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Spencer v. Spencer
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 252
Docket:	Pen-98-145	
Submitted 
On Briefs:	October 28, 1998
Decided:	November 25, 1998


Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

DONALD A. SPENCER

v.

ANN F. SPENCER

SAUFLEY, J.

	[¶1]  Ann F. Spencer appeals from a judgment entered in the Superior
Court (Penobscot County, Mead, J.) affirming a judgment entered in the
District Court (Bangor, MacMichael, J.).  Ms. Spencer contends that the trial
court erred in terminating Mr. Spencer's obligation to pay spousal support
upon his retirement and in determining that it was not necessary to award a
nominal amount of spousal support in order to preserve a right for Ms.
Spencer to request increased spousal support in the future.  We modify the
judgment and affirm.

I.  Background

	[¶2]  Mr. and Ms. Spencer were married on February 10, 1956.  At the
time of their marriage, Ms. Spencer was 17 years old and Mr. Spencer was
21 years old.  Ms. Spencer did not have a high school diploma and did not
receive one until 1973.  She did not work outside of the home during the
marriage.  The couple had five children, four of whom were still minors at
the time of the divorce in January 1975.  Under the terms of the original
divorce decree, Mr. Spencer paid Ms. Spencer $20 per week in spousal
support and paid child support pursuant to a graduated schedule.  After a
hearing in 1980, Mr. Spencer's child support obligation was eliminated
because the last child had reached 18 years of age, and Ms. Spencer's
spousal support was increased to $30 per week.{1} 
	[¶3]  Mr. Spencer paid according to the 1980 order until Ms. Spencer
filed a Motion to Amend the Divorce Judgment, requesting an increase in
spousal support to $100 per week, in November 1996.  Mr. Spencer
responded by requesting termination of his spousal support obligation due to
his impending retirement.  After hearing, the trial court granted
Mr. Spencer's motion to amend and terminated his obligation to pay spousal
support to Ms. Spencer, effective upon the approximate date of
Mr. Spencer's retirement.  
	[¶4]  Ms. Spencer then filed a Motion for Findings of Fact and
Conclusions of Law and a Motion to Alter or Amend Judgment, requesting
that the court order Mr. Spencer to pay spousal support of $1.00 per year,
thereby preserving her right to seek future spousal support should the
parties' circumstances change.  The trial court issued additional findings of
fact and conclusions of law, clarifying the factors it had considered when
terminating Mr. Spencer's spousal support obligation, but denied
Ms. Spencer's motion to alter the judgment, holding that "[i]t is not
necessary to alter or amend the Court's Order of March 3, 1997, to preserve
the right of the Defendant to request alimony in the future."  From the
Superior Court's affirmance of those orders, Ms. Spencer now appeals.

