by Elizabeth Catlin
Mayville v. Mayville, 2010 VT 94.
In what is likely a familiar scene in family courts around the country these days, an ex-husband, who was laid off from his job, sought to terminate the spousal maintenance payments he was obligated to make under a court order resolving his divorce. In this case, husband and wife had been married for twenty-seven years before their 2003 divorce. During the entire period of their marriage, wife suffered from a permanent disability that prevented her from working at all, and husband worked for IBM. The 2003 court order resolving the divorce split husband’s pension in half between husband and wife, and obligated husband to pay wife $3,000 per month in spousal maintenance until he turned sixty-five years old. When husband learned that he was losing his IBM job, he moved to terminate his spousal maintenance obligation.
The family court disagreed that husband’s job loss created the statutorily required “real, substantial, and unanticipated change of circumstances” in 2009—the year that he lost his job—because, due to his severance package, husband would actually earn more in 2009 than he had in any previous year. After husband’s unemployment benefits ran out, however, the family court decided that there would be a substantial change in husband’s circumstances justifying a reduction in his spousal maintenance obligation to $1,500 per month until he turned sixty-five years old (at which point, under the 2003 order, his spousal maintenance obligation would end). The family court granted this reduction despite the fact that husband, apparently by his own admission, was not planning to seek new employment and instead to simply retire and live off his pension and his new wife’s salary. This bone was not enough to satisfy husband, though, and so he appealed the order to the Vermont Supreme Court.
The issue that probably justified making this case a full five-justice case instead of a three-justice panel was husband’s claim that the family court improperly “double counted” his pension as both a marital asset in the 2003 order, and a source of income in the modification order. Husband claimed that the pension must be treated as either an asset or an income source, but not both. Further, husband argued that because the pension had already been divided as a marital asset, the family court must treat him as though he had no income available to pay spousal maintenance once his unemployment benefits ran out.
The Supreme Court did not find husband’s argument either attractive or supported by the law. Instead, the Court noted that Vermont’s spousal maintenance statutes allow courts to consider marital assets, not simply income, in determining whether a spouse is able to pay spousal maintenance. Under Vermont law, “the issue is simply whether one party has a need for maintenance and whether the other party has the ability to pay maintenance.” In support of treating husband’s pension as “just another type of income-producing asset,” the Court engaged in the ever-popular fifty-state survey to conclude that the majority rule is to treat pensions as an income source for spousal maintenance purposes. The Court also noted that the family court had properly considered only the half of the pension that still belonged to husband in determining husband’s ability to pay spousal maintenance.
The other claim of error that prompted the Court to take a look at some out-of-state law was that the family court had improperly considered husband’s new wife’s income in determining his ability to make spousal maintenance payments to his ex-wife. Relying on the wisdom of the courts of Colorado, South Dakota, Delaware, North Carolina, and some of its own precedent, the Court made the following distinction (be careful the knife cuts pretty thin here): “a court may not impute the income of the new spouse to the obligor for the purposes of calculating the amount of the obligor’s income that is available to pay maintenance,” but “a trial court may properly consider the earnings of a new spouse to determine ‘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.’” (Quoting 15 V.S.A. § 752(b)(6).) In other words, the trial court cannot make new-wife pay old-wife, but it can make new wife pay husband so husband can take his money or assets to pay old-wife. Based on this rule, the Court held that it was just fine for the family court to have determined the effect of new-wife’s income on husband’s ability to support himself while paying maintenance. This was acceptable because in doing so, the family court properly avoided imputing new-wife’s salary to husband or requiring her to pay husband’s maintenance obligation. That settles it.
The remainder of husband’s claims did not give the Supreme Court much pause. Husband tried to show the Court that the family court had made some basic timing and calculation errors, but the Court could find no abuse of discretion in any of the nit picks that husband tried to raise. The Court rejected husband’s claim that the family court should have considered ex-wife’s newly acquired Social Security income in its modification order because it was plain from the record that this income had been anticipated even at the time the parties were still married. Similarly, the Court was unimpressed with husband’s argument that ex-wife’s age-entitled enrollment in Medicare was an unanticipated change in circumstances.
The Court made its clearest statement that husband was coming across as an unsympathetic figure in a section where the Court rejected husband’s argument that his $90 per month increase in health care costs should have been counted in the modification of his spousal maintenance obligation. In that section of the opinion, the Court noted that husband had requested a complete termination of his maintenance obligation, not an incremental decrease in the amount, so the family court did not abuse its discretion in ignoring this incremental increase in health care costs. In something of a non sequitur, the Court went on to observe here that ex-wife was sitting on $10,000 worth of credit card debt for her own medical bills that were due to her permanent disability (read: “husband, you have come across as a schmuck”). Unsurprisingly, then, the Court was not swayed by husband’s catch-all argument that the modification decision failed a test of “reasonableness, fairness or equity.”