Strauss v. Strauss, 628 A.2d 552

Strauss v. Strauss

628 A.2d 552

Vt.

1993

Check Treatment

Dooley, J.

The sole issue in this appeal from a final divorce order of the Chittenden Family Court is whether defendant Roberta Strauss is entitled to permanent maintenance, rather than time-limited rehabilitative maintenance, from her husband Michael Strauss. We hold that she is so entitled and reverse and remand.

At the time of the divorce in 1991, defendant was forty-eight years old and plaintiff was fifty-one years old. They were married in 1968, and shortly thereafter plaintiff earned a Ph.D. in chemistry. Following a short post-doctoral program in Scotland, they settled in Burlington when plaintiff obtained a job at the University of Vermont, where he has since become a tenured professor of chemistry.

The parties raised two children, both of whom are now adults. Defendant attended the University of Vermont and in 1976 was awarded a degree in psycholоgy, earning phi beta kappa honors. In 1990, she obtained a fifth-year certificate in order to teach school and has become licensed as a teacher. She has worked outside the home only infrequently, as a retail sales clerk and as an editоr for a local magazine. At the time of the divorce hearing, she was working on a bicentennial project as a volunteer.

Plaintiff’s income is about $58,000 per year, of which about $5000 comes from a government grant that will expire soon. He is expected to have a stable income until he retires at age sixty-five.

The major assets of the parties were a house and a camp, with equity values respectively of $106,000 and $40,000, and plaintiff’s pension, with a present value, of $211,000. The family court awarded the house to defendant аnd the camp to plaintiff and split the pension between them. Defendant requested a maintenance award, and the court agreed she was entitled to maintenance, but concluded:

The wife here is being awarded the marital home with a relatively small mortgаge and low monthly payments. She is capable of working, although she is not likely to quickly locate a permanent job which will meet her reasonable needs. We decline to conclude that she will never be able to find such a job. This is a clear case for rеhabilitative alimony. We have here a woman who is healthy, intelligent and not tied down to the care of children. To conclude that she should be awarded permanent alimony would be to conclude that she is some sort of social misfit who will never be able to support herself. The evidence nowhere supports such a conclusion. This is a case for rehabilitative maintenance. . . . One of its purposes is to put pressure on the recipient to find employment or to undertake education or training which will lead tо employment.

The court awarded maintenance of $1500 per month until the end of 1993, $1000 per month until the end of 1995, and $500 per month until the end of 1997. It added an award of up to $100 per month during the maintenance period to cover uninsured “counselling or therapy as is reasonably likely to enhance the wife’s employability.”

The court’s conclusion was based in part on evidence of an employment counselor who testified that defendant’s prospects of finding a teaching job were poor because of her age, her lаck of experience, and the recession’s effect on the labor market. He felt that defendant might be able to obtain work in the service sector, but even there, jobs were limited and the work would be low-paying and possibly only part-time. The employment counselor noted that defendant has certain idiosyncracies that gave employers a negative impression at job interviews. The court’s findings reflect most of this evidence, and the award for counseling was intended in part to overcome the idiosyncracies.

The relevant statute, 15 V.S.A. § 752(a), authorizes an award of maintenance, either rehabilitative or permanent, when the recipient spouse lacks sufficient income or property “to provide for his or her reasonable needs” and “is unable to supрort himself or herself through appropriate employment at the standard of living established during the marriage.” The reference ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to reasonable needs should not be looked at in relation to subsistence. Downs v. Downs, 154 Vt. 161, 166, 574 A.2d 156, 159 (1990). The critical comparison is to the standard of living еstablished during the marriage. See Johnson v. Johnson, 155 Vt. 36, 40-41, 580 A.2d 503, 506 (1990). Thus, spousal maintenance is intended to correct the vast inequality of income resulting from the divorce, Russell v. Russell, 157 Vt. 295, 299, 597 A.2d 798, 800 (1991), and to equalize the standard of living of the parties for an appropriate period of time. Downs v. Downs, 159 Vt. 467, 469, 621 A.2d 229, 230 (1993).

