2011 VT 38


Herring v. Herring, Jr.
(2010-017)
 
2011 VT 38
 
[Filed 05-May-2011] 
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to notify
the Reporter of Decisions, Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801 of any errors in order that
corrections may be made before this opinion goes to press.
 
 

2011 VT 38

 

No. 2010-017

 

Kimberlee
  J. Herring


Supreme Court


 


 


 


On Appeal from


     v.


Windham Family Court


 


 


 


 


Lee K. Herring, Jr. 


June Term, 2010


 


 


 


 


Katherine
  A. Hayes, J.


 

Kimberlee Herring, Pro Se, Brattleboro, Plaintiff-Appellee.
 
Lee K. Herring, Jr., Pro Se, Springfield,
Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Johnson, Skoglund and Burgess, JJ.
 
 
¶ 1.            
DOOLEY, J.  Husband Lee Herring, pro se, appeals from the
family court’s denial of his motion to terminate spousal maintenance to wife
Kimberly Herring.  Serving a post-divorce prison sentence for sexual
assaults against his daughter, husband no longer has a source of income. 
The family court held that his incarceration was not an “unanticipated change of
circumstances” justifying modification under 15 V.S.A. § 758 because
incarceration was a foreseeable consequence of his crimes.  For the
reasons set forth below, we reverse.  
¶ 2.            
The couple divorced on April 8, 2008.  The divorce decree required
husband to pay $1000 per month to wife as permanent spousal maintenance, to end
when either party dies or reaches the age of sixty-five.  The divorce
decree was affirmed by this Court. See Herring v. Herring, No. 2008-204,
2009 WL 2410254 (Vt. March 5, 2009) (unpub. mem.), available at
http://www.vermontjudiciary.org/d-upeo/upeo.aspx (holding that trial court did
not err in assessment of parties’ income, or in refusing to continue
proceedings until criminal charges were resolved).
¶ 3.            
In December 2008, eight months after the order of divorce and
maintenance was entered, husband was found guilty of sexual assault and lewd or
lascivious conduct for numerous acts involving his daughter when she was
between the ages of six and sixteen.  Husband’s sexual abuse of the
couple’s daughter was a major factor in their divorce.  The State’s first
prosecution of husband ended in a hung jury, which occurred before the divorce
was granted.  After the second trial, in June 2009, husband was sentenced
to serve an aggregate of thirty five years to life in jail.  Upon
conviction, he was immediately incarcerated.  Husband appealed his
convictions and sentences, and his criminal case was reversed and remanded for
a new trial.[1]
¶ 4.            
Husband paid maintenance pursuant to the divorce order for the first six
months following the divorce, but he stopped making payments after October
2008.  Arrearages on the permanent maintenance, as well as on an earlier
award of temporary maintenance, were paid out of funds escrowed from the sale
of the parties’ marital home.  No money remains from this sale, and
husband has no other assets or source of income.
¶ 5.            
Wife filed a motion to enforce spousal maintenance some three months
after husband’s incarceration.  Husband responded with a motion to
modify.  Denying the motion to modify, the family court granted wife’s
motion to enforce maintenance.  This appeal by husband followed on the
question of whether the family court erred in holding that husband’s
incarceration was not an unanticipated change in circumstances warranting
modification of the maintenance award.
¶ 6.            
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.” An unanticipated change in circumstances 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.  Taylor v. Taylor, 175 Vt. 32, 36, 819 A.2d 684, 688 (2002). 
Rather, “evaluation of whether or not any given change is substantial must be
determined in the context of the surrounding circumstances.”  Id.
(quotation omitted).  We accord that determination considerable deference
on review.  See Braun v. Greenblatt, 2007
VT 53, ¶ 11, 182 Vt. 29, 927 A.2d 782 (discussing standard of review for
determinations of substantial change of circumstances).  “Thus, 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.”  Meyer v. Meyer,
173 Vt. 195, 197, 789 A.2d 921, 923 (2001).  Despite the deference
we give the trial court, we cannot uphold its decision in this case because it
misapplied the standard for determining whether a change of circumstances is
unanticipated.  
¶ 7.            
The family court reasoned that husband’s incarceration was not an
