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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.


                                          2017 VT 58

                                         No. 2016-306

Nicola Weaver                                                 Supreme Court

                                                              On Appeal from
   v.                                                         Superior Court, Addison Unit,
                                                              Family Division

David Weaver                                                  February Term, 2017


Samuel Hoar, Jr., J.

Paul R. Morwood, South Burlington, for Plaintiff-Appellant.

Wanda Otero-Weaver, Lincoln, for Defendant-Appellee.


PRESENT: Reiber, C.J., Dooley, Skoglund and Eaton, JJ., and Cohen, Supr. J.,
         Specially Assigned


        ¶ 1.   EATON, J. 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,


                                                2
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://www.vermontjudiciary.org/sites/default/files/documents/eo15-326.pdf

[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


                                                 3
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 unemployed.

       ¶ 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 expenses.

       ¶ 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


                                                 4
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,

¶ 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.




                                                 5
       ¶ 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 clearly unreasonable in light of the

evidence.” Taylor v. Taylor, 175 Vt. 32, 36, 819 A.2d 684, 688 (2002). With those background

principles in mind, we address wife’s specific allegations of error.

                I. Modification of the Maintenance Order and Its “Compensatory Aspect”

       ¶ 14.   Wife argues that the trial court erred when, after apparently classifying all of her

maintenance award as compensatory, it found that husband’s inability to pay the award after he

lost his job constituted a sufficient change in circumstances and reduced her spousal support to

zero. Husband argues that “[a]n obligor cannot be ordered to pay if a court finds that he lacks the

present ability to pay.” Because the trial court did not clearly determine how much of the award

was compensatory and did not analyze husband’s request for modification of the compensatory

aspect of wife’s permanent maintenance award using the proper framework for a real, substantial,

and unanticipated change of circumstances, we remand for further factual findings. Specifically,

on remand the court must make a finding to determine how much of the award was compensatory

in order to clarify whether the permanent award, including its compensatory aspect, is subject to




                                                 6
modification under the appropriate change of circumstances considerations and, if so, to what

extent.1

       ¶ 15.    The maintenance statute, 15 V.S.A. § 752, permits the family court to order two

types of maintenance: rehabilitative and permanent.2           It does not mention compensatory

maintenance, and it does not express a preference between rehabilitative and permanent

maintenance. Strauss, 160 Vt. at 339, 628 A.2d at 554. The purpose of both forms of maintenance

is to correct inequalities in the parties’ income and to equalize their standard of living, but they

play different roles in achieving that overall goal. See id. at 338, 620 A.2d at 554. In a case where

maintenance is appropriate, the court may award rehabilitative maintenance, permanent

maintenance, or a blend of the two, as the circumstances of the case warrant. Klein v. Klein, 150

Vt. 466, 476, 555 A.2d 382, 388 (1988). The maintenance statute provides a set of seven


       1
          In the order that wife appealed to this Court, the trial court noted “that the maintenance
award here was characterized as ‘compensatory.’ ” We cannot be certain that the court, in using
that language, intended to make a factual finding that the entire permanent award was
compensatory in nature. Absent a clear factual finding on that issue, we cannot make a
determination about whether and to what extent the award here is subject to modification, given
that portions of a permanent award may not be compensatory and are therefore subject to the
traditional showing for real, substantial, and unanticipated change of circumstances.
       2
           The relevant portion of the statute provides:

                 (a) In an action under this chapter, the court may order either
                spouse to make maintenance payments, either rehabilitative or
                permanent in nature, to the other spouse if it finds that the spouse
                seeking maintenance:

                        (1) lacks sufficient income, property, or both, including
                        property apportioned in accordance with section 751 of this
                        title, to provide for his or her reasonable needs; and

                        (2) is unable to support himself or herself through
                        appropriate employment at the standard of living established
                        during the civil marriage or is the custodian of a child of the
                        parties.

       15 V.S.A. § 752(a).

                                                  7
nonexhaustive factors intended to guide the exercise of the trial court’s discretion in awarding

maintenance: the financial resources of the party seeking maintenance, the property allocated to

that party, that party’s ability to meet his or her needs independently, the time and expense required

for that party to acquire sufficient training or education to enable him or her to find appropriate

employment, the standard of living established during the marriage, the duration of the marriage,

the age and physical and emotional condition of each spouse, the ability of the spouse from whom

maintenance is sought to meet his or her reasonable needs while meeting those of the spouse

seeking maintenance, and inflation. 15 V.S.A. § 752(b).

