Thomas Keefe v. Jessica Howard

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2010-451
APRIL TERM, 2011
Thomas Keefe } APPEALED FROM:
}
}
v. } Superior Court, Bennington Unit,
} Family Division
}
Jessica Howard } DOCKET NO. 35-1-01 Bndm
Trial Judge: Karen R. Carroll
In the above-entitled cause, the Clerk will enter:
Husband appeals from an order granting wife’s motion to clarify husband’s maintenance
obligation under the parties’ stipulated divorce judgment. We affirm.
The parties divorced in 2001 following a lengthy marriage. The divorce judgment
incorporated the terms of the parties’ agreement. Paragraph 13 of the stipulated judgment
awarded wife spousal maintenance of $14,000 annually until she remarried, cohabitated, or
experienced a “substantial change in [her] financial circumstances.” The judgment defined the
latter as wife’s “earning more than $1000 a year of additional income, adjusted for inflation,” in
which circumstance “the adjustment shall be to reduce the spousal maintenance by the amount
over $500 in additional income that [wife] earns in any year that there is such a substantial
change in her financial circumstances.”
In July 2010, wife filed a motion with the trial court stating that husband had taken the
position that spousal maintenance should be reduced by the “amount [wife] could be earning” or
“amounts [she] could receive from Social Security” if she claimed benefits. The motion sought
to clarify that “additional income” under the agreement refers to wife’s actual rather than her
potential or possible earnings. Husband disputed wife’s assertion that the scope of “income”
under the agreement was so limited as to exclude “potential social security income, investment
income, rental income” and other “accepted types of remuneration.” Following a hearing, the
court issued an order interpreting the agreement to incorporate the broad meaning of income as
found in 15 V.S.A. § 653(5)1 but not to include “potential income.” The court denied husband’s
subsequent motion for reconsideration. This appeal followed.
1
This provision in the subchapter of Title 15 dealing with child custody and support
defines “gross income” to include “income from any source, including, but not limited to,
income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay,
pensions, interest, trust income, annuities, capital gains, social security benefits, workers’
compensation benefits,” and the like, 15 V.S.A. § 653(5)(A)(i), as well as “the potential income
of a parent who is voluntarily unemployed or underemployed.” Id. § 653(A)(iii).
Husband contends the court erred in holding that the law precludes the imputation of
potential income to a spouse “for spousal support purposes.” The issue before the court,
however, was not whether or under what circumstances a trial court may generally consider
potential or imputed income in awarding spousal maintenance. Indeed, it is settled that the
court’s discretion is quite broad in this regard. See, e.g., Kohut v. Kohut, 164 Vt. 40, 44 (1995)
(upholding maintenance award to wife based on husband’s former salary and court’s finding that
he was voluntarily underemployed); Scott v. Scott, 155 Vt. 465, 470-71 (1990) (upholding award
of spousal maintenance to wife based, in part, on income that husband was “capable” of earning
and “imputed” rental income).
Rather the issue here was whether these parties, in their agreement, intended to include
wife’s potential income in calculating her “earnings” for purposes of reducing husband’s future
maintenance obligation. See Lussier v. Lussier, 174 Vt. 454, 455 (2002) (mem.) (holding that
terms of stipulated divorce judgment “must be interpreted according to the parties’ intent”). The
trial court concluded that, “for the purposes of ¶ 13” of the parties’ agreement, the general
definition of “income” under 15 V.S.A. § 653(5) applied, but also that “for the purposes of the
same paragraph” the agreement did not include potential income. Husband cites nothing in the
record to suggest that the trial court erred in construing the parties’ intent to exclude potential
income. Accordingly, we find no error.
Nothing in the court’s order denying husband’s motion for reconsideration compels a
different conclusion. Husband had urged the court to adopt the definition of income as set forth
in 15 V.S.A. § 653(5). In denying the motion to reconsider, the court observed that the statute
defines “potential” income solely in terms of a “parent who is voluntarily unemployed or
underemployed,” 15 V.S.A. § 653(5)(A)(iii), a definition which would not appear to apply to
social security payments that a spouse is eligible to receive having reached the minimum age of
retirement.2 We find no error in this regard, and thus no basis to disturb the judgment.
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Brian L. Burgess, Associate Justice
2
Although, for reasons unclear, husband asserts that the issue of wife’s eligibility for
social security payments was not before the court, in fact he had expressly argued that such
payments were “ ‘potential income’ [that] should be counted as income” under the agreement.
2