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Lyon v. Lyon
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 75
Docket: 	Han-98-416
on Briefs:	March 12, 1999
Decided:	May 17, 1999



	[¶1]  Mark Lyon appeals from a judgment of the Superior Court
(Hancock County, Delahanty, J.) denying his motion to modify or terminate
his spousal support payments to his ex-wife, K. Halle Watson Lyon.  Mark
argues that the trial court abused its discretion in concluding that Halle's 
cohabitation with another man does not require the reduction or
termination of his spousal support obligation.  We affirm the judgment. 
	[¶2] The Lyons were married in 1974 and divorced in Massachusetts
in 1982.  The divorce judgment incorporated a written stipulation between
the parties that obligated Mark to pay Halle $725 per month as spousal
support until one of them died or Halle remarried.  The stipulation included
an anti-modification provision making it "forever binding" on both parties,
except that the provisions regarding child support and custody were subject
to modification by the court.
	[¶3]  In 1986, Halle began cohabiting with Michael DeMatteo in a
house owned by Halle's mother in Concord, Massachusetts.  They each paid
half of the monthly rent.  From the inception of their cohabitation, Halle and
DeMatteo kept their finances separate but shared household expenses
equally.  DeMatteo moved to Maine in 1993, and Halle soon followed.  They
lived together in another house owned by Halle's mother in Brooksville. 
They pay no rent for the Brooksville house, where they continue to cohabit.
	[¶4]  Mark recorded the Massachusetts judgment in Maine and filed a
motion in Superior Court to decrease or terminate his spousal support
payments to Halle.{1}  After a hearing the court denied the motion.
	[¶5]  We review the court's refusal to modify spousal support for abuse
of discretion.  See Spencer v. Spencer, 1998 ME 252, ¶ 5, 720 A.2d 1159,
1161.  We give unusual deference to the trial court in this area, see Schultz
v. Dellaire, 678 A.2d 46, 47 (Me. 1996), and will only find an abuse of
discretion if the result is "a plain and unmistakable injustice, 'so apparent
that it is instantly visible without argument.'" Day v. Day, 1998 ME 194, ¶ 5,
717 A.2d 914, 916 (quoting Smith v. Smith, 419 A.2d 1035, 1038 (Me.
	[¶6]  A party seeking a modification of a spousal support award must
establish that "a change in circumstances unanticipated by the original
divorce decree" justifies modification.  Haag v. Haag, 609 A.2d 1164, 1165
(Me. 1992).  Normally the sort of change unanticipated by the divorce
decree is a "substantial change in either the payor or payee spouse's
financial condition."  Id.  Cohabitation alone, without a substantial change in
financial circumstances, is not sufficient to justify modification.  See id.
	[¶7]  When an anti-modification agreement has been incorporated into
the divorce decree, however, the party seeking modification must show
more than a substantial economic change.  See Hale v. Hale, 604 A.2d 38, 41
(Me. 1992).  
When the divorce decree incorporates the parties' agreement
that there be no modification of the award of alimony, . . . a payor
spouse seeking to reduce his . . . 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.
Day 1998 ME 194, ¶ 6, 717 A.2d at 916.  The "substantial change" standard
is insufficient because "a divorce decree with an incorporated anti-
modification provision anticipates that the financial circumstances of either
of the parties may change substantially."  Id. ¶ 7, 717 A.2d at 916.  A higher
standard is appropriate because it gives effect to the anti-modification
agreement without divesting the court of its statutory authority to modify a
support award "when it appears that justice requires it."  19-A M.R.S.A.
§ 951(4) (1998).
	[¶8]  In Day, the ex-husband sought to modify his spousal support
obligation after his ex-wife won $4 million in the Tri-State lottery.  The trial
court held that the remarkable alteration in the parties' financial situation
was not enough to justify decreasing the spousal support in light of the prior
agreement to the anti-modification provision.  We affirmed.  "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."  1998 ME 194, ¶ 8,
717 A.2d at 916-17.
	[¶9]  Mark offered the court evidence of a change in financial
circumstances far less significant than that in the Day case.  Ms. Day won a
$4 million lottery jackpot; Halle shares household expenses with DeMatteo,
who among other things pays half of the utilities and gives her $35 per week
for groceries.  Although the trial court in this case did not have the benefit
of our decision in Day, it appropriately considered the anti-modification
agreement in reaching its decision.  There was no "plain and unmistakable
injustice," id. ¶ 5, 717 A.2d at 916, in the court's conclusion that Mark
failed to show a change in circumstances sufficient to justify modification of
the spousal support obligation he had agreed was "forever binding." 
	The entry is:
			Judgment affirmed.
Attorney for plaintiff: Mary N. Kellett, Esq. Law Officers of Ellen S. Best P O Box 386 Blue Hill, ME 04614 Attorney for defendant: Dana E. Prescott, Esq. Prescott, Lemoine Jamieson & Nelson P O Box 1190 Saco, ME 04072
FOOTNOTES******************************** {1} . The parties did not argue in either this Court or in the Superior Court whether Maine or Massachusetts law applies. When parties do not raise choice of law issues, we determine and apply Maine law. See Banker's Life Ins. Co. v. Eaton, 430 A.2d 833, 835 n.1 (Me. 1981).