       ¶ 16.   Rehabilitative maintenance is intended to assist the recipient spouse in becoming

self-supporting. Gulian v. Gulian, 173 Vt. 157, 163, 790 A.2d 1116, 1121 (2001). As a result,

rehabilitative maintenance—unlike permanent maintenance—is transitional in nature and its

hallmark is its “definite time duration.” Cleverly v. Cleverly, 147 Vt. 154, 159, 513 A.2d 612, 615

(1986) (when court orders rehabilitative maintenance, it “must impose a time limit”). The most

critical factors in a court’s decision to order rehabilitative maintenance are “the length of the

marriage, the role the [recipient spouse] played during the marriage, and the income the [recipient

spouse] is likely to achieve in relation to the standard of living set in the marriage.” Strauss, 160

Vt. at 340, 628 A.2d at 554. We afford great deference to the trial court concerning the duration

and amount of rehabilitative maintenance and will affirm a trial court’s order for rehabilitative

maintenance unless there is no reasonable basis to support it. See id.

       ¶ 17.   However, we have long recognized that in some cases rehabilitative maintenance

alone may be insufficient to accomplish the goal of enabling the recipient spouse to support him

or herself at the standard of living established during the marriage. See, e.g., Klein, 150 Vt. at

476, 555 A.2d at 388. For example, in Klein, we noted that the trial court’s findings would have

supported either rehabilitative or permanent maintenance or a mix of both. Id. However, we also


                                                  8
acknowledged that in that case, rehabilitative maintenance alone would have been insufficient to

meet the goals of maintenance unless the court made a finding on remand that the recipient spouse,

who made a “total commitment” to raising the couple’s children and as a result failed to develop

skills necessary for entry into the working world, would have been able to become self-sufficient

at the standard of living established during the marriage. Id. Thus, in cases where the evidence

does not support a finding that the recipient of rehabilitative maintenance will be able to support

him or herself at the standard of living established during the marriage, an award of permanent

maintenance may be appropriate. See id.

       ¶ 18.   Our precedents have provided only limited guidance for trial courts on how to

evaluate a request for permanent maintenance or how to decide when one spouse will not be able

to become self-sufficient. In order to clarify the distinctions between the two kinds of maintenance

and when each is appropriate, it is necessary to begin with an overview of our previous decisions

about permanent maintenance, starting with one of this Court’s earliest published cases to describe

the specific role of permanent maintenance. In that case, Justis v. Rist,3 we recognized that

permanent maintenance traditionally is “an indefinite award that ends with the death of either

spouse or the remarriage of the recipient spouse.” 159 Vt. 240, 242, 617 A.2d 148, 149 (1992).

In adopting the rule that 15 V.S.A. § 752 was not intended to override the common law rule that

the death of either party terminates a maintenance award, we reasoned that “because maintenance

compensates for the support from future income that would have been available but for the divorce,

the right to it ends along with the income-earning capacity of the obligor.” Id. at 243, 617 A.2d at

149.



       3
           We describe Rist only to provide context for the evolution of our decisions concerning
permanent maintenance. We recognize that the issue of remarriage of the recipient spouse was
not at issue in Rist.


                                                 9
       ¶ 19.     We further clarified the role of permanent maintenance in Strauss, 160 Vt. 335, 628

A.2d 552, where we set forth guidelines for determining when permanent maintenance is required

as a matter of law. Specifically, we emphasized that the most critical factors in a trial court’s

decision to award permanent maintenance are “the length of the marriage, the role the [recipient

spouse] played during the marriage, and the income the [recipient spouse] is likely to achieve in

relation to the standard of living set in the marriage.” Id. at 340, 628 A.2d at 534. Moreover, we

explained that a permanent maintenance award, unlike a rehabilitative maintenance award, is not

time-limited.4    See id. at 339-40, 628 A.2d at 554 (comparing cases where rehabilitative

maintenance and permanent maintenance were appropriate and explaining that rehabilitative

maintenance awards are characterized by their limited duration); Rist, 159 Vt. at 243, 617 A.2d at

149 (explaining that word “permanent” in § 752 does not mean never-ending, since right to

permanent maintenance ends when either spouse dies or recipient spouse remarries).

