Atherton v. Atherton
208 A.3d 603
| Vt. | 2019Background
- Mark Atherton and Holly Atherton divorced; final decree (stipulation) entered June 27, 2017 required Mark to pay spousal maintenance ($1,500/mo with step-downs tied to retirement/timeline).
- Mark was employed by a national insurance company earning about $5,895/month before and during the divorce negotiations; he had received a final written warning in June 2016 and took a paid medical leave in April 2017 for anxiety/depression related to the divorce.
- Mark was terminated by his employer on August 22, 2017 (about one month after the final order); he then filed a motion (Sept. 13, 2017) to modify maintenance, seeking a temporary reduction while he sought new employment.
- The trial court denied the modification, reasoning that Mark knew about the warning and leave and that termination was a reasonable possibility when the stipulation was entered, so the change was not "unanticipated."
- On appeal, the Vermont Supreme Court reversed, holding the trial court applied the wrong standard for "unanticipated" change under 15 V.S.A. § 758 and remanded for further proceedings.
Issues
| Issue | Atherton's Argument | Atherton (Wife)'s Argument | Held |
|---|---|---|---|
| Whether termination was a "real, substantial, and unanticipated" change under 15 V.S.A. § 758 | Termination was unanticipated and thus warrants modification; he could not afford maintenance after job loss | Termination was not unanticipated—warning and leave made it foreseeable; nondisclosure precludes relief | Reversed: trial court used wrong test; whether a development was "unanticipated" depends on whether it was factored into the maintenance assumptions, not mere foreseeability |
| Whether knowledge of a risk of job loss (warning/leave) bars modification | Prior warnings/leave did not mean loss was assumed in the order; actual termination departs from assumptions | Knowledge made termination foreseeable and therefore not a basis for modification | Held for Atherton: foreseeability alone is insufficient; must assess whether the specific risk was incorporated into the maintenance decision |
| Whether nondisclosure of the warning/leave constituted fraud barring relief | Nondisclosure does not change whether termination was unanticipated | Wife argued nondisclosure should deny relief or be treated as fraud | Court rejected treating nondisclosure of a warning/leave as fraud here and said nondisclosure did not affect outcome |
| Standard trial courts must apply when assessing "unanticipated" change | N/A (issue is applicable to standard) | N/A | Court clarified that the right standard asks whether subsequent developments "substantially depart" from assumptions baked into the maintenance order—not whether the event was merely reasonably possible |
Key Cases Cited
- Shaw v. Shaw, 648 A.2d 836 (Vt. 1994) (termination for prior wrongdoing was not "anticipated" where there was no evidence parties believed job loss would occur when order entered)
- Herring v. Herring, 24 A.3d 574 (Vt. 2011) (pending criminal charges did not make subsequent incarceration an anticipated change; court must assess whether condition was considered in original order)
- Zink v. Zink, 147 A.3d 75 (Vt. 2016) (distinguishes foreseeability from being factored into the maintenance assumptions; modification requires a departure from assumptions)
- Golden v. Cooper-Ellis, 924 A.2d 19 (Vt. 2007) (burden on moving party to show a real, substantial, and unanticipated change)