Herring v. Herring, Jr.
190 Vt. 19
| Vt. | 2011Background
- Divorced parties in 2008; husband ordered to pay $1,000/month permanent spousal maintenance; order to continue until death or 65.
- Husband later convicted of sexual assault and lewd conduct involving their daughter; sentenced to 35 years to life and incarcerated.
- After divorce, husband paid six months of maintenance; then stopped; arrearages paid from escrow of sale proceeds; no remaining assets or income.
- Wife moved to enforce maintenance; husband moved to modify; family court denied modification but enforced maintenance, leading to this appeal.
- Court must determine if incarceration constitutes an unanticipated change in circumstances under 15 V.S.A. § 758; Court concludes incarceration was unanticipated.
- Husband’s conviction and incarceration were not fully contemplated when the original maintenance order was issued; thus, modification based on unanticipated change is warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether incarceration constitutes an unanticipated change of circumstances | Herring; incarceration not anticipated at time of divorce | Herring; incarceration anticipated due to crimes and potential retrial | Yes, incarceration deemed unanticipated and modifiable |
| Whether voluntary criminal conduct can foreclose modification due to incarceration | Herring argues incarceration was caused by pre-divorce acts not fully anticipated | Herring asserts voluntary conduct may preclude modification only if voluntary termination of employment | No; incarceration due to pre-divorce acts can be unanticipated and justify modification |
| Whether Shaw v. Shaw supports denying modification | Herring relies on Shaw to show non-anticipation | Herring distinguishes facts from Shaw | Shaw supports that if not fully contemplated, incarceration may be unanticipated; reversal appropriate |
| Policy consideration for legislative action | Maintenance should potentially continue despite incarceration | Policy decisions belong to Legislature | Court notes policy concerns and remands for further proceedings consistent with ruling |
Key Cases Cited
- Shaw v. Shaw, 162 Vt. 338 (1994) (recognizes that wrongdoing resulting in diminished income may bar modification, but incarceration not always anticipated when divorce concludes)
- Golden v. Cooper-Ellis, 181 Vt. 359 (2007) (unanticipated change requires substantial discretion review; threshold is factual)
- DeKoeyer v. DeKoeyer, 146 Vt. 493 (1986) (irrelevant speculation about future income; focus is contemporaneous conditions at divorce)
- Shaw v. Shaw (reiterated), 340-41 A.2d 836 (1994) (no anticipation if divorce did not contemplate specific future adverse income)
- In re Marriage of Wilson, 63 P.3d 1244 (Or. Ct. App. 2003) (retirement timing is speculative and may be unanticipated)
- Chaney v. Chaney, 699 P.2d 398 (1985) (retirement timing could be speculative; modification allowed)
- Lambertz v. Lambertz, 375 N.W.2d 645 (1985) (speculative future earnings do not bar modification)