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Day v. Day
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Decision:	1998 ME 194	
Docket:	Ken-98-6
on Briefs:	June 22, 1998
Decided:	July 31, 1998




	[¶1]  Walter Sanderson Day ("Mr. Day") appeals from the judgment
entered in the Superior Court (Kennebec County, Crowley, J.) in favor of
Rachael E. Day ("Ms. Day") on her former husband's post-judgment motion
to reduce his alimony obligation.  Mr. Day argues that the court erred by
refusing to modify his alimony obligation in light of a substantial change in
Ms. Day's financial circumstances.  In her cross-appeal Ms. Day contends
that the court erred by denying her request for reimbursement of her
attorney fees and costs.  We disagree with both Mr. and Ms. Day and affirm
the judgment.
	[¶2]  The parties in this case were divorced on March 30, 1989.  The
divorce judgment entered by the court (Kennebec County, Lipez, J.) adopted
and incorporated by reference an agreement reached privately by the
parties.{1}  The agreement divided the parties' marital property and required
Mr. Day to pay Ms. Day $160,000 in cash "in order to effect an equitable
division of property between the two parties."  The agreement requires Mr.
Day to pay Ms. Day alimony for a fixed 10-year period:  "$2,500 per month,
first such payment to be made on March 1, 1989, and the final such
payment to be made on March 1, 1999."  The alimony provision further
Except for said termination, the obligation of Husband to pay
alimony to Wife is fixed and final and is not subject to increase,
decrease, or any other modification of any other kind for any
reason, including the changed financial circumstances of either
party. (emphasis added).   
	[¶3]  At the time of the divorce, Mr. Day owned and operated a travel
business and earned approximately $112,000 per year; Ms. Day worked
part-time earning less than $10,000 per year.  In January, 1997, Ms. Day
won the Tri-State lottery.  Pursuant to a prior agreement she gave a portion
of the jackpot to a friend and thus will receive $4 million over twenty years. 
Ms. Day, now 59 years old, no longer works, owns her own home, and has a
net worth of approximately $2.3 million.  Mr. Day is now 64 years old and
continues to own and operate his travel business.  His annual income is
estimated at $125,000 and his net worth is approximately $1.56 million.
	[¶4]  Mr. Day's motion to amend the divorce decree was denied
(Kennebec County, Crowley, J.) after a hearing, and this appeal ensued.
	[¶5]  Mr. Day argues that, regardless of the existence of an
unambiguous anti-modification provision in the separation agreement
incorporated into the divorce decree, Ms. Day's lottery income constitutes
an extraordinary change in circumstances that compels a reduction in his
alimony obligation. Absent a violation of some positive rule of law, we will
overturn the trial court's decision of whether to modify spousal support only
if it results in a plain and unmistakable injustice, "so apparent that it is
instantly visible without argument."  Smith v. Smith, 419 A.2d 1035, 1038
(Me. 1980).  In general, the divorce court may modify an award of alimony
upon the showing of a substantial change in either the payor or payee
spouse's financial condition.  See Haag v. Haag, 609 A.2d 1164, 1165 (Me.
	[¶6]  Although parties to a divorce may fashion a private settlement
agreement addressing property division and spousal support, and the
divorce court may incorporate this agreement into the divorce decree, only
an incorporated agreement's provision not to increase alimony will survive
despite subsequent events.  See Hale v. Hale, 604 A.2d 38, 41 (Me. 1992)  In
all other circumstances, the divorce court is empowered to "alter or amend
a decree for spousal support or specific sum when it appears that justice
requires it."  19-A M.R.S.A. § 951(4) (1998).  	Because the divorce decree
reflects the court's consideration of all of the relevant statutory factors, see
19-A M.R.S.A. § 951 (1998), once a separation agreement is incorporated
into the divorce decree, it is the intent of the divorce court, rather than that
of the parties, that is determinative of the parties' obligations, see Wardwell
v. Wardwell, 458 A.2d 750, 752 (Me. 1983).  Due regard, however, is given
to the parties' intent to insulate a spousal support award from future
economic uncertainty when such intent is reflected by an anti-modification
provision incorporated into the divorce decree.  In the absence of an
incorporated anti-modification provision, a payor spouse seeking to reduce a
spousal support obligation would bear the burden of establishing a substantial
change in the payor spouse's ability to pay or a substantial change in the
payee spouse's need for support.  See Haag, 609 A.2d at 1165.  When the
divorce decree incorporates the parties' agreement that there be no
modification of the award of alimony, however, a payor spouse seeking to
reduce his or her obligation must justify the modification on the basis of
changed circumstances beyond a mere showing that there has been a
substantial change in the parties' respective economic circumstance.  See
Hale, 604 A.2d at 41 ("an anti-modification provision should be considered
by the divorce court as an extraordinary circumstance, imposing a greater
evidentiary burden on the payor spouse who seeks to modify a decree than
would be encountered where no such agreement exists").
	[¶7]  We assume that the existence of an incorporated anti-
modification provision is one of the many factors a divorce court considers
when it determines an appropriate level of spousal support.  The level of
spousal support awarded to a payee spouse in a divorce decree with an
incorporated anti-modification provision reflects the court's recognition of
value in the certainty associated with a fixed support award.  More simply
stated, a divorce decree with an incorporated anti-modification provision
anticipates that the financial circumstances of either of the parties may
change substantially.  
	[¶8]  In reviewing Mr. Day's motion to amend, the divorce court was
not compelled by any equitable considerations to upset the balance that had
been struck at the time of the original decree.  See, e.g., Knox v. Remick,
358 N.E.2d 432, 435-36 (Mass. 1976) (modification to spousal support
award justified when spouse became public charge subsequent to the
execution and incorporation of the separation agreement).  Because all that
Mr. Day offered the court to justify a reduction in his spousal support
obligation was evidence of a substantial change in Ms. Day's financial
circumstances, the divorce court did not exceed the bounds of its discretion
in denying his motion to amend the divorce judgment. 
	[¶9]  Ms. Day argues that the trial court should have awarded her
counsel fees because the "effort and cost in defending [Mr. Day's motion to
amend] was not her choice."  A trial court "may" order a party to pay
reasonable fees for actions concerning orders to amend an existing decree. 
19-A M.R.S.A. § 952(3) (1998); see also  Bryant v. Bryant, 411 A.2d 391, 395
(Me. 1980) (court has broad discretion in its decision to award attorney fees
in spousal support actions).  Given the merits of Mr. Day's motion, however
unsuccessful, and the ability of each party to meet its own financial
obligations, the trial court did not trespass beyond the bounds of its
discretion in refusing to award Ms. Day her incurred attorney fees.  See Lee
v. Lee, 595 A.2d 408, 412 (Me. 1991) ("An award of attorney fees is
generally based on the parties' relative capacity to absorb the costs of
litigation.") (internal quotations and citations omitted). 
	The entry is:
Judgment affirmed.
Attorney for plaintiff: Peter T. Dawson, Esq. P O Box 5036 Augusta, ME 04332-5036 Attorney for defendant: William A. Lee, Esq. O'Donnell & Lee, LLC P O Box 559 Waterville, ME 04903-0559
FOOTNOTES******************************** {1} The divorce decree reads, in part: The Separation and Divorce Agreement of the parties . . . and all terms and provisions thereof, which Agreement is attached hereto, is hereby adopted, incorporated by reference, and made a part of this judgment.