Kimberlee J. Herring, v. Lee K. Herring, Jr.
No. 10-017
Supreme Court of Vermont
May 5, 2011
2011 VT 38 | 24 A.3d 574
Present: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
Lee K. Herring, Jr., Pro Se, Springfield, Defendant-Appellant.
¶ 1. Dooley, J. Husband Lee Herring, pro se, appeals from the family court‘s denial of his motion to terminate spousal maintenance to wife Kimberlee 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
¶ 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
¶ 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
¶ 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
¶ 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
¶ 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,
¶ 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.
¶ 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 seventeen 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 the fact that he or she engaged in criminal conduct“), superseded by statute as stated in Hopkins v. Stauffer, 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
¶ 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 a real, substantial, and unanticipated change of circumstances.”
¶ 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
¶ 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).