In a long-term marriage, mаintenance also serves to compensate a homemaker for contributions to family well-being not otherwise recognized in the property distribution. See Klein v. Klein, 150 Vt. 466, 474, 555 A.2d 382, 387 (1988). This is more than a “rehabilitative function.” Russell, 157 Vt. at 299, 597 A.2d at 800. The purpose of rehabilitative maintenance is to assist thе recipient-spouse in becoming self-supporting. See Belanger v. Belanger, 148 Vt. 202, 204-05, 531 A.2d 912, 914 (1987) (court awarded time-limited maintenance to give wife opportunity to establish herself financially).

The statute authorizes both rehabilitative and permanent maintenance and states no preferеnce between these approaches. See Russell, 157 Vt. at 299, 597 A.2d at 800-01. Our cases require that rehabilitative maintenance be time-limited, Cleverly v. Cleverly, 147 Vt. 154, 159, 513 A.2d 612, 615 (1986), but give little guidance on when time limits should be imposed. Given the wide discretion available to the trial ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍court in fashioning a maintenance award, we have generally affirmed the approach adopted by the trial court. See, e.g., Quesnel v. Quesnel, 150 Vt. 149, 151, 549 A.2d 644, 646 (1988) (maintenance award must be affirmed unless “there is no reasonable basis to support” it). We have noted the power to modify a maintenance award in the future if рredictions about the recipient’s ability to become self-supporting prove erroneous. See Cleverly, 147 Vt. at 159-60, 513 A.2d at 615. We emphasized in Klein, however, that “rehabilitative maintenance alone would not be sufficient unless the court can find, based on the evidence, that defendant will be able to support herself at the standard of living established during the marriage.” Klein, 150 Vt. at 476, 555 A.2d at 388.

Although we have not clearly defined when maintenance should be time-limited, the considerations we have used in affirming trial court decisions are instructive. In Bancroft v. Bancroft, 154 Vt. 442, 578 A.2d 114 (1990), we affirmed a five-year award of rehabilitative maintenance at the termination of an eleven and one-half year marriage. At the time of the divorce, the wife was in a professional position earning $30,000 per year while the husband was earning $40,000 per year. The trial court grounded the award on the reduction of the wife’s earning capacity that resulted from a relocation necessary to further the husband’s education. We concluded that equalizing the parties’ financial status for an appropriate period was a proper purpose. Id. at 446, 578 A.2d at 117.

At the other extreme is Russell v. Russell, 157 Vt. at 298-99, 597 A.2d at 800-01, where we affirmed an award of permanent maintenance, over challenge by the husband, to a forty-four year old wife after a twenty-five year marriage. The wife had been a homemaker, raising four children, and had limited work experience outside the homе. She was a diabetic. We noted that “the prospects that she would remotely approach the husband’s earning capacity were slim” and concluded that the award served to maintain the wife at the standard of living established during the marriage as well as compensate her for her service as a homemaker. Id.

Although there are no definitive standards in Bancroft or Russell, it is clear that we found important the length of the marriage, the role the wife played during the marriage, and the income the wife is likely to achieve in relation to the standard of living set in the marriage. Thesе are the most critical factors that have been considered by other courts in determining whether time-limited maintenance is appropriate. See In re Morrison, 573 P.2d 41, 51-52, 143 Cal. Rptr. 139, 149-50 (1978); Walter v. Walter, 464 So. 2d 538, 539 (Fla. 1985); Frost v. Frost, 581 S.W.2d 582, 584-85 (Ky. Ct. App. 1979); Johnson v. Steel, Inc., 581 P.2d 860, 863-64 (Nev. 1978); Herring v. Herring, 335 S.E.2d 366, 368-69 (S.C. 1985).

We cannot find a recognition of the important factors in the trial court’s decision here. The court recounted defendant’s limited employment history and stated that it was unlikely she would obtain a teaching job. It concluded, however, that defendant would be able to obtain some sort of job because she is not a social misfit, and it awarded rehabilitative maintenаnce for that reason. There is no finding that the job would produce an income that would enable defendant to live at the standard established during the marriage, as required by Klein. 1 Nor is there any consideration of defendant’s long-term contribution as a homemaker and primary caretaker of the children. Although we accord wide discretion to the court in fashioning a mainte-

nance award, the award must be supported ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍by sufficient findings. See Sullivan v. Sullivan, 147 Vt. 407, 408, 518 A.2d 33, 34 (1986). The findings are insufficient to support the court’s determination that maintenance should be time-limited. See Johnson v. Steel, Inc., 581 P.2d at 864 (award of rehabilitative maintenance reversed where there are no findings that spouse will earn enough to equal the maintenance); Therrell v. Therrell, 383 S.E.2d 259, 261 (S.C. Ct. App. 1989) (rehabilitative maintenance award reversed because of lack of finding spouse will achievе self-sufficiency at end of maintenance period).

