Justis v. Rist

617 A.2d 148, 159 Vt. 240, 1992 Vt. LEXIS 141

Opinions

Johnson, J.

This appeal from a divorce order presents the issue of whether the family court has the authority to order the estate of the obligor spouse to continue maintenance payments in the event the obligor predeceases the recipient spouse. We conclude that Vermont statutory law provides no such authority, and, accordingly, vacate the family court’s order and remand the case for further proceedings.

The parties married in 1977, four months after they had met. It was the first marriage for the 62-year-old husband and the fourth for the 48-year-old wife. During the entire thirteen-year marriage, the parties kept separate finances, resided in different states, and were apart except for approximately four months.

The wife requested a property settlement in lieu of maintenance, but the court felt that “in light of the unique nature of this marriage, [the wife’s] needs are better met through a maintenance award.” The court indicated that a property settlement was not appropriate because the husband had acquired most of his property, valued at about $500,000, long before the marriage. Further, the court stated that it wanted to ensure reasonable support for the wife during her life without creating a windfall for her estate if there were a large property settlement and the wife, whose health was precarious, died soon thereafter.

Accordingly, the court ordered the husband to pay the wife $40,000 in a lump-sum property settlement and $1600 per month in permanent maintenance, said maintenance to cease “only upon the death of the Plaintiff and . . . [to] be otherwise payable from the estate of the Defendant should he predecease her.” The court further ordered that a lien in the sum of $180,000 be placed on the husband’s real estate to secure the maintenance payments. In support of its authority to order post-mortem maintenance, the court noted that Vermont law gives the family court broad discretion in fashioning maintenance awards, and that other jurisdictions with statutes similar to Vermont’s had ruled that the courts could order maintenance to continue beyond the death of the obligor spouse. The husband appeals from that ruling.

Vermont’s maintenance statute, 15 V.S.A. § 752, authorizes the trial court to order either spouse to make rehabilitative or permanent maintenance payments if the other spouse lacks sufficient income to meet reasonable needs and is unable to maintain the standard of living established during the marriage. The payments “shall be in such amounts and for such periods of time as the court deems just, after considering all relevant factors.” § 752(b). One of the factors listed is “the ability of the spouse from whom maintenance is sought to meet his or her reasonable needs while meeting those of the spouse seeking maintenance.” § 752(b)(6). Once the court has found grounds for awarding maintenance, “it has broad discretion in determining the duration and amount” of the award. Chaker v. Chaker, 155 Vt. 20, 25, 581 A.2d 737, 740 (1990).

Despite the trial court’s broad discretion to fashion maintenance awards, no statutory language expressly authorizes the court to continue maintenance beyond the death of the obligor. Whether the failure to address the issue of post-mortem maintenance was by design or omission is not apparent from the language of the statute itself. One of the few clues we have in the statute is that the trial court must consider the reasonable needs of the obligor spouse when awarding maintenance. This indicates that the legislature assumed the payments would be coming from the obligor personally rather than from the estate. On the other hand, § 752 authorizes the court to order “permanent” maintenance, which some may argue shows the legislature’s intent to allow maintenance to be measured by the death of the recipient. But “permanent” maintenance has traditionally been construed to be an indefinite award that ends with the.death of either spouse or the remarriage of the recipient spouse. 2 H. Clark, The Law of Domestic Relations § 17.5, at 264 (2d ed. 1987).

Because the statutory language is inconclusive on intent, we consider the context in which § 752 was amended and the state of the law on post-mortem maintenance at that time. Section 752 was amended in 1982 as part of the legislature’s general reform of divorce and support law in this state. See 1981, No. 247 (Adj. Sess.). Many of the new provisions, including § 752, follow closely the Uniform Marriage and Divorce Act, 9A U.L.A. 147 (1987) (Uniform Act). For example, both § 752 and § 308 of the Uniform Act state that the maintenance order shall be in amounts and for such “periods of time” as “the court deems just.” The legislature, however, did not adopt § 316(b) of the Uniform Act, which states, in relevant part, that the obligation to pay maintenance terminates upon the death of either party unless the parties agree, or the court expressly orders otherwise.

At the time § 752 was enacted, the generally accepted common-law rule was that the obligation to pay maintenance ceased upon the death of either party. See, e.g., Aldrich v. Aldrich, 163 So. 2d 276, 278-79 (Fla. 1964); Funnell v. Funnell, 584 P.2d 1319, 1322 (Okla. 1978). The rationale for the rule was that a former spouse receiving maintenance could not have “a greater right to support from the obligated spouse than if the parties had remained married and the obligated spouse died.” Chaney v. Chaney, 343 Pa. Super. 77, 83, 493 A.2d 1382, 1386 (1985). Another rationale was that, because maintenance compensates for the support from future income that would have been available but for the divorce, the right to it ends along with the income-earning capacity of the obligor. Estate of Kuhns v. Kuhns, 550 P.2d 816, 817 (Alaska 1976).