       ¶ 20.     We then held that the trial court abused its discretion when it failed to award any

permanent maintenance to one of the spouses, who was forty-eight years old at the time of divorce,

who had raised the parties’ two children and managed the household during their twenty-eight-

year marriage, and who—because of her gender, age, and lack of work experience—had limited

employment prospects.       Id. at 341-42, 628 A.2d at 555-56.        We reasoned that although

rehabilitative maintenance was essential to help the recipient spouse become self-sufficient, “[i]n

a long-term marriage, maintenance also serves to compensate a homemaker for contributions to


       4
           The parties agreed that the permanent maintenance award would terminate on the date
of wife’s “full retirement and commencement of drawing pension payments and any social security
to which she may be entitled.” As a result, we need not decide here whether a trial court could
ever order permanent maintenance that is not indefinite without an agreement from the parties.
But see Rist, 159 Vt. at 242, 617 A.2d at 149 (explaining that permanent maintenance is “an
indefinite award that ends with the death of either spouse or the remarriage of the recipient
spouse”); Miller v. Miller, 2005 VT 12, ¶¶ 17, 20, 179 Vt. 147, 892 A.2d 175 (clarifying that
remarriage is grounds for modification only if remarriage substantially reduces need for
maintenance).

                                                 10
family well-being not otherwise recognized in the property distribution.” Id. at 338-39, 628 A.2d

at 554. That aspect of permanent maintenance, we explained, “is more than a ‘rehabilitative

function.’ ” Id. at 339, 628 A.2d at 554.

       ¶ 21.   That same year, in Delozier v. Delozier, we took up the question of the weight trial

courts should afford to the various factors we identified in Strauss, and specifically, to the

importance of the length of the marriage. 161 Vt. 377, 640 A.2d 55 (1994). We explained that in

a trial court’s decision on a request for permanent maintenance, “[t]he length of the marriage is

particularly important not only because it is often a major factor creating the disparity in the

parties’ earning capacities,” but also because “regardless of the spouses’ respective roles” the

length of the marriage “provides a benchmark for determining reasonable needs.” Id. at 382, 640

A.2d at 58. In other words, the length of the marriage is important because it impacts the trial

court’s “measurement of reasonable needs and the length of time the maintenance award is

required to maintain the recipient spouse at that level.” Id. at 383, 640 A.2d at 58.

       ¶ 22.   Thus, it is clear from our precedents that permanent maintenance is appropriate in

long-term marriages where the court finds that one spouse will not be able to become self-sufficient

and is aimed at equalizing the parties’ standards of living in reference to the standard of living

established during the marriage. See Gravel v. Gravel, 2009 VT 77, ¶ 24, 186 Vt. 250, 980 A.2d

242. Rehabilitative maintenance, in comparison, is appropriate when the court finds that one

spouse requires time-limited support to enable him or her to become self-sufficient. See id. ¶ 20.

Both types of maintenance are modifiable when the factors that justified the original imposition of

the award have dissipated or changed, and both have two components: duration and amount. See

Chaker v. Chaker, 155 Vt. 20, 25, 581 A.2d 737, 740 (1990). However, our case law has not yet

answered the central question at issue in this appeal: does a trial court have the discretion to reduce

to zero a permanent maintenance award that appears to be purely compensatory in nature?


                                                  11
       ¶ 23.   Our analysis begins with the concept of “compensatory maintenance.” It is clear

from our precedents that compensatory maintenance is not an independent, judicially created

category of maintenance but is instead a component of many permanent maintenance awards that

is appropriate primarily in long-term marriages.5 Cf. Stickney, 170 Vt. at 549, 742 A.2d at 1232

(“[I]n a long-term marriage, maintenance awards serve to compensate the homemaker for

contributions to family well-being not otherwise recognized in the property distribution.”); Klein,

150 Vt. at 474, 555 A.2d at 387 (explaining that one purpose of permanent maintenance is to

recompense for contributions to family’s wellbeing that were not otherwise accounted for and

emphasizing that most important factor is length of marriage). We have never clearly defined

compensatory maintenance, but we have characterized the “compensatory aspect” of permanent

maintenance as

               reflect[ing] the reality that when one spouse stays home and raises
               the children, not only does that spouse lose future earning capacity
               by not being employed or by being underemployed subject to the
               needs of the family, but that spouse increases the future earning
               capacity of the working spouse, who, while enjoying family life, is
               free to devote productive time to career enhancement.




       5
          We first used the term “compensatory maintenance” in Stickney, 170 Vt. at 549, 742 A.
2d at 1231-32. Our case law initially recognized that compensation was one of the purposes of a
maintenance award. Klein, 150 Vt. at 474, 555 A.2d at 387. Thus, while we have occasionally
referred to an award of maintenance based in whole or part upon the recipient spouse’s household
contributions as “compensatory maintenance,” see, e.g., Meyncke v. Meyncke, 2009 VT 84, ¶ 13,
186 Vt. 571, 980 A.2d 799 (mem.), in reality when there is a compensatory component to a
maintenance award, it is properly characterized as an aspect of permanent maintenance rather than
an independent category of maintenance. When a court considers whether to award permanent
maintenance with a compensatory aspect, the most important factor continues to be the length of
the marriage. See Klein, 150 Vt. at 474, 555 A.2d at 387. That factor, however, should not be
outcome-determinative, and there may be rare cases where a permanent maintenance award with
a compensatory aspect would be appropriate even following the dissolution of a shorter-term
marriage.


