, 30, 581 A.2d 737, 742 (1990).  "The effective date for any modification
  in support [on or after the date of filing of a motion to modify] should be
  left to the sound discretion of the trial court, because it is most
  familiar with the often complicated history of the case and, thus, better
  able to make such a determination."  Towne, 150 Vt. at 288, 552 A.2d  at
  406.   

       In Towne, the trial court found the applicable change in circumstances
  occurred on August 28, 1987, and defendant filed his motion to modify on
  September 8, 1987.  However, the trial court set October 30, 1987 as the
  date for which retroactive modification of child support would commence. 
  On review, this Court found: "The trial court stated no rationale and made
  no findings as to why it chose the October 30 date.  While choosing such a
  date would be within the trial court's discretion, without any stated
  rationale or findings of fact on this  issue, [w]e are left to speculate as
  to the basis upon which the trial court . . . reached its decision.  This
  we will not do."  Id. at 289, 552 A.2d  at 406 (internal citations and
  quotations omitted).

       As in Towne, the trial court in the case at bar does not offer any
  explanation for its choice of the date to which its child support order was
  made retroactive.  Father started work on July 31, 2000, and he filed his
  petition to modify about a week later, on August 7, 2000.  The trial court
  does not provide any rationale for why circumstances in August did not
  justify modification, while those in September did.  We therefore remand
  for further findings of fact and reconsideration of the date upon which
  child support will be retroactively modified. 
   
       On the second objection that father raises, that the trial court
  incorrectly assessed his pre-modification support at a rate of $7,500 per
  month rather than $1,540 per month, the trial court opinion again lacks
  adequate findings to support its order.  Determining which rate applied
  during the period in dispute requires an analysis of the legal effect of
  the stipulation between mother and father.  The stipulation establishes
  that father's child support obligation and maintenance supplement during
  residency would be $1,540 per month, but that "[a]t the end of the chief
  residency year, when 

 

  [father's] income as a physician is known, he shall pay one-half of his
  pre-tax income or $90,000 per year, whichever is greater as child support
  and maintenance supplement."  The question is therefore how to apply this
  agreement to the months in dispute.  According to father, between June 22
  and July 31, father was unemployed and did not make any child support
  payments to mother.  Father stated at trial that during this time he
  prepared and sat for his board certification exams.  There are no findings
  of fact from the trial court on whether this is actually what father did,
  whether it would have been possible for father to work while preparing for
  the exam, and whether this one month period should be considered part of
  father's residency under the terms of the divorce stipulation or to have
  occurred after the residency and therefore be subject to a new assessment.

       Mother's motions filed during the months of July may provide some
  indication of the parties' understanding of the stipulation.  On July 19,
  2000, mother filed a motion to enforce child support obligations.  In her
  motion, she demanded salary withholding from father at the $1,540 per month
  rate that applied to father during his residency.  On the same day, she
  filed a petition to modify child support, demanding that father's payments
  be increased to $7,500 per month in accordance with the provision of the
  divorce stipulation that payment would increase to this level when father
  finished his residency.

       Without further findings, we cannot determine what the impact of
  mother's petition is on father's pre-modification support obligation, or
  how the stipulation should be interpreted with respect to July, when father
  received no salary. We remand for further findings and clarification of the
  court's decision on this issue. 

                                      D
   
       Father further argues that the trial court violated federal law by
  ordering him to pay the Fleet credit card debt, a debt which father
  discharged in bankruptcy.  At the time of the divorce, the card had a
  balance of $13,561, of which father paid $500 before filing for bankruptcy. 
  Because mother 

 

  was named as a joint creditor on the account, Fleet turned to mother for
  repayment. The trial court found that because of father's failure to pay
  off the Fleet credit card debt, mother's credit rating had suffered and she
  must pay lenders above average interest rates to obtain loans.  According
  to mother's affidavit of income and expenses, she currently pays $262 per
  month on this $16,848 debt.  The trial court ordered father to pay mother
  $13,000 plus interest and penalties that had accrued on the card, at a rate
  of $500 per month, until the debt is paid off. 