In many jurisdictions the common-law rule has been replaced by statutes, including those modeled after § 316 of the Uniform Act, that specifically state whether maintenance may be continued beyond the death of the obligor. The courts in jurisdictions without explicit statutory language are divided on whether such authority may be derived from a general statute, like § 752, which gives the courts broad discretion to fashion maintenance awards. Compare Ehrler v. Ehrler, 69 Misc. 2d 234, 235, 328 N.Y.S.2d 728, 729 (Sup. Ct. 1972) (because statute contains no language expressly authorizing continuance of alimony after obligor’s death, alimony terminates upon obligor’s death)

Footnotes

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* **§; McCune v. McCune, 284 S.C. 452, 455, 327 S.E.2d 340, 341 (1985) (family court exceeded its authority in ordering periodic alimony payments to continue after obligor’s death), with In re Estate of Gustafson, 287 N.W.2d 700, 701-02 (N.D. 1980) (statute permitting court to make maintenance award as “may seem just” authorized continued payments during life of recipient spouse after obligor’s death); Prather v. Prather, 172 W. Va. 348, 352, 305 S.E.2d 304, 309 (1983) (divorce court had power to make award of alimony payments binding on obligor’s estate where statute empowered court to make award that it deemed expedient concerning the estate and maintenance of the parties). See generally Annotation, Death of Obligor Spouse as Affecting Alimony, 79 A.L.R.4th 10 (1990).

Given the absence of statutory language expressly authorizing post-mortem maintenance, the legislature’s failure to adopt § 316 of the Uniform Act which authorized courts to order such payments, and the common-law rule proscribing post-mortem maintenance, we will not assume the legislature intended § 752 to override the generally accepted and long-established rule that the obligation to pay maintenance ceases upon the death of either party. See O’Brien v. Island Corp., 157 Vt. 135, 140, 596 A.2d 1295, 1298 (1991) (we must presume legislature did not intend to overturn a long-established principle of law unless such an intention is clear); cf. Johnson v. Martin, 567 A.2d 1299, 1304 (D.C. App. 1989) (enactment of statute based on another law, but different in one or more provisions, shows intent not to follow the law in that regard). To do so would amount to judicial legislation. Aldrich v. Aldrich, 163 So. 2d at 280; cf. In re Marriage of Koktavy, 44 Colo. App. 305, 306, 612 P.2d 1161, 1162 (1980) (legislature’s adoption of § 316 of Uniform Act changed prior supreme court holding that divorce courts do not have authority to award alimony after obligor’s death). Accordingly, we hold that the courts have no authority to order maintenance to continue beyond the life of the obligor spouse unless the parties have agreed otherwise.

This is not to endorse the notion, as a matter of policy, that post-mortem maintenance awards should not be allowed by statute. To the contrary, it is precisely because we recognize the compelling policy considerations both in favor of and against post-mortem maintenance that we choose to leave this decision to the legislature. 2 H. Clark, The Law of Domestic Relations § 17.6, at 292-93 (there remains substantial conflict among states over whether courts should have authority to order ali mony to continue after obligor’s death, but the continuation of maintenance in most cases causes hardship, inconvenience and expense to the decedent’s second family). Compare In re Estate of Gustafson, 287 N.W.2d at 701 (common-law rationale, that no longer exists, for denying maintenance after death of obligor was that divorce did not fully terminate marriage so wife retained interest in her husband’s estate), with Funnell v. Funnell, 584 P.2d at 1324 (unless recipient spouse is a lawful creditor of the decedent pursuant to property or contract rights, that spouse should not be placed in a status that undercuts the decedent’s second family, who have no legal duty to support); Estate of Kuhns v. Kuhns, 550 P.2d at 818 (continuance of maintenance in most cases causes hardship to those closer to husband such as second wife and children of second marriage). Unlike the Court, the legislature is able to consider all the policy ramifications that flow from a major change in the law and to harmonize other statutes, such as those on the administration of estates, if necessary, to effectuate new policy.

We need determine here only whether the legislature, by enacting § 752, intended to give the courts the authority at issue in this case. We conclude that it did not.

Because our law requires the court to consider the property division and maintenance in conjunction with each other, see 15 V.S.A. § 751(b)(7) and § 752(a)(1), the property division must be vacated to allow the court leave to revise it, if necessary, and fashion an appropriate order consistent with the circumstances of this case. Downs v. Downs, 154 Vt. 161, 168, 574 A.2d 156, 159 (1990).

The provisions of the May 2k, 1991 divorce order dividing the parties’ property and awarding maintenance are vacated; in all other respects, the order is affirmed. The matter is remanded for further proceedings consistent with this opinion.

New York law now provides that “an award of maintenance shall terminate upon the death of either party.” See Keehn v. Keehn, 137 A.D.2d 493, 495-96, 524 N.Y.S.2d 238, 241 (1988) (quoting Domestic Relations Law § 236(B)(1)(a)).