Supreme Court Finds that Remarriage Might Constitute an Unanticipated Change of Circumstances in Spousal Support Modification

In Kathleen Zink v. Bryan Zink, 2016 VT 46 (April 22, 2016), the Vermont Supreme Court reversed and remanded the Family Division’s order denying Bryan’s request to modify the spousal maintenance obligation.

Issue: The parties’ 2007 divorce order incorporated their agreement that Bryan would pay Kathleen permanent alimony of $1800 per month. Bryan wanted to modify the spousal maintenance obligation, arguing that the fact that he remarried and moved in with his current wife increased his living expenses such that there was a real, substantial, and unanticipated change of circumstances that would warrant modification.

Holding: The Court found that the Family Division did not use the proper standard to determine whether Bryan’s changed living expenses constituted an unanticipated change of circumstances. The Court noted that just because something is in the realm of possibility (the standard the Family Division used) does not mean that it is anticipated. The evidence on the record suggests that the changes in both Bryan and Kathleen’s living expenses constitute unanticipated changed circumstances. With regard to the spousal maintenance arrearages, the Court found that the trial court needed to address whether Kathleen might have forfeited her ability to collect retroactive support payments due to agreement, waiver, or equitable estoppel on remand.