                                                12
Delozier, 161 Vt. at 382, 640 A.2d at 57-58.6 The theory behind the compensatory aspect of

maintenance, then, is the recognition that some marriages can include circumstances analogous to

a contractual bargain: the obligor spouse agrees to contribute to the marriage and family by

pursuing a career outside the home and bringing the fruits of that career to the family, while the

recipient spouse agrees to contribute to the marriage by foregoing possible career pursuits and

devoting that time and energy to caring for or supporting the home and family, enabling the other

spouse to achieve the potential for greater success in the workplace. A permanent award with a

compensatory component is an attempt to continue to enforce that bargain because the obligor

spouse, through the growth of a career, continues to benefit from the marital bargain after the

marriage has dissolved. So long as the obligor spouse is reasonably able to capitalize on the

bargain, compensatory maintenance may be justified to give both parties the benefit of the marital

arrangement.

       ¶ 24.   For example, where one spouse made contributions to the family unit—such as

child care or homemaking—that made it possible for the other spouse to achieve greater success

in the working world—say as a doctor—those contributions survive the dissolution of the marriage

and, unlike property, cannot be divided between the spouses. The recipient spouse’s household

contributions during the obligor’s spouse’s medical school, internships, and early years of practice

are not a guarantee of uninterrupted success as a doctor. But so long as the doctor retains the

opportunity for increased earnings—an opportunity enabled, in part, by the homemaker’s marital

contributions—the doctor continues to benefit from those contributions.

       ¶ 25.   Keeping with that understanding of compensatory awards, we have recognized that

“[i]n determining the extent of the compensatory component of a maintenance award, the family


       6
          Another common scenario giving rise to a compensatory maintenance claim is where
one spouse works to support the family while the other spouse is in school earning a specialized
degree, such as a medical degree. See, e.g. Stickney, 170 Vt. at 549, 742 A.2d at 1232.

                                                13
court should give particular consideration to the role of the recipient spouse during the marriage

and to the length of the marriage.” Id. (citation omitted). Thus, while all maintenance with a

compensatory purpose is permanent maintenance, not all permanent maintenance is necessarily

compensatory; it is possible that a recipient spouse could establish a need for permanent

maintenance based on the length of the marriage and the inability of that spouse to obtain skills

and experience to meet reasonable needs, even if the spouse offered no evidence of having made

the kinds of household contributions or personal sacrifice that would justify a compensatory

component to the permanent award.

       ¶ 26.   Several consequences flow from this clarification of the compensatory aspect of

permanent maintenance. First, all maintenance, whether rehabilitative or permanent, is subject to

modification based upon a showing of real, substantial, and unanticipated change of circumstances.

15 V.S.A. § 758 (“On motion of either party and due notice, and upon a showing of a real,

substantial, and unanticipated change of circumstances, the court may from time to time annul,

vary or modify a judgment relative to maintenance . . . ”). And because there are no fixed

standards for determining what meets this threshold, courts must evaluate any alleged change in

circumstances in light of the nature of the original maintenance award. See Miller, 2005 VT 122,

¶¶ 15-16. In other words, where the original maintenance award was permanent in nature and was

intended, at least in definable part, to compensate for a recipient spouse’s nonmonetary

contributions that benefitted the obligor spouse beyond the marriage, the obligor spouse must make

a showing that he or she is no longer able to benefit from the recipient spouse’s contributions

because of a change in circumstances in order to justify a downward modification of the

compensatory aspect of the permanent award.

       ¶ 27.   Second, a change in financial circumstances—absent a showing that the change is

the product of unanticipated, external factors—will rarely, if ever, support a downward


                                               14
modification to zero of the compensatory portion, if any, of a permanent award. Cf. id. ¶ 20

(reasoning that financial improvement resulting from remarriage of former spouse “cannot alone

be changed circumstances” sufficient to modify maintenance award because “[m]aintenance

recipients should normally retain the benefit of actions they take to live more economically”);

Meyncke, 2009 VT 84, ¶ 13 (noting that “there is a limit to the extent that changes in financial

circumstances can support downward modification of a compensatory maintenance award” and

that “there is a limit to the extent that a reduction in the recipient spouse’s expenses can justify

downward modification”). This conclusion is consistent with our prior decisions, which have

made clear that an obligor’s inability to pay is only a valid consideration if the trial court finds that

the obligor did not voluntarily render him or herself unable to pay. See Wardwell (Clapp) v. Clapp,

