Appeal from Superior Court, Addison Unit, Family Division
R. Morwood, South Burlington, for Plaintiff-Appellant.
Otero-Weaver, Lincoln, for Defendant-Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund and Eaton, JJ., and
Cohen, Supr. J., Specially Assigned
1. Wife, Nicola Weaver, appeals the trial court's order
granting a motion filed by husband, David Weaver, to modify
his spousal maintenance obligation. Wife argues the trial
court erred in three ways: by (1) reducing her spousal
support to zero; (2) inaccurately calculating husband's
actual living expenses because the court declined to consider
husband's current wife's financial support of
husband; and (3) allowing a credit for overpayment of spousal
maintenance against a child support arrearage. We agree with
wife that the trial court erred on these three points of law
and therefore reverse and remand.
2. The parties were divorced in August 2011. At the time of
the divorce, they had been married for sixteen years and had
four children. Wife was fifty years old and husband was
forty-three years old. The trial court that presided over
their divorce proceedings ordered husband to pay wife $2916
per month in spousal maintenance and explained that the award
was intended to help wife meet her needs, but that it also
had a "compensatory aspect" based on the
court's finding that "[husband] wouldn't be
doing as well as he is unless [wife] was the primary
caregiver for the children." The court did not explain
how much of the monthly maintenance award constituted the
"compensatory aspect." The court ordered husband to
pay spousal maintenance "until [husband's] death,
[wife's] death or remarriage or her full retirement and
commencement of drawing pension payments and any social
security to which she may be entitled."
3. In September 2013, the court granted a motion filed by
husband seeking to modify his maintenance obligation because
of changed financial circumstances. Husband testified that he
lost a major client, which significantly reduced his income,
so the court reduced husband's spousal maintenance
obligation to $2500 per month, retroactive to July 2013. In
October 2014, husband filed a second motion to further modify
spousal maintenance on the basis that he had recently become
unemployed. The court held a hearing on husband's second
motion to modify over a three-day period in 2015. On July 29,
2015, the trial court concluded that husband's
involuntary termination from employment amounted to a
substantial change of circumstance under 15 V.S.A. § 758
and reduced husband's spousal maintenance obligation to
$1500 per month, retroactive to the date he filed the motion
to modify, October 29, 2014.
4. The relevant factual findings from the hearings on
husband's September 2013 and October 2014 motions are as
follows. In 1998, the parties and their minor children moved
to Vermont. At the time of their move, wife was earning the
equivalent of $40, 000 per year, and husband was earning $27,
000 per year. Once they moved to Vermont, wife stayed at home
to care for the children-three of whom were under the age of
three and all four of whom were under the age of seven-while
husband continued to work outside the home. At the time of
the divorce, husband was making $101, 688 per year and wife
about $18, 198 per year. In the final divorce order, the
court required husband to pay $2916 each month in spousal
maintenance to wife. The final divorce decree stated that
spousal maintenance would "help to meet [wife's]
shortfall and enable her to catch up."
5. In 2013, husband settled a claim for future lost earnings
that paid him $202, 692. Husband admitted by stipulation that
he failed to disclose this information during a hearing on
his first modification motion and that his maintenance
obligation therefore should not have been modified. Based on
this new information, the court reinstated husband's
spousal maintenance obligation at the original amount of
$2916 per month for the period between July 2013 and October
2014, pending an evidentiary hearing on the motion. The court
found that husband's unemployment was "a temporary
situation" and that he would likely be able to meet his
own needs and provide the modified $1500 per month
maintenance payment. The court also found that wife continued
to lack sufficient income to provide for her reasonable needs
and would likely be unable to sustain the standard of living
established during the marriage. The court calculated total
spousal arrearages of $8640 through May 31, 2015, and ordered
a judgment in favor of wife in that amount.
6. In February 2016, husband appealed that modification order
to this Court, and we reversed and remanded. Weaver v.
