Opinion
SUPREME COURT DOCKET NO. 2011-408
07-11-2012
Donna Foster-Mendicino v. Jerome L. Mendicino
Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
APPEALED FROM:
Superior Court, Chittenden Unit, Family Division
DOCKET NO. 96-2-87 Cndm
Trial Judge: Alison Arms
In the above-entitled cause, the Clerk will enter:
Husband appeals pro se from an order of the superior court, family division, granting his motion to modify spousal maintenance but declining to terminate the obligation. We affirm.
The record shows that the parties were divorced in 1988 pursuant to a final judgment that required husband to "pay to [wife] $140 per week alimony." In August 2011, husband moved to terminate the maintenance award on the grounds that he had been compelled to take a different job at a lower salary and had incurred additional college expenses for his children with a new partner. Following a hearing in which both husband and wife testified, the court issued a ruling in October 2011.
The court found that husband had been paying $600 per month since the original decree (slightly more than ordered) but with wife's agreement had reduced the monthly payment to $460 since 2010, when he changed jobs. Husband testified that he had been employed for many years as a salesperson for a moving company earning $50,000 to $60,000 per year, but after his position was eliminated he had been forced to take another job at one-third to one-half of his former salary. Wife testified that she had a part-time job with a hospital, but could not meet her monthly expenses if the maintenance award were terminated. The trial court found that husband had demonstrated a real, substantial, and unanticipated change of circumstances due to the change in employment, and reduced the award to $95 per week, observing that this "represent[ed] approximately two thirds of the original award." This appeal followed.
Husband contends that the trial court erred in declining to terminate the award entirely, asserting that the court's decision was based on a number of erroneous findings. Our review is limited. We view the trial court's factual findings in the light most favorable to the prevailing party, disregarding modifying evidence, and will not set them aside unless clearly erroneous. Stickney v. Stickney, 170 Vt. 547, 548 (1999) (mem.). Furthermore, the trial court is accorded broad discretion in setting the amount and duration of maintenance, and its ruling will not be disturbed unless there is no reasonable basis to support it. Bell v. Bell, 162 Vt. 192, 197-98 (1994).
We note at the outset that although the trial court's decision contains no specific findings concerning the parties' respective income and expenses, husband neither challenges this omission nor demonstrates an inability to pay the reduced award. Rather, he claims that the court's ruling was predicated upon certain erroneous factual findings. Although we apply a liberal briefing standard for pro se litigants, we will not undertake a search of the record for error where it is not demonstrated or otherwise evident. In re S.B.L., 150 Vt. 294, 297 (1988). Here, husband's argument contains no record citations to support his claim that the court's factual findings were in error. Accordingly, we discern no grounds to disturb the judgment on this basis.
Husband also takes issue with the trial court's finding that the college-related costs for his children born after the marriage were "a voluntary additional expense." We agree that the additional financial burden of supporting children from a later marriage may demonstrate an unanticipated and substantial change of circumstances. Here, however, the trial court found that the additional burden did not justify terminating husband's maintenance obligation entirely where wife was "unable to meet her living expenses without the maintenance." Husband has not demonstrated that this finding was factually erroneous or patently unreasonable.
Husband also contends the court erred in finding that the original divorce decree incorporated a permanent maintenance award. Where, as here, a decree awards maintenance with no time limit or duration, we cannot say that the court erred in construing it to be a permanent award. In any event, husband's argument appears to be predicated on the erroneous assumption that a permanent award may not be modified or terminated. The trial court here plainly did not share this assumption, but rather concluded that termination was unwarranted under the circumstances.
Finally, husband contends that he did not receive a copy of wife's financial statement prior to the hearing. Although he claims that this prevented him from challenging her omission of certain income from the statement, the claim is unsupported by any citation to the record or other argument showing how the alleged unspecified additional income would have altered the outcome. See Sumner v. Sumner, 2004 VT 45, ¶ 14, 176 Vt. 452 (we will not reverse judgment, even where there was trial court error, unless it can be shown that the ruling was "inconsistent with substantial justice" (citation omitted)). Accordingly, we find no basis to disturb the judgment.
Affirmed.
BY THE COURT:
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Paul L. Reiber, Chief Justice
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Marilyn S. Skoglund, Associate Justice
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Brian L. Burgess, Associate Justice