168 Vt. 592, 594-95, 720 A.2d 862, 864 (1998) (mem.) (collecting cases and concluding that

“inquiry necessarily focuses on—and indeed begins with—the obligor’s subjective intent in

making the change”). Thus, for example, the obligor doctor who suddenly becomes unable to

practice medicine because of an unexpected medical condition that removes her vision or the

obligor machinist whose career is suddenly terminated with the advent of a new technology that

moots his specialized work could be entitled to a downward modification. On the other hand, the

obligor doctor who is fired because she is perpetually late would not be entitled to a downward

modification. Cf. Ellis v. Ellis, 262 N.W.2d 265, 268 (Iowa 1978) (“When a person’s inability to

pay alimony or child support is self-inflicted or voluntary, it will not constitute a ground for

reduction of future payments.”); Wheeler v. Wheeler, 548 N.W.2d 27, 31 (N.D. 1996) (declining

to downwardly modify spousal obligation where obligor voluntarily took early retirement

ostensibly to cope with health problems because obligor “voluntarily retired long before” learning

of health and, given obligor’s age, health problems were foreseeable); Grahovac v. Grahovac, 680

N.W.2d 616, 622 (Neb. Ct. App. 2004) (declining to downwardly modify spousal obligation where


                                                   15
obligor was “fired for excessive drinking” and where court classified obligor’s reduction in income

as “waste and dissipation of one’s talents and abilities”). If the potential benefit to the obligor

remains, but the obligor has lost his or her current ability to pay the compensatory portion of the

award, that portion of the maintenance debt accrues. In addition, it is important to note that while

the compensatory aspect of a permanent maintenance award may not have a defined termination

date, the compensatory aspect of the initial award should reflect, to the extent possible, the actual

bargain the parties intended.

       ¶ 28.   A related analysis applies to the modification of the compensatory aspect of

permanent maintenance. While a real, substantial, and unexpected change of circumstances is the

threshold test for modification of all aspects of maintenance, what is necessary to satisfy that test

concerning the compensatory component of a permanent maintenance award is more stringent and

requires showing more than just an unexpected change in financial circumstances.                 The

compensatory portion of a permanent maintenance award is not subject to downward modification

unless the trial court makes an additional affirmative finding that an unexpected change has

rendered the obligor spouse no longer able to potentially reap the benefits of the recipient spouse’s

contributions to the marriage which triggered the compensatory portion of the permanent award.

       ¶ 29.   Here, when the trial court crafted the parties’ original maintenance award, it

indicated that the award included a compensatory aspect because “[husband] wouldn’t be doing as

well as he is doing unless [wife] was the primary caregiver for the children.” The court did not,

however, explicitly indicate what percentage of the permanent award was intended to compensate

wife for her contributions to the marriage. Nevertheless, when the court later considered husband’s

motion to modify the maintenance award based on changed financial circumstances, it seemed to

reclassify the entire permanent award as compensatory and nonetheless reduced it to zero. The

court’s determination that a change in the obligor spouse’s financial circumstances alone was a


                                                 16
sufficient basis to establish a change in circumstances for the compensatory aspect of the

maintenance award was error. The court did not take into account the bargain that the parties

reached when they married and decided that wife would forego then-available career opportunities

in order to raise the couple’s children. Husband’s inability to pay is relevant to the compensatory

aspect of his spousal maintenance obligation only if he can make an affirmative showing that he

can no longer reap the benefits of that marital bargain because he is unable to work or because he

has reached a reasonable age of retirement such that his income is no longer the result of that

bargain. Thus, on remand, the court may modify the compensatory aspect of the award only upon

an affirmative finding that husband’s inability to pay was the product of an unexpected change

that rendered him unable to reap the benefits of wife’s contributions to the marriage. If husband

retains the benefit of his aspect of the marital bargain, increased earning potential in part related

to wife’s contributions for which she is receiving a compensatory component of permanent

maintenance, then wife is entitled to her portion of the bargain. Thus, husband’s obligation for the

compensatory payment remains and his current inability to pay it means a debt to wife accrues for

the unpaid portion of maintenance which is compensatory in nature.