unanticipated change because the divorce decree took his alleged criminal activity
into account, referencing the fact that husband faced the prospect of retrial
for his criminal charges, and because the underlying conduct that led to
incarceration was “voluntary, willful, and had a devastating impact on the
family.”  We cannot conclude that the pendency of the criminal
proceeding or the nature and impact of husband’s crimes made his incarceration,
and resulting loss of income, anticipated.  Though incarceration may have
been a foreseeable consequence of husband’s alleged crimes, husband was unable
to rely upon his future possible incarceration to avoid payment of maintenance
when the original order was created.  This is the rule from DeKoeyer v. DeKoeyer:
“irrelevant was defendant’s speculation regarding his future economic condition;
only his condition contemporaneous with the hearing and his condition at the
time of the divorce were relevant.”  146 Vt. 493,
495-96, 507 A.2d 962, 962-64 (1986).  At the time of the divorce,
husband was criminally charged with sexually assaulting his daughter, and his
first trial had ended in a mistrial.  It was pure speculation whether
husband would be convicted after a second trial and what his sentence would be
if convicted.  Although the criminal prosecution and future retrial were
known at the time of the divorce hearing, the hearing proceeded on the basis
that husband was working and producing income and would continue to do
so.  There was no consideration of how the result of the criminal trial
might affect husband’s income-producing capacity and for how long.  It
would have been impossible to consider this without speculation and an attempt
at a contingent order with numerous unpredictable contingencies.  Thus,
the divorce order makes no mention of his possible incarceration in setting the
maintenance order even though the family court was clearly aware of the
circumstances. 
¶ 8.            
Because husband’s incarceration was not taken into account in deciding
the original maintenance order, we hold that the incarceration was
“unanticipated” for purposes of 15 V.S.A. § 758.  The term “unanticipated”
in § 758 must be interpreted by reviewing the facts and circumstances
underlying the divorce order and determining whether 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.  We outlined this rule in Shaw
v. Shaw, 162 Vt. 338, 340-41, 648 A.2d 836, 838 (1994).  In that
case, the husband sought termination of his maintenance obligation because he
lost his job, and his wife answered that the job loss was caused by the
husband’s criminal conduct in connection with his work, conduct for which he
was being investigated at the time of the divorce.  While we affirmed a
decision of the family court to reduce but not terminate the husband’s
obligation, we rejected the argument that the husband’s job loss was
anticipated.  Id. at 340-41, 648 A.2d at 838-39. 
In Shaw, we specifically noted that the husband’s termination had not
been considered in negotiating the original maintenance award, and we disagreed
with the wife’s claim that the husband’s termination was anticipated because
the husband was under investigation a year before the divorce for alleged
criminal activities.  Id. at 340, 648 A.2d at 838. 
We concluded that if the husband’s termination was not fully taken into account
by the original divorce, then it could not later be found to have been
“anticipated.”  Id. at 340-341, 648 A.2d at 838. 
As in Shaw, husband’s incarceration here was not fully contemplated by
the original maintenance award.  At the time that maintenance order was
written, husband’s criminal case had not yet concluded, and his conviction and
incarceration were still uncertain.
¶ 9.            
Cases from other state courts have similarly allowed for the subsequent
consideration of “unanticipated” circumstances if the “unanticipated” change
was not fully taken into account by the court deciding the original divorce
order.  In coming to a conclusion in Shaw on the issue of whether
the husband’s termination was anticipated, this Court referenced two
out-of-state cases which allowed circumstances that were speculative at the
time of divorce to be considered later for modification purposes: Chaney v.
Chaney, 699 P.2d 398, 401-02 (Ariz. Ct. App. 1985) (holding that though
future retirement was contemplated when decree issued, date was speculative and
did not bar later modification), and Lambertz
v. Lambertz, 375 N.W.2d 645, 646 (S.D. 1985) (per
curiam) (noting that although trial court was aware
