SCOV Legislation Weblog: Making use of for a change in alimony after dropping a job

Editor’s Note: This article from the SCOV Law Blog is written by Chris Larson.

Atherton vs. Atherton, 2019 VT 15

[I]write about this case from the speakeasy cafe in Rutland and have a plate of almond cookies. Other than that, this is a really good cookie and a fab cafe. Take a look when you are in our trade fair city.

This, by the way, relates to our discussion of this case, as fatty almonds are baked into these cookies, with the pointed ends sticking out of the sugared tips. And the rule of the case concerns the information “burned into” spousal support decisions. I cannot acknowledge this tormented metaphor – the Supreme Court made it up, as you are about to read.

In this case, the question is whether you can cut your maintenance payments if you lose your job.

In this case, the husband applied to the family court to reduce his maintenance obligation for the spouse after he lost his job. The court refused to do so, but the Supreme Court overturned that decision.

The husband was an appraiser for an insurance company and made about $ 70,000 a year.

The husband and wife were married for 20 years. When they divorced, the court ordered the husband to pay the wife $ 1,500 a month for 10 years. That’s $ 180,000. After these payments, he would continue to pay a smaller amount depending on whether he retired.

While the divorce was pending, but before the final order was made, the husband received a written warning from his manager that sounded rather serious. It warned that he could be fired. Shortly before the divorce proceedings ended with an injunction, the husband took a leave of absence, also because of the anxiety and depression caused by the divorce. After the divorce became final, he returned to work briefly but was fired after less than a month.

The husband requested that his spouse’s support be lowered while he was looking for new work. Mrs. opposed this request.

For the court of first instance, the question arose whether the termination of the man’s employment relationship was foreseeable. Because the standard for changing spousal support is a “real, substantial and unexpected change in circumstances”. There is no doubt that losing his career job was a real and significant change – the only question was whether it was foreseeable. Oddly enough, if the husband knew he was going to be fired, he wouldn’t be able to change the order; if he did not foresee it, all was well.

The court denied the man’s motion, which meant he would continue to pay $ 1,500 a month even though he was out of work. The rationale was that by the time the husband filed the clause that formed the basis of the verdict, he knew that he had been warned that he might be released.

Did the man’s knowledge that he could be fired mean that he could not cut his alimony if he was fired?

The higher court says no and sends the case back to the court of first instance.

The Supreme Court is rehearsing an opinion story on the question of when a dismissal is foreseeable. It notes cases where dismissal for misconduct committed years prior to the divorce was not a foreseeable cause. A case is discussed where the paying spouse was charged with a crime at the time of the divorce but was subsequently convicted and also found this loss of income to be unpredictable. Finally, the facts of a case where the payer’s spouse remarried, which led to an increase in expenses, are checked. The court also overturned this case, stating that remarriage could be “reasonable anticipation” and that it was also unpredictable.

The Supreme Court derives the rule from these cases that a change is unforeseen if it deviates materially from the assumptions made in the maintenance decision. The question is whether the change in circumstances was “baked into” the care order or not. I’m not kidding about it – that is the rule formulated in paragraph 18 of Atherton.

And with that I get another round of almond cookies.

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