       We agree with father that the trial court erred in ordering father to
  pay mother the amount owed on the credit card after that debt had been
  discharged in bankruptcy.  As this Court held in Fitzgerald v. Fitzgerald,
  144 Vt. 549, 481 A.2d 1044 (1984), a case involving a property settlement
  obligation pursuant to a divorce decree that had been included as a debt on
  plaintiff's petition for bankruptcy, "[f]inal orders of a bankruptcy court
  are res judicata as to all matters that were or could have been litigated
  before that court. . . . The proper forum to litigate this issue is the
  bankruptcy court by way of a petition to reopen the debtor's estate, 11
  U.S.C. § 350, or any other procedural method available under the bankruptcy
  code."  144 Vt. at 552, 481 A.2d  at 1046.
   
       The trial court may not reinstate discharged debt by ordering father
  to pay mother the entire amount of debt in an award that is separate from
  its general maintenance and child support order.  On remand, however, the
  trial court is not precluded from taking the fact that mother must now pay
  off the Fleet debt into account in calculating father's modified child
  support and maintenance obligations.   Father's counsel cites two cases
  from the United States Bankruptcy Court of the District of Vermont, In re
  Ladak, 205 B.R. 709 (Bankr. D. Vt. 1997) and In re Pearson, Docket No.
  00-1059 (Bankr. D. Vt. May 9, 2001), available at
  http://www.vtb.uscourts.gov, for the proposition that father's failure to
  pay debts discharged in bankruptcy can not be used as a reason to increase
  his support obligations to mother. While we agree that these cases prohibit
  the reinstatement of debt that has been discharged in bankruptcy, father's
  reading of the cases to preclude consideration of the fact 

 

  that mother must now pay this debt in the determination of father's child
  support obligation is incorrect.  In both cases, the bankruptcy court has
  emphasized that its decisions do not prevent family courts from considering
  changed financial circumstances as a result of a shift in debt load in
  determining new child support obligations.  The court in Ladak found that
  the respondent violated the automatic stay provisions of the Bankruptcy
  Code by seeking a modification of a divorce decree, but concludes the
  opinion: "We caution against reading our holding as a case where the
  discharge of debts in bankruptcy may prohibit a state court from modifying
  a divorce decree concerning spousal maintenance or child support because of
  a material change in circumstances."  205 B.R.  at 712.  In the Ladak case,
  there was no ongoing maintenance or child support obligation from debtor to
  former spouse, unlike the instant case where father's support obligations
  to mother are continuous, and the Ladak court explicitly refrained from
  extending its holding to cases involving ongoing maintenance obligations.  
   
       Pearson is a similarly circumscribed holding. In Pearson, the court
  found as fact that the wife had not been financially harmed by the
  plaintiff-husband's failure to pay the joint credit cards: the wife had not
  been held liable for any of the discharged debt, and that the wife's motion
  for modification of maintenance was not based upon an actual change in
  circumstances.  In the case before us today, the court has found that
  mother suffered financial harm from father's bankruptcy.  The court may
  consider mother's ongoing payments on the Fleet credit card as part of her
  changed financial circumstances and take these payments into account in
  calculating how much child support and maintenance she needs.  This is in
  accordance with decisions in other jurisdictions upholding state court
  decisions to modify child support or maintenance obligations in response to
  the changed circumstances or needs of the parties.  Simpkins v. Simpkins,
  435 So. 2d 753, 754 (Ala. Civ. App. 1983) (holding that state court could
  order husband to pay temporarily an increased amount of child support
  because of wife's depressed financial condition as a result of having to
  pay loans that 

 

  husband had discharged in bankruptcy; such order did not require husband to
  pay discharged debt); Kruse v. Kruse, 464 N.E.2d 934, 938 (Ind. Ct. App.
  1984) (holding that state court did not infringe upon jurisdiction of
  bankruptcy court or order debtor-husband to pay any pre-bankruptcy petition
  debts when it decided to modify child support due to substantial and
  continuing change of circumstances); In re Marriage of Trickey, 589 N.W.2d 753, 757 (Iowa Ct. App. 1998) (if post-bankruptcy alimony modification
  "merely takes into account the fact that . . . the discharge results in
  changed financial circumstances, then modification will not violate federal
  bankruptcy law"). We reverse the trial court's order that father pay mother
  the entire amount owed on the Fleet credit card.  On remand for
  recalculation of father's child support obligation, the trial court may
  consider the debt that mother has been forced to assume as part of her
  overall financial circumstances.    