       ¶ 30.   Because the necessary showing for changed circumstances for the compensatory

portion of permanent maintenance is more exacting, when a court orders permanent maintenance

and a portion of the permanent award is intended to compensate the recipient spouse for

contributions made during marriage, the court should identify what portion of the permanent award

is made on that basis. Here, the court was unclear about what portion of the maintenance award

was compensatory. And because the court granted husband’s motion to modify the compensatory

award based solely on the its finding that husband had experienced a change in financial

circumstances that rendered him unable to pay the award, remand is necessary. Some portion of

the award may be modifiable based upon change of financial circumstances alone, but our case


                                                 17
law makes it clear that where there is a compensatory aspect of a maintenance award more than a

change in financial circumstances is necessary to reduce the award to zero.

                      II. Disclosure of Financial Information from Current Spouse

       ¶ 31.   Wife argues that the trial court erred when, in the course of granting husband’s

motion for downward modification of his maintenance obligation, it declined to account for

husband’s current wife’s subsidy of his living expenses. We agree.

       ¶ 32.   In an initial order setting the amount of maintenance, a court must consider, among

other things, “the financial resources of the party seeking maintenance,” the standard of living

established during the marriage, and “the ability of the spouse from whom maintenance is sought

to meet his or her reasonable needs while meeting those of the spouse seeking maintenance.” 15

V.S.A. § 752(b). The court has discretion to modify the original award “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, 2010

VT 94, ¶ 8. This Court evaluates whether a change is “substantial” by reference to the context of

surrounding circumstances, id. ¶¶ 15-16, and substantial and unanticipated changes to the obligor

spouse’s available income can be a change in circumstances sufficient to warrant modification.

Taylor, 175 Vt. at 38, 819 A.2d at 689.

       ¶ 33.   Additionally, when an obligor spouse remarries, the court may consider that

spouse’s present financial obligations to determine their ability to meet reasonable needs, but the

court “may not impute the income of the new spouse to the obligor for the purposes of calculating

the amount of the obligor’s income that is available to pay maintenance.” Mayville, 2010 VT 94,

¶ 16. Put differently, “the court may consider the effect that the new spouse’s income has on the

needs and expenses of the obligor.” Id. This rule of law runs parallel to our rulings in cases where

the recipient spouse’s remarriage results in decreased expenses, which we have held may be a


                                                18
sufficient ground to warrant a downward modification to the obligor’s maintenance payment.7 Id.;

see also Miller, 2005 VT 122, ¶¶ 17, 20 (holding that remarriage of recipient spouse is grounds for

modification only if remarriage substantially reduces need for maintenance while recognizing that

“sharing of household expenses may produce some measure of financial improvement because

some of those expenses are not directly proportional to the number of household occupants”).

       ¶ 34.   The facts of our decision in Mayville are instructive. There, the court’s final

divorce order adopted an agreement between the parties under which one spouse was to pay the

other a set sum of money until the obligor turned sixty-five years old. 2010 VT 94, ¶ 2. The

obligor eventually remarried and when he unexpectedly lost his job by no fault of his own, this

Court noted the trial court’s finding that he “made little effort to seek new employment,” in part

because his new spouse contributed to a reduction in his household expenses. Id. ¶¶3-4. The

obligor filed a motion to terminate maintenance payments, and the court reduced them but did not

terminate the maintenance order. Id. ¶ 6. On appeal, the obligor argued that the trial court erred

by, among other things, considering the earnings of his new spouse in setting the level of the

modified maintenance payments. Id. ¶ 16. We disagreed and reaffirmed our prior decisions

establishing that “a trial court may properly consider the earnings of a new spouse to determine

‘the ability of the spouse from whom maintenance is sought to meet his or her reasonable needs




       7
           We acknowledge that in both circumstances—where the recipient’s remarriage reduces
household expenses or where the obligor’s remarriage increases household income or decreases
household expenses—a rule that permits the trial court to consider a new spouse’s income could
invite abuse by an ex-spouse seeking to constantly review a new spouse’s finances. However, the
potential for that abuse is mitigated by the fact that the new spouse’s income is relevant only to a
determination of reasonable needs. Thus, before the court examines the new spouse’s income, it
must find that there has been an unanticipated change of circumstances that triggers further inquiry
into the relative financial positions of the former spouses. In other words, only where the spouse
seeking modification meets the high burden of showing changed circumstances will the court
examine a new spouse’s income, and the difficulty of meeting that high standard constrains the
potential for abuse.

                                                19
while meeting those of the spouse seeking maintenance,’ ” so long as the court does not impute

the new spouse’s salary to the obligor. Id. (quoting 15 V.S.A. § 752(b)(6)).

