Saturday, July 8, 2017

The All New Let’s Make A Deal

Weaver . . . get it?
Weaver v. Weaver, 2017 VT 58

By Elizabeth Kruska

My husband and I have a deal in our marriage. Whoever cooks dinner is absolved of cleanup duties. If I cook, he cleans up. If he cooks, I clean up. There was this fabulous time right after Hurricane Irene when our town didn’t have water. That was also the exact same day he decided to make a delicious chicken and vegetable stir fry, using—and I am not making this up—seven bowls, three pans, two cutting boards, and all the spoons. But because we didn’t have running water I couldn’t wash the dishes. I had to rinse off the dishes in the stream behind our house because if I didn’t they’d get funky in the sink, and because a deal is a deal. He cooked, I cleaned up. In the days following we ate a lot of PBJ’s until the town felt it was safe to turn the water back on. I’m not at all ashamed to admit that PBJ and PBR is a perfectly adequate dinner in August. (Do not confuse Pabst Blue Ribbon with the Professional Bull Riders Association. Both are PBR’s, both are great, but they are significantly different in terms of thirst quenching and contact with very large, horned animals.)

This deal is not a big deal. And in terms of marriage-related agreements, it’s fairly minor. A bigger, and very common agreement often has to do with raising children. It’s completely normal for one spouse to work while the other either works part time or stays home if a family has kids. There are loads of reasons for this, and all are completely valid.

The spouse who doesn’t stay home gets a significant benefit. Although it’s a one-income situation, it ensures that the kids are home and raised according to how the family wants to do that. It also potentially means that the spouse at home keeps the home in working order. It also means the working spouse has the benefit of continuity of career, which leads to advancement and higher rates of pay.

There’s a huge value in the context of a marriage to an arrangement like this but it’s hard to monetize. It’s not as if there’s a pay scale out there that somehow says, “If you stay home and raise the kids and make sure the house is in working order, and pay the bills, and run the errands so the family doesn’t have to do it on weekends, and mow the lawn… you earn $50/hour” or whatever. I have no idea what a fair wage for that would be since it’s about, you know, turning babies into Senators or heart surgeons or guitarists and it’s not like that’s an easy thing to do.

What happens if the marriage breaks up? Maybe the spouse who stayed home is entitled to some maintenance going forward. Suppose the stay-home spouse went to college and worked for a couple years at the entry-level, but then was out of the work force for eight years or so while the kids were little. It’s not going to be easy to get back in to the work force with outdated skills and a huge resume gap. And it’s not as if that person was doing nothing—they just weren’t working in a situation where they could get paid for it. Meanwhile the working spouse was able to further his or her career, which they can still do if there are working years left. It’s only fair that the stay-home spouse be compensated for the contributions he or she made, since that’s the deal they made, and since the working spouse still benefits from it.

All that finally gets us to the Weavers. Mr. and Mrs. Weaver were married for sixteen years and had four kids. At one point they had 4 kids all under the age of seven. Mrs. Weaver stayed home with the Fab Four, while Mr. Weaver worked outside the home. When they divorced, Mrs. Weaver was 50 and Mr. Weaver was 43. Mr. Weaver was ordered to pay $2916 per month in maintenance to Mrs. Weaver. At the time of the final order, the court found that Mr. Weaver was able to do as well as he did because Mrs. Weaver kept the wheels on at home. That seemed to signify that the award was at least partially compensatory in nature. The maintenance award was also partially rehabilitative in nature, as the court found it was meant to help Mrs. Weaver “catch up” after having been out of the work force for around a decade. This was supposed to continue until her death, remarriage, or until she started to draw her retirement.

Two years later, though, Mr. Weaver lost a major client at his job, which caused his income to decrease. He filed a motion to modify the maintenance payment. There was a hearing and the maintenance amount was reduced to $2500/month. He then filed a second motion a year or so later, this time because he had been involuntarily terminated from his job. This time the maintenance got reduced to $1500/month. There was some evidence also about Mr. Weaver not reporting a large settlement, which would have been equal to about two years’ pay. Also, Mr. Weaver owed a lot of money in back taxes.