Although we have narrowly addressed the question before us, we find it appropriate to go further to define the limits of the discretion available to the trial court. See Klein, 150 Vt. at 472, 555 A.2d at 386. The main difficulty in fashioning an appropriate maintenance award is in predicting “the future circumstances of the parties.” Klein v. Klein, 153 Vt. 551, 557, 572 A.2d 900, 904 (1990). Although an award based on an inaccurate prediction can be modified in the future, we do a disservice to those who use our courts if we lock them into continuous, expensive litigation. Indeed, a major purpose of rehabilitative maintenance, to allow the spouses to get on with independent lives, will be frustrated by the continuing litigation. Moreover, it may be impossible for a spouse with an inadequate income to pay fоr necessities to obtain timely court action to modify a maintenance award. Thus, while it is theoretically possible to eliminate the time limitation and convert a rehabilitative maintenance award into a permanent award if predictions about the recipient’s ability to become adequately self-supporting prove optimistic, we must minimize the cases in which such conversion is necessary. See Frost, 581 S.W.2d at 584 (time-limited maintenance appropriate only when spouse “will clearly be self-sufficient at the end of that period”).

The evidence in this case showed that it was extremely unlikely that defendant would ever be able to achieve a sufficient income to maintain the middle-class living standard established during the marriage. Although defendant is better-educated than many others, she is a displaced homemaker whose age, gender and lack of employment experience greatly limit her earning potential. See Goldfarb, Marital Partnership and the Case for Permanent Alimony, 27 J. Fam. L. 351, 368 (1988-89); Comment, The Displaced Homemaker and the Divorce Process in Wisconsin, 1982 Wis. L. Rev. 941, 942. Moreover, she has served for many yеars as a homemaker whose contribution to the earning capacity of her husband is entitled to recognition. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍A time-limited maintenance award is likely to leave her with an inadequate income at the end of the time limit and no compensation for her yeаrs as a homemaker. See Crim v. Crim, 345 S.E.2d 515, 518 (S.C. Ct. App. 1986) (on similar facts, court states that it “would deny reality” to believe spouse would achieve the standard of living of the marriage). In light of defendant’s age, the length of the marriage and her lack of work experience, we hold thаt as a matter of law defendant is entitled to some amount of periodic maintenance of indefinite duration. 2 This holding is consistent with that of courts in other jurisdictions. See Krauskopf, Rehabilitative Alimony: Uses and Abuses of Limited Duration Alimony, 21 Fam. L.Q. 573, 579 (1988) (“The overriding effect of the reсent cases ... is that limited-time alimony is abused when applied to traditional homemakers in lengthy marriages”).

In reaching this holding, we recognize that one of the purposes of rehabilitative maintenance is to provide an economic incentive for the rеcipient spouse to achieve self-sufficiency. Although we doubt that the level of maintenance that can be supported by plaintiff’s income will eliminate the need for defendant to achieve a measure of self-sufficiency on her own, we believe an appropriate mixture of permanent and time-limited maintenance can achieve fully all the objectives of a maintenance award.

Reversed and remanded.

Notes

In view of our holding that defendant is entitled to maintenance, infra, we do not decide whether the court cоuld have made such a finding on the evidence present here.

Defendant argues that she is independently entitled to permanent maintenance under Downs v. Downs, 154 Vt. 161, 574 A.2d 156 (1990), to compensate her for her contribution to plaintiff’s career as a college professor. Thеre are important distinctions between this case and Downs. Defendant did not forego her career to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍put plaintiff through school as in Downs. More important, unlike Downs, defendant realized the rewards of plaintiff’s professional success during the lengthy marriage. We do not believe that the Downs holding represents an independent ground for awarding permanent maintenance to defendant.