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Atherton v. Atherton

Supreme Court of Vermont

March 1, 2019

Holly Atherton
v.
Mark Atherton

          On Appeal from Superior Court, Bennington Unit, Family Division John W.Valente, J

          Brian K. Marthage, Bennington, for Plaintiff-Appellee.

          James A. Valente of Costello, Valente & Gentry, P.C., Brattleboro, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Morris, Supr. J. (Ret.), Specially Assigned

          SKOGLUND, J.

         ¶ 1. Husband, Mark Atherton, appeals the trial court's order denying his motion to modify spousal maintenance payments to wife, Holly Atherton, for failure to show a real, substantial, and unanticipated change in circumstances as required by 15 V.S.A. § 758. We reverse.

         ¶ 2. Husband and wife married in 1986. They lived in Vermont for most of their married life, though prior to their separation, they briefly lived together in Florida. They separated and filed for divorce in May 2016 in Vermont. The trial court signed and issued the final divorce order, which incorporates the terms of a stipulation agreed to by the parties, on June 27, 2017. The final order requires husband to pay $1500 per month in spousal maintenance from 2017 until 2027. If husband chooses not to retire in 2027, he will continue making payments of $1500 per month until 2029, when payments would be reduced to $350 per month until 2031. If husband chooses to retire in 2027, the spousal maintenance will be reduced to $350 per month and continue until 2031.

         ¶ 3. Prior to and throughout the pendency of the divorce proceedings, husband was employed by a national insurance company and made $5895 per month.[1] In June 2016, one month after the parties filed for divorce and one year prior to the final order, husband received a "final written warning" from his supervisor, even though he testified that he had not received any prior written warnings. The warning letter reprimanded husband for failing to follow company policies, sanctioned him, and advised him that failure to maintain acceptable conduct and performance could lead to future sanctions, including termination.[2]

         ¶ 4. In April 2017, husband took a paid leave of absence, during which he received disability benefits. Husband requested the leave due to his mental health-he was "consumed with the divorce," which manifested as anxiety and depression and made it challenging to function at work. When he returned from his leave of absence, husband believed that he was going back to work in the same capacity. Instead, upon his return in early August 2017, husband's employer placed him on unpaid leave and terminated him on August 22, 2017.

         ¶ 5. After his termination, husband returned from Florida to Vermont to look for work. Husband found two part-time jobs but was unable to afford housing and was struggling to pay his monthly bills. Husband asserted that the primary cause of his financial challenges was his obligation to pay alimony when he no longer earned as much as he did when employed by the insurance company. As a result, husband filed a motion to modify his spousal maintenance on September 13, 2017, seeking a temporary reduction to $500 per month while he looked for better-paying work, with a revised determination once he had secured long-term employment. In his motion, he explained that he was unable to find a job that would pay him what he earned when he was employed at the insurance company and argued that his termination was a real, substantial, and unanticipated change in circumstances and thus was grounds for modification pursuant to 15 V.S.A. § 758 and Vermont Rule of Family Proceedings 4.2(d).

         ¶ 6. Wife opposed husband's motion to modify, and two hearings were held-the first in December 2017 and the second in March 2018. At the first hearing, husband informed wife and the trial court for the first time about the warning letter he received in June 2016 and the leave of absence he took in April 2017. Husband testified that he understood if he did not improve his performance and address the issues outlined in the warning letter, his employment could be terminated. He further testified that after the warning letter, he attempted to maintain a level of acceptable conduct and performance in order to avoid further sanctions and did not feel as though his job was in jeopardy.

         ¶ 7. In an April 2018 order, the trial court denied husband's motion to modify spousal maintenance. The trial court reasoned that husband alone knew of the warning letter, the behavior that led to said warning, and his leave of absence from work when he signed the stipulation agreeing to the spousal maintenance arrangement. And although he was terminated from his employment one month after the final order, the fact "[t]hat [husband's] employer's known, expressed dissatisfaction with his conduct could ripen into actual termination was a reasonable possibility at the time the stipulation was entered into." Therefore, the trial court concluded that husband failed to meet his burden of showing by a preponderance of the evidence that a real, substantial, and unanticipated change in circumstances existed to support modification.

         ¶ 8. This appeal followed. Husband argues that the trial court's determination that his termination was not a real, substantial, and unanticipated change in circumstances was in error because it was based on the erroneous conclusion that husband's knowledge that he might be terminated eliminated his ability to move for modification when he was actually terminated. Wife counters by asserting that not only was husband's termination not unanticipated, husband should also not benefit from the failure to disclose the warning letter and leave of absence during the negotiations on the stipulation for the final order.

         ¶ 9. Pursuant to 15 V.S.A. § 758, the trial court may modify a spousal maintenance order only "upon a showing of a real, substantial, and unanticipated change in circumstances." This is "a jurisdictional prerequisite" for modification of spousal maintenance, and "the burden is on the moving party to establish the requisite change." Golden v. Cooper-Ellis, 2007 VT 15, ¶ 57, 181 Vt. 359, 924 A.2d 19. "The threshold determination of changed circumstances is discretionary, and no fixed standards exist for determining what meets the threshold." Herring v. Herring, 2011 VT 38, ¶ 6, 190 Vt. 19, 24 A.3d 574. Instead, the "evaluation of whether or not any given change is substantial must be determined in the context of the surrounding circumstances." Taylor v. Taylor, 175 Vt. 32, 36, 819 A.2d 684, 688 (2003) (quotation omitted). Because we afford this determination significant deference on review," 'we will not disturb the court's determination unless its exercise of discretion was on grounds or for reasons clearly untenable, or the exercise of discretion was to a clearly unreasonable extent.'" Herring, 2011 VT 38, ¶ 6 (quoting Meyer v. Meyer, 173 Vt. 195, 197, 789 A.2d 921, 923 (2001)). As we concluded in Herring, ...


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