Summary
In Jacobs, 144 Vt. at 127, 473 A.2d at 1167, this Court held that voluntary reduction of income could not be grounds for reducing a stipulated support order "absent a sufficient reason for the sacrificing of income."
Summary of this case from McCormick v. McCormickOpinion
No. 82-428
Opinion Filed February 3, 1984
1. Appeal and Error — Findings — Tests for Overturning
Supreme court will not set aside findings of fact unless, taking the evidence in the light most favorable to the prevailing party and excluding the effects of modifying evidence, they are clearly erroneous. V.R.C.P. 52.
2. Divorce — Decree — Modification
A court may modify an original divorce decree if the petitioner demonstrates a substantial change of circumstances since the time of the original decree.
3. Divorce — Decree — Modification
Where an original divorce decree incorporated a stipulation of the parties, petitioner for modification of that decree bears the burden of showing why he or she should be excused from a presumptively fair, formal and binding promise to perform.
4. Divorce — Decree — Modification
A modification of an original divorce order is proper if the petitioner has proven unanticipated, intervening circumstances, fraud, impossibility of performance or unconscionable advantage.
5. Contempt — Defenses
Inability without fault to obey an order of court is a valid defense to a charge of contempt.
6. Divorce — Custody and Support of Children — Modification of Decree
Where original 1980 divorce decree incorporated a stipulation of the parties wherein former husband agreed to pay $35.00 weekly for the support of their minor child and in 1982 former husband filed a motion for modification of the original support order, citing a substantial change in his financial circumstances, since the change of financial circumstances claimed by former husband was not intervening and unanticipated, but rather resulted from the fact that he had voluntarily quit his job in 1980 in order to spend more time with his girlfriend and did not work again until 1981, when he started his own business, and former husband did not claim that he was incapable of compliance with the original order because of fraud, impossibility of performance or unconscionable advantage on the part of former wife, trial court's order reducing the support payments was not proper.
7. Divorce — Decree — Modification
A change of financial circumstances resulting from a deliberate and voluntary act, absent a sufficient reason for the sacrificing of income, will not support either a modification of a divorce decree based on a stipulation of the parties or a finding of inability without fault to obey the order.
8. Trial — Findings — Necessity
Where former husband filed a motion for modification of a support order and former wife filed a petition asking that former husband be found in wilful contempt of that order, since the evidence disclosed that former husband failed to obtain medical insurance for the parties' minor child or contribute one-half of the cost of medical and dental treatment for the child as he had agreed to do under the terms of a stipulation incorporated into the parties' original divorce decree, trial court which granted the modification erred in failing to make any finding relative to the insurance and medical payments. V.R.C.P. 52.
9. Trial — Findings — Necessity
Findings of fact made under the rule of civil procedure governing findings by the trial court must state the facts essential to the disposition of the issues properly before the court. V.R.C.P. 52.
10. Pleading — Motion for Amendment of Judgment — Hearing
A hearing should be granted on a motion to amend a judgment or grant a new trial when the grounds relied upon are stated with particularity and the motion is neither frivolous nor totally lacking in merit. V.R.C.P. 59.
Appeal from an order modifying an original divorce decree. Windham Superior Court, Keyser, J., presiding. Reversed and remanded.
William M. McCarty, Brattleboro, for Plaintiff-Appellant.
Present: Billings, C.J., Hill, Underwood, Peck and Gibson, JJ.
Plaintiff appeals from an order of the Windham Superior Court modifying an original divorce decree rendered on June 23, 1980. She claims three errors: (1) that the evidence does not support the findings of fact and conclusions of law; (2) that the court failed to make a finding relative to the original decree's order respecting insurance and medical payments; and (3) that the court erred in not holding a hearing on her specific V.R.C.P. 59 and 60(b) motions.
The original 1980 divorce decree incorporated a stipulation of the parties wherein defendant agreed to pay $35.00 weekly for the support of their minor child. In addition, defendant agreed to maintain health insurance coverage for the child as well as provide for one-half of all uninsured medical and dental expenses. Except for a payment of $297.59 made to plaintiff in September, 1980, in response to a contempt order issued by the Windham Superior Court, defendant has not complied with the original order.
