Wednesday, October 27, 2010

Husband Fails to Convince Court to Terminate Spousal Support to Permanently Disabled Ex-Wife

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.”


  1. Here is a clear case of the non-contributing spouse not only being a burden during the marriage, but also expecting continual support. The pension was split as part of the property settlement and each spouse could receive benefits from their share of the pension. Many states are recognizing the fairness of limiting the spousal support period and disallowing double dip into the pension income. When the marriage is terminated, each spouse needs to become self-supporting and live within those means.
    Further, the courts are nor recognizing the reality that higher paid workers in their fifties find it extremely difficult to find employment at the same level in industry. In the case of this IBM employee, there was likely no similar job in Vermont and to expect this person to compete in the national market is unrealistic.

  2. The court split the marital property at the divorce and assuming the split was equitable, each spouse would have assets that are imputable to income. If the husband chose to exorcize his freedom to retire after a long career, then he is entitled to the income from the already split assets, namely the pension. The ex-wife also has the option to tap the capital for income. She should not expect the husband to provide additional support and use his portion of the marital property.

    1. Its crazy how courts/judges differ. Sick people lose. No VOICE NO CHANCE for a FAIR JUDGEMENT. I witnessed lawyers and a judge take everything from a wife of a man who had Alzheimer's Disease. They allowed him to walk away from her with MILLIONS of DOLLARS CASH and then make Medicaid ( YOU & I ) pay all but a quarter of her care cost. The MILLIONS came from investments made using a line of credit on his wife's HOME from her Husband of past, the money really was hers as he couldn't have gambled in investments and obtained it without her assets.There is NO JUSTICE and we have NO LIBERTY in America any longer! Man's World Sucks. The Ladies Lawyer was paid by the Husbands Lawyer to play their GAME. He denied evidence of 13 States Allowing POA's to win cases such as this but used one out of State case to ensure the Husband Won his? They together ruined the Future for Disabled Folks in Pennsylvania forever! This case will prevent POA's from helping Disabled People who have been financially abused by spouses forever as in Pa. a POA has NO more power than a Guardian forever on.

  3. In Re Marriage of Gavron, (1988) 203 Cal.App.3d 705, 250 Cal.Rptr. 148. "In essence, as the court argued, an apparent lack of judicial foresight in not focusing her on the expectation to become self-sufficient meant that the court could not cut her support now."

    California courts often issue a warning to the supported spouse FL-180), including the language such as:

    “NOTICE: It is the goal of this state that each party will make reasonable good faith efforts to become self-supporting as provided for in Family Code section 4320. The failure to make reasonable good faith efforts may be one of the factors considered by the court as a basis for modifying or terminating spousal or partner support.”

    Clearly Vermont needs to abandon the unrealistic, unfair and discriminatory expectation that a lazy spouse can continue to sponge off an industrious spouse just because she got away with it for years. If the state expects an unemployed person to keep documentation of job searches, why not make that same expectation for the "stay at home mom" who continues to just "stay" long after she has demonstrated to her teenage children that sitting on the couch eating bonbons is a lucrative career.

    The excuses the wife uses in Gavron (above) were pathetic apparently working as receptionist was "too physically demanding"

    In a recent case, a food worker had an anxiety attack at work after some criticism which was then testified as a heart attack with no doctors notes, no disability determinations, nor medical evidence to prove the extent, if any of medical attention, yet a trial memorandum claimed that this and her substantial age of 49 prevented any effort to train for work to become self-supporting.
    In a state that declares equality is important, indeed legislated, surely each spouse should contribute the same number of years of full effort to maximize their potential

  4. Shouldn't be a surprise. Wife is disabled.