Lowery v. Lowery – Maintenance Order – Prospective Modification
Lowery v. Lowery, 156 Vt. 268, 591 A.2d 81 (1991).
NATURE OF THE CASE: This case involved an appeal from a modification of support and maintenance.
FACTS: Mr. and Ms. Lowery were divorced in 1984 and Mr. Lowery was ordered to pay $700 per month in support and maintenance until death, remarriage, or further order of the court. H was also ordered to maintain hospital and medical insurance through his employment for as long as he was able. If H were to become ineligible for such insurance H was to buy a comparable insurance policy. In either case H was to pay any uninsured medical, hospital or doctor bills incurred.
H earned $33,000 per year at the time of the order. H moved to Vermont and accepted employment for $40,000 per year but was terminated and received unemployment compensation of $169 per week. In 1990 H accepted temporary employment which paid $19 per hour. W petitioned to enforce the maintenance order. H sought modification of the order. The Vermont court ordered the arrearages paid and then reduced maintenance to $50 per month after January 1990. The order was silent regarding medical bills. W appealed.
ISSUE: Does a court have the power to modify a maintenance order prospectively if the issuing state allows prospective modification?
RULE OF LAW: Yes. A court with jurisdiction over an obligor under a maintenance order from another state has the power to modify that order prospectively if the state issuing it allows prospective modification.
HOLDING AND DECISION: A maintenance order issued in another state is entitled to full faith and credit only with respect to the amounts already accrued, and then only if such amounts are not subject to retroactive modification in the issuing state. The Sistare rule governs this case in that prospective maintenance orders are not entitled to full faith and credit if they can be modified in their state of origin. However this does not amount to a carte blanche for us to ignore the prospective order entirely.
On the principles of comity we retain discretion on how we will implement that comity and must conclude that modification of that order may be done when circumstances warrant. As far as the theory that Lowery should go back to California to seek modification, we find that we are reluctant to penalize H’s right to travel to Vermont by limiting relief available to him in a Vermont court to which W has come for enforcement. The parties are before us and we should resolve the entire dispute between them.
In order to obtain modification, Lowery must show a real, substantial, and unanticipated change of circumstances. A substantial reduction in H’s income would be a sufficient change of circumstances. Under these facts, we do not believe that the actual change in circumstances warranted the modification the court made. There is no evidence that H cannot find replacement work and his temporary job produced sufficient income to meet the maintenance award. The court left W with an award that was a mere 7% of that provided by the original order. We cannot conclude that this order fell within the ambit of the lower court’s discretion.
A temporary adjustment is proper under these circumstances. A time limit should be placed on any temporary adjustment and the court should also consider a reporting requirement so that W is informed about H’s employment status and income. As for the medical issue on remand the court must address that issue in some format.
DISPOSITION: Reversed and remanded.