An ambiguous decree which stated in one place that wife's alimony would end upon her remarriage, and in another place that it would end upon husband's remarriage, was ambiguous enough to deserve correction of this conflict as a "clerical error," nunc pro tunc, the Court of Appeals found in White v. White, 17 VLW 48 (6/11/02).
Continue reading "White v. White: DECREES – CORRECTION OF ERRORS. " »
The Court of Appeals in Robbins v. Robbins, 48 Va. App. 466, 632 S.E.2d 615, 21 VLW 265 (8/1/06), revisited a subject that has been kicked around several times before, the re-valuation of real estate that has increased dramatically in value while the litigation went on. In doing so it provided welcome clarification on just what the “law of the case doctrine” is and is not.
The high-earning doctor in McKee v. McKee, 22 VLW 1061 (unpublished, 1/29/08), then had the nerve to argue that the wife’s other claimed expenses were way too high. He was challenging particularly a $627 car payment, $750 for savings, repairs that were supposed to be taken care of by the refinancing, $950 groceries with $300 meals out, $345 gasoline, $186 cable and $60 for financial advice. The court majority said that wife has the burden of supporting the figures she claims and she presented insufficient evidence to support any of these expenses, so it was error to grant alimony based on them.
The Court of Appeals in McKee v. McKee, 22 VLW 1061 (unpublished, 1/29/08), faced an abuse-of-discretion issue: whether the alimony amount was beyond wife’s need and above husband’s ability to pay. And under this heading there’s an immensely interesting discussion of the issue, never quite resolved in the Gamble case (14 Va. App. 558, 421 S.E.2d 635 (1992)) in any truly understandable way, of whether a spouse can receive real estate in a property division and then come in and ask for alimony to pay the debt on it – i.e., the ongoing mortgage payments. The Court of Appeals majority cuts through the ambiguities and contradictions and forthrightly declares that the crucial wording in Gamble means exactly what it says. A court can’t award a double-dip by awarding the house as property and then taking the mortgage payments into account when fixing a level of spousal support. One who takes property takes the debt on it as well.
For those who are convinced, after reading and taking seriously a number of published opinions from past years, that payee imputation is just not ever going to happen, the Court of Appeals astounds and amazes again. In a remarkable unpublished opinion of 22 pages with a dissent, the appellate court, reversing a trial court, is either remarkably mean to the mother or extraordinarily fair to the father, depending on how you see these things.
An unpublished case that reversed an alimony award demonstrates how income imputation has become such a minefield not only for lawyers but for trial judges (who at least can’t be sued for malpractice, but only be reversed), with its shifting burdens and standards of proof – not the same thing remember – that one wonders sometimes why counsel even undertake it any more.
After some Virginia appellate opinions approving belated alimony as a remedy when the other spouse defaults on an obligation to cover a marital debt assumed in exchange for some quid pro quo in a separation agreement, most Virginia practitioners assumed they knew just what to do when a bankruptcy discharge of that same assumed obligation is then sought: go immediately into court to seek a belated spousal support award as a remedy. But they would all be wrong, according to the recent opinion of the Court of Appeals in Rogers v. Rogers, 51 Va. App. 261, 656 S.E.2d 436, 22 VLW 1082 (2/12/08). What’s wrong with it now? If the husband (as it was in this case) has not yet actually received a discharge of the debt, then it would be speculative to assume he would get it – even though the debt specifically assumed by and assigned to him has still never been paid, bankruptcy has been filed for, and that debt specifically listed by the debtor.
For those who have always wondered what happens to the money represented by an alimony award that is reversed on appeal, the question was answered in the second trip to the Court of Appeals of Reid v. Reid, 6 VLW 349. When the husband sued to get his alimony back on remand, the Court of Appeals held that alimony once paid, even though under an invalid trial court decree, is forever lost and cannot be reclaimed.
In another trip to the Court of Appeals for Mr. and Mrs. Kaufman, ___ Va. App. ___, ___ S.E. 2d ___, 6 VLW 349 it was held that a lump-sum award in addition to periodic spousal maintenance was no good in a case where the wife also got everything else. No special justification was shown.
A lump sum was considered all right in Poliquin v. Poliquin, 406 Va. App. 401, ___ S.E. 2d ___, 6 VLW 71, because of the number of special factors that the judge considered and listed as having been considered, but it was stressed that the judge had to also give a one-dollar reservation for future periodic alimony.
Another trip to the Court of Appeals for Mr. and Mrs. Westerberg (see 9 Va. App. 248, 386 S.E. 2d 115) resulted in a holding that the judge on remand was not authorized to make a lump-sum award of spousal support based only on evidence of the value of separate property that the other spouse held. ___ Va. App. ___, 405 S.E. 2d 638 (1991).
The Court of Appeals reversed an alimony award because, although it was in a contested case, the trial judge did not comply with the §20-107.1(F) requirement of written findings supporting the award and its amount. The judge did a lot, but not precisely what the statute requires or not enough, according to the opinion at 22 VLW 295 (8/7/07). The wife argued that it had not in fact been a contested case, because the husband consented (in the end) to alimony, but the Court of Appeals applied “contested” in the traditional sense and pointed out that, although the parties resolved many issues by stipulation before trial, they went to trial on this issue.