II.  Discussion

	[¶5]  We first address Ms. Spencer's assertion that the court erred in
deciding that Mr. Spencer should not be required to continue making
regular spousal support payments after his retirement.  "The court, at any
time, may 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).  In
making an alteration or amendment, the trial court considers the same
factors as those considered when determining an award of spousal support,
which are enumerated in subsection one of the statute.{2}  See id.  We review
modifications of spousal support for an abuse of discretion.  See Melanson v.
Melanson, 1998 ME 117, ¶ 6, 711 A.2d 147, 148.  Absent a violation of a
positive rule of law, we will overturn the trial court's decision only if it
results in such a plain and unmistakable injustice as to be instantly visible
without argument.  See id. (citing Williams v. Williams, 444 A.2d 977, 978
(Me. 1982)).{3}
	[¶6]  At the time of the hearing on the Motion to Amend the Divorce
Judgment, the parties had been divorced for 21 years.  Ms. Spencer owned
her home, free of encumbrances.  She had been employed outside the home
for seven years.  Her approximate income was between $13,000 and
$14,000 per year.  She was 58 years old, had little in savings, and had no
retirement provisions from her employment.  She did not know what Social
Security benefits may be available to her upon her own retirement. 
	[¶7]  Mr. Spencer remarried shortly after the divorce and has been
married for 20 years.  At the time of the hearing on the Motion to Amend,
Mr. Spencer was 61 years old.  He had worked 31 years for the 3E Company
as an electrician and served for 26 years in the Air National Guard.  In 1995,
Mr. Spencer earned $44,592 from the 3E Company and $2,989 from his Air
National Guard retirement.  He will receive no retirement benefits from the
3E Company.  He had an IRA with a balance of $49,000 and savings totaling
approximately $27,000.  Upon retirement, his income would decrease
significantly.  He would receive approximately $16,000 per year from Social
Security and the Air National Guard retirement benefits.  His decision to
retire was voluntary and was not motivated by health or other problems. 
Although he indicated that he could, if he chose to, continue to work part-
time as an electrician, he had no plans to work after retirement. 
	[¶8]  In making its decision, the trial court considered "the health of
both parties, the motives of [Mr. Spencer] in planning to retire (he will be
retirement age, he doesn't enjoy working any longer, and he wants to retire
and enjoy the benefits of retirement), the timing of the planned retirement
(age 62), the relative incomes of the parties after [Mr. Spencer] retires, the
ability of [Ms. Spencer] to provide for herself, . . . and the length of time that
[Mr. Spencer] paid spousal support since the divorce." 
	[¶9]  Although Mr. Spencer's support obligation through the last
decade has been modest at best, his impending retirement constituted a
sufficient change in circumstances for the court to amend his spousal
support obligation.  See Sherwood v. Sherwood, 622 A.2d 719, 720 (Me.
1993).  In light of the similarity of the parties' income upon Mr. Spencer's
retirement, the court's decision to effectively eliminate Mr. Spencer's
spousal support obligation is not manifestly unjust.
	[¶10]  Ms. Spencer next contends that the trial court erred when it
denied her Motion to Alter or Amend the Judgment to require Mr. Spencer
to continue paying at least $1.00 per year in spousal support, in order to
ensure that she could seek modification if the parties' circumstances
substantially change in the future.  Her motion was filed pursuant to M.R. Civ.
P. 59(e).  We review decisions on Rule 59(e) motions for error of law or
abuse of discretion.  See Madore v. Maine Land Use Regulation Comm'n,
1998 ME 178, ¶ 15, 715 A.2d 157, 161.  
	[¶11]  The obligation of one spouse to support the other during
marriage and the obligation of a parent to support a child are both
established by statute and exist throughout the marriage and the minority
(or longer) of the child.{4}  The court's authority to enforce those obligations
may be invoked regardless of the absence of an outstanding court order.  In
contrast, the obligation of one spouse to support the other after the end of
the marriage may only be established by order of the court at the time of the
divorce and does not exist as a separate continuing obligation absent such an
order.  When the court completely terminates its order of post divorce
spousal support, the court's authority to require payment of spousal support
in the future ceases.
	[¶12]  Relying on 19 M.R.S.A. § 721(5), however, the court here held
that "it is not necessary to alter or amend the Court's Order of March 3,
1997, to preserve the right of the Defendant to request spousal support in
the future."  Section 721(5) provides that:

The court, at any time, may alter or amend a decree for spousal
support or specific sum when it appears that justice requires it,
except that a court shall not increase the spousal support if the
original decree prohibits increase.  In making any alteration or
amendment, the court shall consider the factors listed in
subsection 1.