                                      E

       Father next asserts that the trial court abused its discretion by
  awarding attorney's fees to mother.  The trial court ordered father to pay
  $15,000 of the more than $30,000 in attorney's fees mother incurred to
  bring this action.  Father argues that the trial court predicated its award
  of attorney's fees to mother on the conclusion that she had substantially
  prevailed in the case, and that if the Court reverses the lower court's
  child support award, it should also reverse the lower court's award of
  attorney's fees. 
   
       We will reverse the award of attorney's fees, but not on the grounds
  suggested by father. In a case concerning child support, the question of
  which parent substantially prevails does not determine which parent pays. 
  "The primary consideration in awarding attorney's fees is the ability of
  the supporting party to pay and the financial needs of the party receiving
  the award." Nevitt v. Nevitt, 155 Vt. 391, 399, 584 A.2d 1134, 1139 (1990);
  see also Dunning v. Meaney, 161 Vt. 287, 291, 640 A.2d 3, 6 (1993).  The
  trial court and father rely on language from the stipulation requiring

 

  that, if a court determines that one party has breached the stipulation,
  the breaching party pay the non-breaching party "attorney's fees, costs,
  and expenses incurred in attempting to enforce the provisions of the within
  Stipulation."  The trial court opinion states that "[t]his complicated
  litigation would have been unnecessary if [father] had carefully considered
  his financial situation and financial needs prior to signing the
  stipulation, if he had assumed the credit card debt he had agreed to
  assume, and if he had paid [mother] the support . . . due her."  While the
  trial court clearly considered father responsible for the need to bring
  this litigation, it did not find that father had breached the stipulation. 
  The court did grant father's motion to modify child support, ratifying
  father's claim that a departure from the terms of the stipulation was
  necessary under the circumstances.  We reversed the trial court's award to
  mother of payment for father's credit card debt.  The trial court found
  that father was living a "modest lifestyle."  Father's position in this
  case is not that he does not want to comply with the stipulation that he
  signed, but that he is unable to do so because of circumstances not
  contemplated by the parties.  We find that the record evidence does not
  support a finding of breach.  Therefore we reverse and remand the issue of
  attorney's fees to the trial court to allocate attorney's fees on the basis
  of the relative capacities and needs of the parties, taking into account
  both father and mother's ability to pay. 

                                      F

       Finally, father contends that the trial court erred in declining to
  grant his motion under V.R.C.P. 60(b)(6) to set aside the divorce order on
  the grounds that the order was impossible from the outset.  He alleges that
  there is no way that he can comply with the terms of this order and keep up
  with his obligations to make student loan repayments, and that various
  other requirements established by the stipulation, such as paying for
  college for all four children, will be impossible for him given his current
  and foreseeable insolvency under the terms of the stipulation.  We affirm
  the trial court's denial of the motion.  

 
   
       A motion under V.R.C.P 60(b)(6) for relief from judgment to prevent
  hardship "is not subject to appellate review unless it clearly and
  affirmatively appears on the record that such discretion was withheld or
  abused."  Cliche v. Cliche, 143 Vt. 301, 307, 466 A.2d 314, 316-17 (1983). 
  We must accept the trial court's findings unless they are clearly
  erroneous.  Slansky v. Slansky, 150 Vt. 627, 629, 556 A.2d 94, 95 (1988). 
  The trial court's decision to deny father's 60(b)(6) motion was entirely
  within its discretion.  The trial court found that the stipulation was
  "negotiated over many months with the input of a mediator."  The final form
  of the stipulation included terms more favorable to father than those found
  in earlier drafts.  The court found father to be a highly intelligent,
  educated man, who was not subjected to any pressure or threats and had
  "every opportunity to read over the stipulation, ask questions, and obtain
  legal representation."  He voluntarily signed the stipulation agreeing to a
  generous financial package for the benefit of his former wife and four
  children. 
   