In June, 1982, defendant filed a motion for modification of the original support order, citing a substantial change in his financial circumstances. Plaintiff filed a petition for contempt, asking that defendant be found in willful contempt of the court's original order of June 1980. After hearing both defendant's motion for modification and plaintiff's petition for contempt, the court reduced defendant's support payments based on a finding that his financial circumstances had changed. Although defendant voluntarily left his employment in 1980, the court found that after unsuccessfully seeking employment out of state, defendant was now self-employed, at a reduced level of income, in a Brattleboro radiator repair business. The court further found that defendant was in arrearages in the amount of $1,470.00 based on the original support payments, but that he was not in contempt because he had an inability without fault to obey the original support order. The court ordered defendant to pay $15.00 weekly support and $10.00 a week on the arrearage until fully paid.
Plaintiff moved for relief from judgment pursuant to V.R.C.P. 59 and V.R.C.P. 60(b), claiming that the evidence did not support the court's finding of a change in defendant's financial circumstances. Without hearing, the court amended its order, raising the support payments to $20.00 weekly for one year, and thereafter, to $25.00 weekly.
This Court will not set aside findings of fact unless, taking the evidence in the light most favorable to the prevailing party and excluding the effects of modifying evidence, they are clearly erroneous. V.R.C.P. 52; Cliche v. Cliche, 140 Vt. 540, 541, 442 A.2d 60, 61 (1982). A court may modify an original divorce decree if the petitioner demonstrates a substantial change of circumstances since the time of the original decree. Id. at 542, 442 A.2d at 61. Where the original decree incorporated a stipulation of the parties, the petitioner bears the burden of showing why he or she should be excused from a presumptively fair, formal and binding promise to perform. Braine v. Braine, 127 Vt. 211, 213-14, 243 A.2d 797, 799 (1968). A modification of an original order is proper if the petitioner has proven unanticipated, intervening circumstances, fraud, impossibility of performance or unconscionable advantage. Cliche, supra, 140 Vt. at 542, 442 A.2d at 61. Further, inability without fault to obey an order of court is a valid defense to a charge of contempt. Ohland v. Ohland, 141 Vt. 34, 41, 442 A.2d 1306, 1310 (1982).
In the case at bar, the change of financial circumstances claimed by defendant was not intervening and unanticipated; rather, defendant freely admitted that he voluntarily quit his job in 1980 in order to spend more time with his girlfriend and did not work again until June, 1981, when he started his own radiator repair business. Nor was there any claim by defendant that he was incapable of compliance with the original order because of fraud, impossibility of performance or unconscionable advantage on the part of plaintiff. A change of circumstances resulting from a deliberate and voluntary act, absent a sufficient reason for the sacrificing of income, will not support either a modification of a decree based on the stipulation of the parties or a finding of inability without fault to obey the order. Id.; Cliche, supra, 140 Vt. at 542, 442 A.2d at 61-62.
Further, the evidence disclosed that defendant failed to obtain medical insurance for his child or contribute one-half of the cost of medical and dental treatment for the child as he agreed to do under the terms of the original order. The trial court failed to make any finding on this issue. Findings of fact made under V.R.C.P. 52 must state the facts essential to the disposition of the issues properly before the court. American Trucking Associations v. Conway, 142 Vt. 17, 23, 451 A.2d 42, 45 (1982).
The trial court's failure to hold a hearing on plaintiff's Rule 59 and 60(b) motions conflicts with our ruling in Jensen v. Jensen, 139 Vt. 551, 433 A.2d 258 (1981). There we stated that "a hearing should be granted on a V.R.C.P. 59 motion when the grounds relied upon are stated with particularity and the motion is neither frivolous nor totally lacking in merit." Id. at 554, 433 A.2d at 260. Plaintiff's motion met these requirements, and a hearing should have been held.
Reversed and remanded.