19 M.R.S.A. § 721(5)(1981), repealed by P.L 1995, ch. 694, § B-1 (effective
October 1, 1997) (emphasis added).  The court apparently relied on the
language indicating that an amendment may be considered "at any time."
That language, however, refers to an amendment of "a decree of spousal
support or specific sum."  Because the court cannot alter or amend that
which does not exist, a motion to reestablish an award of spousal support
cannot be entertained by a court after the date of complete termination of
an outstanding award. 
	[¶13]  Although there is no magic to the device used, the court must
order at least a nominal amount of spousal support in order for the court to
have the authority to alter or amend that order at a later date.  Accordingly,
we have awarded spousal support of $1.00 per year to "permit the trial
court to modify the award on an appropriate showing of a change in
circumstances."  Bridgwood v. Bridgwood, 538 A.2d 286, 287 (Me. 1988) (a
sufficient improvement in husband's earnings warrants re-opening a spousal
support award); accord Pongonis v. Pongonis, 606 A.2d 1055, 1059 (Me.
1992) (spousal support of $1.00 per year does not establish recipient's
continuing need, but permits a trial court to modify the award upon a
showing of a change in circumstances).  In Pongonis, when awarding spousal
support of $1.00 per year, we noted that it cannot "be said that [the
husband's] present inability to pay spousal support justifies the preclusion of
this issue from future review by the court should [his wife] on proper motion
be able to establish her need and [her husband's] then ability to pay."  Id. at
1059.  
	[¶14] Here, although the trial court believed that it was not necessary
to award a nominal amount of spousal support in order to preserve that
right in Ms. Spencer, it implicitly determined that she should have the
"right . . . to request alimony in the future."  We review the court's decision
to allow a future motion to increase spousal support under the same
deferential standard that we apply to decisions to alter or modify spousal
support, reviewing the decision for abuse of discretion.  See Pongonis, 606
A.2d at 1058.  We will find such an abuse only where "a plain and
unmistakable injustice becomes instantly apparent on review."  Id. (citing
Sweeney v. Sweeney, 556 A.2d 660, 661 (Me. 1989)). 
	[¶15]  The trial court's only statutory guidance on this question is the
direction provided by 19-A M.R.S.A. § 951(4), requiring the court to
consider the same factors that it would consider in making an initial
determination of spousal support.  Although the parties here have been
divorced for 21 years, they were married for 17 years.  During the marriage,
Ms. Spencer devoted her time to the home and raising the children, and
she did not work outside the home.  She remained in the home after the
divorce until the children had all reached adulthood and for many years
thereafter.  At 58 years of age, she is not in good health and is earning only
$13,000 per year.  Her only significant asset is a modest home.  She asserts
that she may be forced to invade that asset to support herself.
	[¶16]  The trial court found that although Ms. Spencer's income is
limited, "after his retirement [Mr. Spencer] will not have significantly more
income than [Ms. Spencer]."  He is retiring, however, not because of ill
health, but because "he doesn't enjoy working any longer."  Accordingly, he
may have the capacity and opportunity to continue to earn income from
employment that exceeds his anticipated retirement income.
	[¶17]  It is apparent that the court decided to eliminate
Mr. Spencer's weekly spousal support obligation because of the anticipated
dramatic reduction in his income.  If that reduction were not to occur or
were to be substantially mitigated by post-retirement employment earnings
or other income, the balance of the factors considered by the court might
shift significantly.  Given Ms. Spencer's limited income and assets, and the
possibility that Mr. Spencer's income will not be as limited as anticipated,
we cannot say that the court's decision to allow Ms. Spencer to seek future
spousal support in the event of a substantial change in circumstances was
unmistakably unjust.  See Ramsdell v. Ramsdell, 1997 ME 14, ¶ 5, 688 A.2d
918, 920-21. 
	[¶18]  Because, however, we conclude that a nominal award of spousal
support is a prerequisite to any future motion to reinstate Mr. Spencer's
obligation to pay spousal support to Ms. Spencer, we modify the order to
reflect the award of $1.00 per year of spousal support to Ms. Spencer.
	The entry is:
Judgment modified to order that Mr. Spencer
shall pay $1.00 per year in spousal support to
Ms. Spencer, and as modified, affirmed.

Attorney for plaintiff:	

Jay H. Otis, Esq.	
P O Box 907	
Brewer, ME 04412-0907	
	
Attorney for defendant:

Lisa Cohen Lunn, Esq.
Vafiades, Brountas & Kominsky
P O Box 919
Bangor, Me 04402-0919