       ¶ 35.   The same is true in this case. Here, as in Mayville, husband sought to modify his

maintenance obligation on the basis that his unexpected loss of employment constituted a real,

substantial, and unanticipated change in his financial situation. Like in Mayville, the surrounding

circumstances include husband’s remarriage and the impact remarriage had on his financial

circumstances. Thus, we agree with husband that it would have been improper for the trial court

to “impute the current wife’s salary to husband or require the current wife to pay part of her

husband’s maintenance obligations.” Mayville, 2010 VT 94, ¶ 16. Nevertheless, we agree with

wife that the trial court here erred when it considered the expenses that husband has incurred as a

result of his remarriage but concluded that it could not also consider the financial assistance his

new wife has provided insofar as that assistance impacts his ability to meet his reasonable needs

while also meeting wife’s reasonable needs.

       ¶ 36.   Specifically, the court found that husband and his current wife had an agreement

under which they split household expenses evenly. Husband had been unable to pay his share,

forcing his current wife to pay a disproportionate amount of their household bills relative to their

agreement. The trial court found this agreement created “an ever deepening obligation” between

husband and his current wife. As a result of this agreement, the trial court, over wife’s objection,

confined testimony concerning the new spouse’s income only to the question of whether she had

the ability to pay her agreed-upon share of household expenses. It did not examine current wife’s

ability to make up the deficit created by defendant’s inability to pay his “share.” This was error.

       ¶ 37.   The evidence showed husband and his new spouse lived together and incurred joint

household expenses. Consequently, any agreement between them concerning responsibility for

those expenses within their household was merely that: an agreement between them. Any


                                                20
allocation of responsibility for a mutual household expense is of no moment to the person sending

the bill. The grocery store, for example, does not allow the shopper to pay only half of the bill

because the parties consuming the groceries have allocated responsibility for the bill between them

in that proportion. Here, the parties were married, lived together, and shared household expenses.

Regardless of any internal agreement on household expense allocation, the wife’s income was

potentially available to meet the household expenses and the trial court here found that her income

was being used to meet those expenses beyond what she had agreed to pay. Consistent with

Mayville, the court should have taken into account husband’s new wife’s income to the extent that

it affected his expenses and ability to support himself while paying maintenance. 2010 VT 94,

¶ 16. To hold otherwise would allow an obligor spouse who remarries to prevent or shape inquiry

into the successor spouse’s income based solely on a nonbinding, extralegal agreement between

the new spouse and the obligor spouse, and that would, in turn, allow the obligor to preference

debt to a new spouse over a legally binding obligation to the recipient spouse. On remand, the

court should allow wife to discover husband’s new wife’s income, not to impute it to husband’s

maintenance obligation, but for the purpose of determining his overall financial situation.

                             III. Maintenance Offset Against Child Support

       ¶ 38.   In light of the remand, one further issue remains for our consideration. When the

trial court reduced husband’s maintenance obligation to zero, it made the order retroactive to

October 29, 2014. The result was that, under the court’s order, husband had overpaid at least

$8100 in spousal support. The court’s order allowed husband to offset this overpayment against

an arrearage he owed to wife for unpaid spousal maintenance prior to October 2014 and also

against any unpaid child support arrearages. Although this issue is not certain to arise on remand,

we reach it because it is possible that the court will find that husband has overpaid maintenance

and will again enter an order allowing an offset against unpaid child support arrearage. To do so


                                                21
would be error, and that is no less the case where, as here, any arrearage in child support payments

would be for children who have since reached adulthood. To the extent Meyncke v. Meyncke,

2013 VT 82, 194 Vt. 556, 82 A.3d 585 (2013) (Meyncke II) suggests otherwise, we overrule it.8

       ¶ 39.   While the spousal maintenance and child support obligations in this case were both

payments that husband owed to wife, the payments served entirely different purposes, were

governed by different statutory regimes, and were not interchangeable. Spousal maintenance is

intended to provide for the recipient spouse’s own needs, not the needs of the parties’ children,

and a maintenance order therefore takes into account only the circumstances relevant to the obligor

and recipient. Gulian v. Gulian, 173 Vt. 157, 163, 790 A.2d 1116, 1120-21 (2001). Child support,

however, “does not involve only the parent required to make such payments and the custodial

parent entitled to receive them.” Lyon v. Lyon, 143 Vt. 458, 462, 466 A.2d 1186, 1189 (1983).

Rather, child support payments “are made for the support, maintenance and education of the minor

children of the parties.    The rights of such children are to be served and protected.”           Id.

Specifically, while spousal maintenance is aimed at equalizing the parties’ standard of living, see

infra, Part I, child support is “based on the concept that children should receive the same proportion

of parental income after separation or divorce of their parents as they would receive if their parents

were living together in one household.” 15 V.S.A. § 654.