that husband might retire after decree issued, evidence was speculative and did
not bar modification based on substantial reduction in income).  Shaw,
162 Vt. at 340, 648 A.2d at 838.  Oregon’s
interpretation of its modification statute, Or. Rev.
Stat. § 107.135, is consistent with this rule.  In In
re Marriage of Wilson, for example, a husband argued that he had not retired
at the time of the dissolution of his marriage, so his retirement eight months
afterwards was not an anticipated change.  63 P.3d 1244,
1249 (Or. Ct. App. 2003).  The court stated that “even if husband’s
retirement was foreseeable when the parties’ marriage was dissolved, the timing
of its occurrence was speculative and, thus, it could not have affected his
support obligations at that time.  It follows that husband’s
post-dissolution early retirement constituted an unanticipated change of circumstances.” 
Id.  Like the retirement situations in Marriage of Wilson, Lambertz, and Chaney, the possibility in this
case that husband would be incarcerated was still speculative and was not
considered in initially determining spousal maintenance.  Incarceration should
therefore have been considered an “unanticipated” change for purposes of
modifying maintenance. 
¶ 10.         Although
it did not say this explicitly, the family court decision suggested that
husband’s loss of income should not be considered for the purpose of the motion
to modify maintenance because it was caused by voluntary criminal
conduct.  We recognize that an obligor spouse’s “[v]oluntary
termination of employment without good reason” generally disqualifies the
spouse from support modification.  Shaw, 162 Vt. at 340, 648 A.2d at 838.  Here, however, the incarceration was
involuntary although the conduct that resulted in the incarceration may have
been voluntary.  Again, the key precedent is Shaw. 
There, we specifically stated that wrongdoing that results in diminished income
may fall within the category of voluntary termination of employment and bar
modification of maintenance based on changed circumstances.  Id.  At the same time, however, we held that in a
situation where a job was lost due to wrongdoing that occurred before a
divorce, the loss of employment was not voluntary.  Id. 
Because the husband’s firing in Shaw “was triggered by events that had
occurred eight years earlier,” we concluded that the facts “would not support a
conclusion that his loss of employment was voluntary.”  Id. 
In the present case, as in Shaw, husband’s wrongdoing occurred
significantly prior to the divorce.  As discussed in that case, any
speculation that husband might lose his job as a result of the wrongdoing was
not taken into account at the time of divorce in determining the maintenance
award. Here, as in Shaw, husband took no voluntary action subsequent to
the creation of his support obligation that jeopardized his employment or his
ability to pay maintenance.  Husband’s incarceration and his resulting
loss of income cannot be considered voluntary in terms of his maintenance
obligation because these circumstances were entirely due to events that
occurred before the divorce.
¶ 11.         We
recognize that there are public policy reasons to impose a continuing spousal
support obligation, based on his or her former income, on an obligor who is
incarcerated for commission of a crime.  Implementation of these policy
reasons should be done by the Legislature, rather than by this Court, through
an appropriate statutory amendment that will precisely define when the
obligation to pay spousal maintenance should continue despite the termination
of the obligor’s source of income to pay the maintenance.
Reversed and
remanded for further proceedings consistent with this order.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 
¶ 12.         REIBER,
C.J., dissenting.  
I would uphold the family court’s determination that husband’s incarceration
due to his voluntary criminal acts against the parties’ daughter should not be
considered an unanticipated change of circumstances relieving him of his
maintenance obligation.[2] 
Both our law and public policy considerations compel me to conclude that an
obligor may not avoid a support obligation as the result of criminal acts that lead
to the obligor’s incarceration—particularly where, as the family court found,
husband’s acts were the pivotal causal factor in the parties’ divorce and
ensuing support obligation.  Accordingly, I respectfully dissent.
¶ 13.         Many,
if not a majority of, jurisdictions have adopted the “no justification” rule