Weaver, 2015-326, 2016 WL 562907, at *1 (Vt. Feb. 1,
2016) (unpub. mem.),
[https://perma.cc/JK8S-KDLF]. On remand, the court found the
following facts. In September 2015, husband was employed as a
Building Automation sales representative, with a salary of
$55, 000. He was receiving residual checks in the amount of
$880 per month that would gradually decrease to zero. The
trial court calculated his present income, as of August 2016,
at $5463.33 per month, expected to decrease to $4583.33 per
month. The court found husband owed the Internal Revenue
Service approximately $50, 000 and the State of Vermont $14,
000 for delinquent income taxes. The court also found that
the settlement money husband received in 2013 was spent
reasonably and before he had any reason to expect becoming
7. Husband shares a home in Monkton with his present wife,
her three children and two of his children. At the
modification hearing on remand, wife emphasized that
husband's present wife subsidizes his expenses to the
extent of $5145 per month and sought to inquire into her
income. However, the court sustained husband's objection
limiting the inquiry to husband's current wife's
ability to meet her agreed-upon half of the household
8. The court found that husband's expenses exceeded $5000
per month, which included half of the household expenses
generated by his new family and which the court characterized
as his "fair share" of the expenses. He and his
current wife had an agreement between them that each would be
responsible for half of the household expenses. The court did
not include husband's tax liabilities, expenses for the
parties' children, or child support payments in its
calculation of his reasonable monthly expenses. The court
found that the house he shares with his present wife was his
only source of equity.
9. Because the court found that husband's reasonable
expenses exceeded his income, it concluded that he could not
be required to pay spousal maintenance in any amount and
reduced his obligation to zero, retroactive to October 29,
2014. The court's order characterized the maintenance
order as completely "compensatory, " but it
nevertheless weighed the equities and reduced husband's
obligation to zero. Under the August 2016 order, husband was
entitled to a return of funds paid since October 29, 2014.
10. The parties stipulated that husband was current on what
they believed was his spousal obligation of $2500 per month
from July 2013 through January 2015. Husband paid $600 in
spousal support after February 2015, but when the court
reinstated the $2916 per month spousal support for July 2013
through October 2014, it found that husband owed wife $6240.
There was no evidence before the court that husband was not
current with child support payments, but the court's
order permitted husband to offset the maintenance overpayment
against any child support arrearages due. Wife appealed.
11. A trial court's decision to award spousal maintenance
and its determinations about the amount and form of
maintenance are entitled to "wide discretion."
Strauss v. Strauss, 160 Vt. 335, 339, 628 A.2d 552,
554 (1993); see also Quesnel v. Quesnel, 150 Vt.
149, 151, 549 A.2d 644, 646 (1988) (explaining that
maintenance award must be affirmed unless "there is no
reasonable basis to support" it). A maintenance award is
proper when the spouse seeking maintenance "lacks
sufficient income, property, or both . . . to provide for his
or her reasonable needs" and "is unable to support
himself or herself through appropriate employment at the
standard of living established during the civil
marriage." 15 V.S.A. § 752(a)(1)-(2); see also
Miller v. Miller, 2005 VT 122');">2005 VT 122, ¶ 14, 179 Vt.
147, 892 A.2d 175 (2005). As we have explained, "[t]he
reference to reasonable needs should not be looked at in
relation to subsistence" because "[t]he critical
comparison is to the standard of living established during
the marriage" and the goal of spousal maintenance is to
"equalize the standard of living of the parties for an
appropriate period of time." Strauss, 160 Vt.
at 338, 549 A.2d at 554.
12. Where, however, a maintenance order ceases to effectively
accomplish the goal of equalizing the parties' standards
of living, a modification may be appropriate. See
Stickney v. Stickney, 170 Vt. 547, 548, 742 A.2d
1228, 1231 (1999) (mem.) ("Orders of support are not
final, and may be modified from time to time as circumstances
require."). Modification may be appropriate "upon a
showing of a real, substantial, and unanticipated change of
circumstances, " 15 V.S.A. § 758, and the heavy
burden for showing a change in circumstances lies with the
party seeking a modification. Mayville v. Mayville,
2010 VT 94, ¶ 8, 189 Vt. 1, 12 A.3d 500.
13. This Court evaluates whether a change is
"substantial" by reference to the context of
surrounding circumstances, which may include the parties'
current financial situations, the effect of a new
spouse's income on the needs and expenses of the obligor,
and any reasonable estimates of future income.
Mayville, 2010 VT 94, ¶¶ 8, 15-16.
Additionally, in determining the amount of maintenance in a
modification proceeding, the court may properly consider any
income available to the obligor from assets distributed as
part of the original divorce decree and property award.
Id. ¶ 10. As with an award of maintenance, a
trial court has broad discretion in modifying maintenance and
its findings will stand "unless the discretion was
erroneously exercised, or was exercised upon unfounded
considerations or to an extent ...