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| These biscotti have almonds baked in, not alimony |
By Chris Larson
I’m writing about this case from the Speakeasy Cafe in Rutland, eating a plate of almond cookies. As an aside, this is a really good cookie and a fabulous coffee shop. Check it out if you’re in our fair city.
This aside is related to our discussion of this case because these cookies have fat almonds baked into them with the pointy ends sticking out of the sugared tops. And the rule of the case concerns the information “baked in” to decisions on spousal maintenance. I can’t take credit for this tortured metaphor—the Supreme Court came up with it, as you will read shortly.
This case is about whether you can get your alimony payments reduced if you lose your job.
The husband in this case asked the family court to reduce his spousal maintenance obligation after he lost his job. The trial court refused to do so, but the Supreme Court overturns this decision.
Husband was an adjuster for an insurance company making about $70,000 per year.
Husband and wife were married for twenty years. When they got divorced , the trial court ordered Husband to pay $1,500 per month to Wife for ten years. That’s $180,000. After those payments, he would continue to pay a lesser amount, depending on whether he retired.
While the divorce was pending, but before the final order, Husband received a written warning from his supervisor that sounded pretty serious. It warned that he might be terminated. Shortly before the divorce proceedings ended with an order, Husband took a leave of absence, in part because of the anxiety and depression from the divorce. After the divorce was final, he returned to work briefly but was fired after less than a month.
Husband filed to modify his spousal maintenance downward while he looked for new work. Wife opposed this motion.
The question for the trial court was whether the termination of Husband’s employment was foreseeable. That’s because the standard to modify the spousal maintenance award is a “real, substantial, and unanticipated change of circumstances.” There’s no doubt that losing his career job was a real and substantial change—the only question was whether it was foreseeable. Strangely, if Husband knew he would be fired, he would be unable to change the order; if he didn’t foresee it, all was well.
The trial court denied Husband’s motion, meaning he would be required to keep paying $1,500 per month even though he didn’t have a job. The reasoning was that Husband knew, at the time he filed the stipulation that provided the basis for the judgment, that he had been warned that he might be fired.
Did Husband’s knowledge that he might be fired mean that he can’t get his alimony reduced when he does get fired?
The Supreme Court rehearses a history of opinions on the issue of when a termination is foreseeable. It notes cases that found a termination caused by wrongdoing engaged in years before a divorce was not a foreseeable reason. It discusses a case where the payor spouse was charged with a crime at the time of a divorce, but sentenced after, and found that loss of income unforeseeable as well. Finally, it reviews the facts of a case where the payor spouse was remarried, causing an increase in expenses. The Court reversed that case as well, noting that remarriage might be a “reasonable anticipation,” it was not foreseeable, either.
The Supreme Court derives from these cases the rule that a change is unanticipated if it departs substantially from the assumptions considered in the maintenance order. The question is whether the change of circumstance was “baked in” to the support order or not. I’m not kidding about this—that’s the rule articulated in paragraph 18 of Atherton.
And with that, I’m getting another round of almond cookies.
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