Unanticipatable Consequences

Herring v. Herring, 2011 VT 38

By Zak Griefen

If you commit a heinous crime against your child that (1) leads to your divorce and (2) lands you in jail, can you get out of your spousal maintenance and child support obligations by arguing that your incarceration (and resulting lack of income) is an unanticipated change in circumstances?  Surprisingly, yes you can. 

This despite that divorce, prosecution, and incarceration are all outcomes that one could anticipate resulting from repeated sexual abuse of a minor.      

Mr. Lee Herring sexually abused his daughter for ten years, starting when she was five or six years old.  Lee’s voluntary criminal activity led his wife Kimberly to divorce him in April of 2008 and the State to prosecute him for sexual assault and lewd or lascivious conduct.  The divorce went more smoothly (or at least more quickly) than the criminal case. 

Lee’s first trial ended in a hung jury, which occurred before the divorce was granted.  After the second trial, in June 2009, he was sentenced to serve thirty-five years to life.  Upon conviction, he was immediately incarcerated.  Lee appealed, and the SCOV reversed and remanded for a new trial.  Lee is currently released on conditions of bail pending a retrial. 

When Lee was thrown into jail in 2009, he asked the family court to terminate his $1,000 per month spousal maintenance payments to his ex-wife Kimberly.  He had stopped making payments six months after the divorce, but some of the arrearages were paid for a time out of his share of the sale of the family home.  That money is long gone, and Lee has no assets or income.

Kimberly had moved to enforce spousal maintenance after Lee had been in jail for three months.  Lee responded that the maintenance order should be modified because you can’t hold a job from jail.  The unsympathetic family court denied Lee’s motion and granted Kimberly’s motion to enforce, holding that Lee’s incarceration was not an unanticipated change in circumstances warranting modification of the maintenance award.  Today’s case resolves Lee’s appeal of that decision.

Under 15 V.S.A. § 758, a court may modify a spousal maintenance award only “upon a showing of real, substantial, and unanticipated change of circumstances.”  The threshold determination of changed circumstances is discretionary and depends on the context of the surrounding circumstances; no fixed standards exist for determining what meets the threshold.  The trial court reasoned that Lee’s trip to jail was not unanticipated, because Lee, Kimberly, and the trial court were all well aware of the criminal charges when the divorce decree order was being drafted, though the maintenance order did not plan for Lee’s incarceration.  The trial court further noted that Lee’s sexual abuse of his daughter over a ten-year period was “voluntary, willful, and had a devastating impact on the family.” 

The majority of the SCOV reverses the trial court’s decision, holding that because Lee’s incarceration was not taken into account in deciding the original maintenance order, the incarceration was “unanticipated” for purposes of modifying the support.  Were jail an anticipated change in circumstances, Lee could have relied upon it to avoid the maintenance payment in the original order.  But Lee could not count on going to jail.  No-one, at the time of the divorce decree and maintenance order, could do more than speculate on the outcome of Lee’s second trial criminal trial.  Since speculation as to future earning ability is irrelevant, the trial court made no mention of Lee’s possible incarceration in its original order and presumed that Lee would continue in his then-present economic condition.      

The test that the SCOV applies is whether the incarceration (or another condition causing a reduction in income) was taken into account in establishing the original maintenance order.  If it was, then the incarceration or other condition was anticipated.  If it was not, then the incarceration or other condition was unanticipated.  It may seem at first glance that the majority is providing a roadmap, only requiring that family court decrees explicitly anticipate incarceration in the original orders.  But predicting the result of criminal trials is a tricky business, involving many contingent outcomes.  Lee, for example, is currently walking free and awaiting his third trial, proving the majority’s point about the unanticipatable consequences of criminal acts.  A maintenance order that plans for every contingency would be a long document indeed.   

Chief Justice Reiber disagrees and would have upheld the family court’s determination.  If Lee did the crime, doing the time could certainly be expected.  Lee should not, according to the Chief Justice, be relieved of the very obligation that resulted from his heinous acts by virtue of going to jail for those same acts. 

In many other jurisdictions incarceration for voluntary criminal acts is no justification for modifying a child support (and by extension, a spousal maintenance) order.  Going to jail does not give criminals a free pass regarding other obligations like car or mortgage payments; how can we say that spousal maintenance and child support are less important?

In terms of policy, the Chief Justice’s dissent notes that if the incarcerated criminal is not relieved of his obligation to pay support, there is at least some chance that the arrearages will paid in the future, and some chance is better than none.