Mr. Weaver appealed to SCOV, who reversed and sent it back to the lower court. The lower court took up the matter again and did some additional fact finding. At this point Mr. Weaver was remarried and lived in a home with his new wife, her kids, and two of his own kids. The New Mrs. Weaver worked and was able to support a lot of the family’s expenses. Testimony came out that they had a deal where they shared expenses. But because Mr. Weaver didn’t work at that point, he couldn’t keep up his end of the shared-expenses deal. The court found that because his new wife was his only source of income, and because it couldn’t make her pay Mr. Weaver’s prior maintenance award, that he couldn’t pay any to the Former Mrs. Weaver. She appeals.

SCOV reverses for three reasons.

First of all, maintenance is not really an exact science. Trial courts have really wide discretion in ordering spousal maintenance. We have two kinds of maintenance: rehabilitative and permanent. Rehabilitative maintenance is the Gloria Estefan of maintenance. It’s meant to help you Get On Your Feet so you can get up and make it happen. Maintenance isn’t meant to be a windfall. It’s meant to keep the receiving spouse at the same standard of living they enjoyed during the marriage. Sometimes it doesn’t really take a whole lot for the receiving spouse to get him or herself into the position to do that. That’s what rehabilitative maintenance is for.

Or, maintenance can be “permanent.” I put it in quotes because it can end, like with the recipient spouse’s death or remarriage. This tends to be used more in long-term marriages or where short-term transitional-type rehabilitative maintenance wouldn’t do the trick. If the receiving spouse can’t reasonably become self-sufficient and get him or herself to the standard of living enjoyed during the marriage, it’s going to look more like a permanent maintenance situation.

But then there’s this concept of compensatory maintenance. That isn’t spelled out in our statutes, but does end up happening in permanent maintenance situations. It’s appropriate where the working spouse continues to get the benefit of the other spouse even after the marriage ends. For example, suppose husband stays home to care for the kids, while wife works out of the home as a lawyer. Initially she starts out by making $50,000 per year. They divorce ten years later. Because wife can still practice (really, we lawyer types pretty much never stop working), and because she had the benefit of continuous work over the years that husband stayed home, her earning ability is now $100,000 per year. She still gets the benefit of the fact husband stayed home. Courts have to look at every situation individually to determine what’s right in each marriage.

This can be modified, of course. If the paying spouse seeks a modification, and if the modification is going to affect the portion of the maintenance award that’s meant to be compensatory, there are a couple things to prove. First of all, it really helps to know what portion of the maintenance award is “compensatory.” Second, the paying spouse has to show there’s a change in circumstances, and it has to be relative to the original award. The paying spouse also has to show that he or she no longer benefits from the recipient spouse’s contributions during the time of the marriage.

A change in employment usually isn’t going to be enough to make a compensatory portion of a maintenance award be changed to zero. And certainly if the unemployment or other change is self-inflicted, the court isn’t going to look kindly on that. A spouse who thinks, “Meh, I don’t wanna pay maintenance so I’m quitting my job” isn’t going to be able to get away with that.

So, the problem in the Weavers’ case was that the trial court reduced the maintenance award to zero, but it really wasn’t clear what part was supposed to be compensatory. There’ll have to be further findings about that to figure out how apportion things correctly.

SCOV also thought it was an error for the trial court not to consider Mr. Weaver’s full financial picture. No, they can’t make his new wife pay his maintenance obligation. But just because he couldn’t fulfill his half of the household bills in his new living situation doesn’t mean he couldn’t pay his maintenance. Whenever there are two people sharing bills it’s going to be a different picture than if it’s just one person. Suppose Mr. Weaver had been living at The Bachelor Arms and paying $750 per month in rent, but then got remarried and moved in with his new wife who owns her home outright, that’s $750 per month he’s not spending on rent. That doesn’t mean there aren’t other expenses, it just means his expenses look different because he’s sharing. SCOV says trial courts need to look at all this so there’s a full picture of the situation.

Last, the trial court had found that Mr. Weaver overpaid maintenance but had a child support arrearage. Seems like an easy fix—apply the maintenance overage to the other arrearage, and bang—that’s done.

SCOV reverses on this point and says, “Nope, nope, nope.” Numbers-wise, if you’re just moving money from one column to the other, it makes sense. But nope. Child support is for the children. Maintenance is for the former spouse. They are meant for different things. They are meant for different people. They are governed by entirely different statutory sections. They are calculated differently. Child support also has interstate enforcement rules. So, SCOV reverses on this point, as well, because a maintenance overpayment cannot be used to satisfy a child support arrearage.

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