       Interests of finality require that relief from a previous judgment
  should be granted only in extraordinary circumstances.  Riehle v. Tudhope,
  171 Vt. 626, 627, 765 A.2d 885, 887 (2000) (mem.).  Moreover, in domestic
  relations matters, we assume that any agreement reached voluntarily by the
  parties is preferable to a court-imposed order.  Therefore, although we
  recognize that Rule 60(b)(6) may be used, in some circumstances, to reopen
  a final judgment that incorporates an agreement, our standard is strict. 
  Id.  We agree with the trial court that father failed to demonstrate
  extraordinary circumstances warranting relief in this case.  The record
  evidence does not support father's claim that the stipulation was
  impossible to fulfill from the outset.  Father's income is currently much
  lower than the $200,000 per year that it is expected to reach.  Aspects of
  this agreement that are difficult to carry out now may appear in a
  different light at a later time.  While child support is always subject to
  modification, the stipulation is a comprehensive agreement between the
  parties covering many issues above and beyond child support.  We find that
  the trial court neither abused nor withheld its discretion in declining to
  dispense with the entire stipulation 

 

  on the basis of circumstances existing during a period of time early in
  father's career when the terms of the stipulation proved onerous. 

       The Chittenden Family Court's order denying father's motion under
  V.R.C.P. 60(b) to set aside the divorce order is affirmed.  The orders
  granting father's motion to modify present and future support obligations,
  ordering father to pay child support arrearage, reallocating dependency
  exemptions from father to mother, ordering father to pay mother a debt
  discharged in bankruptcy, and awarding attorney's fees to mother are
  reversed and remanded for proceedings consistent with this opinion. 



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice



------------------------------------------------------------------------------
                                  Footnotes


FN1.  The Trial Court found this date to be June 2001 as opposed to January
  2001, but both the appellant and the appellee stipulate that the correct
  date is January 2001.

FN2.  We note that under § 653, the amount of state and federal taxes to be
  subtracted from gross income in order to determine a parent's available
  income must be calculated based on certain assumptions rather than on
  actual taxes paid.  For purposes of determining available income under §
  653, a noncustodial parent such as father in this case is supposed to
  calculate state and federal income taxes using the standard deduction,
  single filing status, and one exemption.  15 V.S.A. § 653(1)(D)(ii).  No
  provision is made for a situation where, as here, the parties have agreed
  by stipulation to allocate the tax exemptions for dependents to the
  noncustodial parent.  The Agency of Human Services has promulgated tables
  converting gross income to available income, 4A Code of Vt. Rules §§ 13 161
  001-10 through 16 (2000), and father's income in this case exceeds the
  maximum amount on the conversion table by $1,225 per month.  However, the
  table that the Agency of Human Services is required to promulgate, the
  Table of Intact Family Expenditures on Children, covers families with
  combined available incomes of up to $12,524.99 per month.  4A Code of Vt.
  Rules §§ 13 161 001-4 through 9 (2000). With father's gross income less
  taxes of $7,078 per month, and mother's gross income of $5000, they would
  fall in at the uppermost spectrum of the table, but within the table's
  boundaries, no matter how much mother pays in taxes.  On remand, father is
  free to argue that a guidelines calculation should be made based on the
  money he actually pays in taxes under the allocation of tax exemptions that
  has been agreed upon in this case.  We note, however, that if his income
  increases as projected, soon the parties' combined incomes will exceed the
  guidelines.

FN3.  Father further asserts that the trial court abused its discretion in
  assigning child support and maintenance supplement obligations exceeding
  his ability to pay, in violation of 15 V.S.A. §§ 659(a)(6), 656(c), and
  661(a).  Because we reverse the trial court's calculation of child support
  and maintenance supplement, it will be necessary for the trial court to
  recalculate child support and maintenance, and therefore we do not reach
  this issue.  We note, however, that father's salary is expected to increase
  eventually from its current level of $135,000.  On remand, the court may
  establish a mechanism for increasing father's support obligation over time. 
  The trial court found that father's income would rise to $150,000 in his
  second year of employment.  The trial court may, in its order, calculate
  father's child support obligations once his income reaches $150,000 to be
  effective at that time.  Another option is to require the parties to
  recalculate child support yearly, or every two years, based on the Child
  Support Guidelines and updated income information.  See Harris v. Harris,
  168 Vt. 13, 15, 714 A.2d 626, 628 (1998) (affirming final divorce order in
  which child support obligation is to be recalculated every two years
  according to a method specified by the order, including a calculation to be
  applied when the parties' combined monthly gross income exceeds the incomes
  in the Child Support Guidelines).