precluding the elimination or reduction of support obligations based on the
obligor’s incarceration.  See Staffon
v. Staffon, 587 S.E.2d 630, 631, 632 n.7 (Ga.
2003) (holding that “obligor’s imprisonment for voluntary criminal acts is not
grounds for a downward modification of child support obligations” based on
changed circumstances, and noting that “[a]t least 17 jurisdictions that have
considered this issue adhere to this approach”); Yerkes v. Yerkes, 824
A.2d 1169, 1172 n.3, 1173 (Pa. 2003) (adopting “no justification” rule and
noting that “[a]t least fifteen jurisdictions appear to adhere to this
approach”), superseded by rule as stated in Plunkard
v. McConnell, 2008 PA Super 282, ¶ 9, 962 A.2d 1227; see, e.g., Knights
v. Knights, 522 N.E.2d 1045, 1046 (N.Y. 1988) (mem.)
(concluding that trial court did not abuse its discretion in determining that
father’s incarceration and ensuing financial hardship were not changed
circumstances warranting reduction or suspension of child support payments); Ohler v. Ohler, 369
N.W.2d 615, 618 (Neb. 1985) (stating that incarceration “is certainly a
foreseeable result of criminal activity” and that child support obligor may not
be relieved of payments “by virtue of fact that he or she engaged in criminal
conduct”), superseded by statute as stated in Hopkins v. Staoffer, 775 N.W.2d 462, 466 (Neb. Ct. App. 2009).
¶ 14.         Most
of these cases concern child support obligors, but because neither child
support nor maintenance obligations are punitive in nature and both are aimed
at “meeting the reasonable needs of the obligee,”
there is no reason to apply the “no justification” rule to child support but
not maintenance.  Willoughby v. Willoughby, 2004 PA Super 439, ¶¶
1, 15-16, 862 A.2d 654 (“We hold that an obligor’s incarceration due to
criminal activity does not alone represent a ‘change of circumstances’ to
justify complete relief from the obligor’s spousal support
obligations.”).  Indeed, the public policy principles concerning equity
and fairness, discussed below, that favor applying the “no justification” rule
in child support cases also favor applying the rule to maintenance
obligations.  Id. ¶ 17.
¶ 15.         Courts
adopting the “no justification” rule have reasoned that it would be unfair to obligees to suspend support obligations as the result of
the obligors’ voluntary criminal activities that could foreseeably
lead to incarceration and loss of income.  See, e.g., Staffon, 587 S.E.2d at 633; Yerkes, 824 A.2d
at 1176-77.  I agree that it would be anomalous to offer criminals
a reprieve from their support obligations “when we would not do the same for an
obligor who voluntarily walks away from his job.”  Yerkes,
824 A.2d at 1176 (quotation omitted).  Moreover, by waiving support
payments for incarcerated obligors, we would effectively subordinate those
payments to other financial obligations that under the law are not affected by
the incarceration of the obligor.  See id. at 1175 (“[W]e simply
cannot justify relieving incarcerated parents of their child support
obligations when they are not relieved of their other financial obligations.”);
see also Staffon, 587 S.E.2d at 633 (“When
people are incarcerated, they are not relieved of their other financial responsibilities,
such as the making of restitution, car or mortgage payments, and the duty to
support a child should be afforded at least the same legal status as these
obligations”).
¶ 16.         In
situations involving incarcerated obligors, we have two choices—we could
suspend their support obligations and thereby eliminate any chance of the obligees obtaining the support that they were granted or we
could refuse to suspend the obligations and allow the payments to go into
arrears if necessary.  In either situation, an obligee
most likely would receive no support during the obligor’s incarceration, but at
least the obligee would have some hope of being
reimbursed in the future for arrears in situations where the support obligation
had not been suspended.  Yerkes, 824 A.2d at 1174 (noting that “the
‘no justification’ rule at least provides for the possibility that the obligor
will repay the support” obligation).  Indeed, in this case, the trial
court noted in support of its findings that at some point husband might begin
to receive a future stream of income from social security or pension benefits
that could allow him to make payments toward any support arrearage.  For
all of these reasons, we should not consider incarceration to be an
unanticipated changed circumstance sufficient to relieve an obligor of support
