Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal. 

ENTRY ORDER 

SUPREME COURT DOCKET NO. 2010-451 

APRIL TERM, 2011 

Thomas Keefe } APPEALED FROM: 

} 

} 

 v. } Superior Court, Bennington Unit, 

} Family Division 

} 

Jessica Howard } DOCKET NO. 35-1-01 Bndm 

 

 Trial Judge: Karen R. Carroll 

In the above-entitled cause, the Clerk will enter: 

Husband appeals from an order granting wife’s motion to clarify husband’s maintenance 

obligation under the parties’ stipulated divorce judgment. We affirm. 

The parties divorced in 2001 following a lengthy marriage. The divorce judgment 

incorporated the terms of the parties’ agreement. Paragraph 13 of the stipulated judgment 

awarded wife spousal maintenance of $14,000 annually until she remarried, cohabitated, or 

experienced a “substantial change in [her] financial circumstances.” The judgment defined the 

latter as wife’s “earning more than $1000 a year of additional income, adjusted for inflation,” in 

which circumstance “the adjustment shall be to reduce the spousal maintenance by the amount 

over $500 in additional income that [wife] earns in any year that there is such a substantial 

change in her financial circumstances.” 

In July 2010, wife filed a motion with the trial court stating that husband had taken the 

position that spousal maintenance should be reduced by the “amount [wife] could be earning” or 

“amounts [she] could receive from Social Security” if she claimed benefits. The motion sought 

to clarify that “additional income” under the agreement refers to wife’s actual rather than her 

potential or possible earnings. Husband disputed wife’s assertion that the scope of “income” 

under the agreement was so limited as to exclude “potential social security income, investment 

income, rental income” and other “accepted types of remuneration.” Following a hearing, the 

court issued an order interpreting the agreement to incorporate the broad meaning of income as 

found in 15 V.S.A. § 653(5)1

 but not to include “potential income.” The court denied husband’s 

subsequent motion for reconsideration. This appeal followed. 

 

1

 This provision in the subchapter of Title 15 dealing with child custody and support 

defines “gross income” to include “income from any source, including, but not limited to, 

income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, 

pensions, interest, trust income, annuities, capital gains, social security benefits, workers’ 

compensation benefits,” and the like, 15 V.S.A. § 653(5)(A)(i), as well as “the potential income 

of a parent who is voluntarily unemployed or underemployed.” Id. § 653(A)(iii). 
2

Husband contends the court erred in holding that the law precludes the imputation of 

potential income to a spouse “for spousal support purposes.” The issue before the court, 

however, was not whether or under what circumstances a trial court may generally consider 

potential or imputed income in awarding spousal maintenance. Indeed, it is settled that the 

court’s discretion is quite broad in this regard. See, e.g., Kohut v. Kohut, 164 Vt. 40, 44 (1995) 

(upholding maintenance award to wife based on husband’s former salary and court’s finding that 

he was voluntarily underemployed); Scott v. Scott, 155 Vt. 465, 470-71 (1990) (upholding award 

of spousal maintenance to wife based, in part, on income that husband was “capable” of earning 

and “imputed” rental income). 

Rather the issue here was whether these parties, in their agreement, intended to include 

wife’s potential income in calculating her “earnings” for purposes of reducing husband’s future 

maintenance obligation. See Lussier v. Lussier, 174 Vt. 454, 455 (2002) (mem.) (holding that 

terms of stipulated divorce judgment “must be interpreted according to the parties’ intent”). The 

trial court concluded that, “for the purposes of ¶ 13” of the parties’ agreement, the general 

definition of “income” under 15 V.S.A. § 653(5) applied, but also that “for the purposes of the 

same paragraph” the agreement did not include potential income. Husband cites nothing in the 

record to suggest that the trial court erred in construing the parties’ intent to exclude potential 

income. Accordingly, we find no error. 

Nothing in the court’s order denying husband’s motion for reconsideration compels a 

different conclusion. Husband had urged the court to adopt the definition of income as set forth 

in 15 V.S.A. § 653(5). In denying the motion to reconsider, the court observed that the statute 

defines “potential” income solely in terms of a “parent who is voluntarily unemployed or 

underemployed,” 15 V.S.A. § 653(5)(A)(iii), a definition which would not appear to apply to 

social security payments that a spouse is eligible to receive having reached the minimum age of 

retirement.2

 We find no error in this regard, and thus no basis to disturb the judgment. 

Affirmed. 

BY THE COURT: 

_______________________________________ 

Paul L. Reiber, Chief Justice 

_______________________________________ 

Marilyn S. Skoglund, Associate Justice 

_______________________________________ 

Brian L. Burgess, Associate Justice 

 

2

 Although, for reasons unclear, husband asserts that the issue of wife’s eligibility for 

social security payments was not before the court, in fact he had expressly argued that such 

payments were “ ‘potential income’ [that] should be counted as income” under the agreement.