Note: Decisions of a three-justice panel are not t o 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 motio n to clarify husband’s maintenance obligation under the parties’ stipulated divorce ju dgment. We affirm.

The parties divorced in 2001 following a lengthy ma rriage. The divorce judgment incorporated the terms of the parties’ agreement. Paragraph 13 of the stipulated judgment awarded wife spousal maintenance of $14,000 annuall y until she remarried, cohabitated, or experienced a “substantial change in [her] financia l 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 redu ce 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 co urt 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 agree ment refers to wife’s actual rather than her potential or possible earnings. Husband disputed w ife’s assertion that the scope of “income” under the agreement was so limited as to exclude “p otential 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 deal ing 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, capita l gains, social security benefits, workers’ compensation benefits,” and the like, 15 V.S.A. § 6 53(5)(A)(i), as well as “the potential income of a parent who is voluntarily unemployed or undere mployed.” Id. § 653(A)(iii).2

Husband contends the court erred in holding that th e law precludes the imputation of potential income to a spouse “for spousal support p urposes.” The issue before the court, however, was not whether or under what circumstance s a trial court may generally consider potential or imputed income in awarding spousal mai ntenance. 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 husba nd’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 i ncome 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 “earning s” for purposes of reducing husband’s future maintenance obligation. See Lussier v. Lussier, 17 4 Vt. 454, 455 (2002) (mem.) (holding that terms of stipulated divorce judgment “must be inter preted 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) app lied, but also that “for the purposes of the same paragraph” the agreement did not include poten tial income. Husband cites nothing in the record to suggest that the trial court erred in con struing the parties’ intent to exclude potential income. Accordingly, we find no error.

Nothing in the court’s order denying husband’s moti on 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 re consider, the court observed that the statute defines “potential” income solely in terms of a “pa rent who is voluntarily unemployed or underemployed,” 15 V.S.A. § 653(5)(A)(iii), a defin ition 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 basi s 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 th at 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.