payments.
¶ 17.         This
approach is supported by our law.  The governing statute provides that a
court may modify a maintenance order “upon a showing of real, substantial, and
unanticipated change of circumstances.”  15 V.S.A. §
758.  “A change is unanticipated if it was not expected at the time
of divorce.”  Knutsen v. Cegalis, 2009 VT 110, ¶ 33, 187 Vt. 99, 989 A.2d 1010
(quotation omitted) (referring to identical clause in child custody and support
modification statute).  Here, if husband committed the charged criminal
acts against his daughter, his divorce, incarceration, and loss of income
stemming from those acts could certainly be expected.
¶ 18.         In
support of its holding, the majority relies primarily on retirement and
loss-of-job cases.  According to the majority, because the divorce courts
in those cases did not take into account the potential financial repercussions
of the obligor’s possible retirement or job loss, the retirement or job loss
had to be considered “unanticipated.”  But, for the reasons stated above,
the situation is qualitatively different when an obligor’s voluntary criminal
activity led to the loss of income.  When the obligor’s voluntary criminal
acts result in incarceration and loss of income, we should not, as a matter of
public policy, compel the trial court to weigh the financial repercussions of
the incarceration before the incarceration can be considered anticipated. 
In essence, in such situations, we should hold that public policy
considerations preclude a finding that the incarceration is unanticipated.
¶ 19.         The
principal case upon which the majority relies, Shaw
v. Shaw, is entirely consistent with my position.  162
Vt. 338, 648 A.2d 836 (1994).  In Shaw, the family court
refused to modify the obligor’s maintenance obligation after he was terminated
from his job, at least in part, for job-related wrongdoing that had occurred
years before the divorce.  We expressly acknowledged that “[w]rongdoing that results in diminished income may fall within
the category of voluntary termination of employment and bar modification of
maintenance on grounds of changed circumstances,” but agreed with the husband
that “the wrongdoing in this case would not support a conclusion that his loss
of employment was voluntary.”  Id. at 340, 648
A.2d at 838.  In so ruling, we noted that (1) “[t]here was no
evidence that, at the time of the divorce, either party had any reason to
believe husband would lose his job because of his prior actions”; and (2) the
testimony at the divorce hearing did not suggest that the parties’ settlement
agreement had been affected in any way by the possibility of a later job
loss.  Id.
¶ 20.         In
contrast, here, in issuing the divorce decree, the family court specifically
noted the “pivotal causal connection” between husband’s
molestation of his daughter and the parties’ divorce.  Moreover, there can
be no doubt husband was aware that his acts against his daughter, if revealed,
would likely lead to the parties’ divorce, a maintenance obligation, and
incarceration.  The obligor in Shaw could not have anticipated that
his unauthorized purchase of a truck from a company vendor would lead, years
later, to either his loss of employment or his divorce.  The same cannot
be said of husband’s actions here.
¶ 21.         In
short, the facts in Shaw are different from the facts in this case, but
the rationale underlying Shaw supports affirming the trial court’s
decision here.  In the event that husband is ultimately convicted and
incarcerated for sexually assaulting the parties’ daughter over the course of
several years, he should not be relieved of the very obligation that resulted
from such heinous acts.  Cf. Waskin v.
Waskin, 484 So. 2d 1277, 1278-79 (Fla. Dist. Ct.
App. 1986) (concluding that modification of alimony was not warranted where
husband’s reduced finances resulted from expense in defending against criminal
charges alleging that he hired someone to murder his wife, as cited in Shaw).

 


 


 


 


 


 


 


 


Chief
  Justice

 







[1] 
Husband’s criminal conviction was reversed and remanded after the current case
was heard for oral argument.  See State v. Herring,
2010 VT 106, 188 Vt. ___, ___ A.3d___.  Husband has been released
on conditions of bail pending a retrial.  Our recitation of the facts
above does not reflect these later events. 


[2] 
This Court reversed husband’s conviction and denied the State’s motion for
reargument; thus, husband’s future incarceration is once again uncertain. 