       8
          In Meyncke II, a wife owed a husband child support arrears, while the husband owed the
wife maintenance arrears. 2013 VT 82 ¶ 46. The wife argued on appeal that the trial court erred
when it declined to rule on her request to offset her child support arrears against the husband’s
spousal maintenance arrears. Id. Without explanation and with only a citation to a decision from
an intermediate appellate court in Ohio, we explained that because “wife owes the child support
to husband rather than the state” and because “the parties’ child has reached the age of majority,
we see no reason for the superior court on remand not to make an equitable offset.” Id. (citing
Schumann v. Schumann, 2010-Ohio-5472, ¶ 47, 944 N.E.2d 705 (Ct. App.)). For the reasons
explained in Part III of this decision, we conclude now that there is good reason why trial courts
must not make equitable offsets when one of the debts owed is child support arrearages, even as
we acknowledge that the trial court may have discretion to permit offsets of other forms of debt
arising out of the dissolution of a marriage.


                                                 22
       ¶ 40.   We have recognized the special nature of child support in several prior decisions.

See, e.g., Gulain, 173 Vt. at 164, 790 A.2d at 1121 (describing complex federal-state partnership

created to enforce child support orders); Lyon, 143 Vt. at 462, 466 A.2d at 1189 (explaining that

in child support cases, children’s “welfare is paramount”). Our cases have sought to protect

children against loss of child support as a result of action or inaction by the recipient parent, and a

failure of the recipient spouse to seek enforcement of a child support order or to reduce arrearages

in a timely fashion therefore cannot result in a waiver of the child support payment. Lyon, 143 Vt.

at 462, 466 A.2d at 1188-89. Similarly, we do not permit parents to waive arrearages of child

support on behalf of the child, St. Hilaire v. DeBlois, 168 Vt. 445, 448, 721 A.2d 133, 136 (1998),

nor do we permit them to waive an initial child support order. Bergman v. Marker, 2007 VT 139,

¶ 13, 183 Vt. 68, 944 A.2d 265 (“[T]he child’s right to child support cannot be waived by a parent’s

action or inaction.”). Parties to a divorce cannot, by stipulation, withdraw the interests of their

children, who are not parties to the contract, from the continuing jurisdiction of the court. White

v. White, 141 Vt. 499, 503, 450 A.2d 1109, 1110 (1982). These decisions underscore the

paramount importance that our society places upon the support and care of children through child

support obligations, a policy codified in Vermont in 15 V.S.A. § 650.

       ¶ 41.   It is also worth noting the differences in the circumstances and manner in which the

statutory schemes governing child support and spousal maintenance guide the trial court’s

discretion. Child support is a necessary element of every divorce or separation with children,

reflecting the strong “public policy that parents have the responsibility” to care for their children.

15 V.S.A. § 650. The Legislature saw fit to give that public policy practical force through the use

of child support guidelines. Id. § 654. The total support obligation is presumed to be the amount

of child support needed unless the court finds the application of the guidelines to be unfair. Id.

§ 659. Maintenance, however, is calculated in the court’s discretion by applying statutory factors


                                                  23
if the court finds any entitlement to maintenance has been established. And unlike in spousal

support cases, a third party other than the parents of a child who is the subject of a support order

may seek or enforce a child support obligation. Id. § 658(b) (“A request for support may be made

by either parent, a guardian, or the Department for Children and Families or the Department of

Vermont Health Access, if a party in interest.”).

       ¶ 42.   There is no reason to assume that the character of a child support obligation that is

in arrears changes when the target children become adults; a delay in child support payment does

not transform its purpose or obviate the need to make it for the benefit of the children, not the ex-

spouse. On remand, the court must make a finding of whether wife has received more for her

support than husband was obligated to pay. Regardless of that determination, the children have

received less for their support, through payments to the recipient spouse, than they were entitled.

Allowing monies paid to wife for her support to be offset against monies to be paid to her on behalf

of the parties’ children for their support ignores the vastly different purpose of the payments and

wrongly focuses only on the commonality of the initial recipient. See Steffens v. Peterson, 503

N.W.2d 254, 260 (S.D. 1993) (noting that “child support and alimony are distinct concepts with

different intended beneficiaries” and concluding that “[r]educing child support payments to

compensate for an overpayment of alimony equates to ‘robbing Peter to pay Paul’ ”). Because

they serve different purposes and are intended to benefit different people, a court may not offset a

maintenance overpayment against either past or future child support obligations.

       Reversed and remanded.

                                                FOR THE COURT:



                                                Associate Justice




                                                 24
