Virginia Family Law Appeals

Stiles v. Stiles: CHILD SUPPORT – MODIFICATION – PENDING AND ENDED CAUSES – “FINAL ORDER” – LONG-PENDING MODIFICATION CASES – RETROACTIVITY – LACHES - MALPRACTICE TRAPS.

Many a court clerk will look at anything that says “Final Order,” or “And This Order Is Final,” and treat it as an ended cause, with all that that entails.  But what about a final order that disposes of only one claim, by one party, when another claim, by the other party, is still pending?  The fact that the judge issued what she called a “final order” gratifying the ex-husband’s petition to eliminate alimony for cohabitation that did not mean that the mother’s simultaneously-pending petition to increase child support (because husband had received a lot of money) was also killed off. 

Robbins v. Robbins: PROPERTY DIVISION – VALUATION – RIGHT TO REAPPRAISAL AND RE-VALUATION – MARITAL AND SEPARATE – SOURCE OF FUNDS – TRACING – SUFFICIENT EVIDENCE OF SOURCE AND OF DEPOSIT-WITHDRAWAL RATIOS – ALIMONY – RELATIONSHIP TO CHILD

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.

Stewart-Payne v. Payne: CHILD SUPPORT – MORTGAGE PAYMENTS ON HOUSE OCCUPIED BY WIFE AND OWNED BY HUSBAND.

In what would seem on the surface to be a fairly common-sense case, the Court of Appeals reversed a trial judge who (A) ordered the husband to pay the mortgage on a house husband owned while wife and child were occupying it and credited those payments against the child support he had ordered, but then (B) failed to change this order after the house was damaged by fire and could no longer be occupied.  What exactly the judge did in Stewart-Payne v. Payne, 22 VLW 1061 (unpublished, 1/28/08), was to order the husband to keep paying the mortgage on the uninhabitable home and receive a credit toward his child support for doing so – thus not paying in cash the full amount of child support to the wife.  (This arrangement was part of a pendente lite consent order.)

Broadhead v. Broadhead

CHILD SUPPORT – REDUCTION PETITION – IMPUTATION TO PAYOR – VOLUNTARY UNDEREMPLOYMENT – NEED TO RETAIN CUSTODY AS PAYOR’S EXCUSE – REDUCTION PETITION.  The Court of Appeals handed down an important and unusual payor-imputation case known as Broadhead v. Broadhead, 51 Va. App. 170, 655 S.E.2d 748, 22 VLW 1033 (1/29/08).  It is remarkable for several things, one being that a trial court holding of “voluntary underemployment” of a payor was reversed. 

Imputing income to the voluntarily under-employed.

    The Supreme Court reversed Antonelli v. Antonelli, 11 Va App 89, 396 SE2d 698 (1990), in which the Court of Appeals had finally found a case of good-faith job change. Though the father said he had changed from straight salary with one stockbroker to commission with another in order to better his children's future along with his own, and then lost heavily in the stock market crash, the Court severely lectured him that he had gambled and lost, and would get no reduction and have to pay all arrears on the original amount. See also Strailman  v. Strailman ,  6 VLW 438.

The "Two-pony rule" in child support cases

  In the unpublished ruling on the case of Redskins owner and professional horse breeder Jack Kent Cooke (Cooke v. Cooke, 5 VLW 1195 (Va. Ct. App., 5/21/91)), some important rulings were made.  The Court rejected the wife's argument that a child support award was not appropriate in view of the husband's enormous wealth and the baby's supposed entitlement to funds enabling her to preserve the standard of living to which she would like her to have become accustomed had the marriage survived.  The Court observed that many of the expense items claimed for the baby daughter might well be appropriate in later years as the child matures and has social contacts and activities, but that child support awards must be based on current circumstances, being modifiable on the basis of future events. 

Child Support Guidelines: 4 cases ca. 1991

    The Virginia Court of Appeals held in Milligan v. Milligan,  6 VLW 195 (7/23/91), that the legislative adoption of tabular guidelines is in itself enough "change of circumstances" to justify upward modification of child support. 

    In Alexander v. Alexander,  406  S.E. 2d 666, 6 VLW 147, it was again emphasized how important it is that a trial court determine the "presumptive amount" from the guideline charts before determining anything else.  The case was reversed for failure to resort to the guidelines before determining that the parties' recent written separation agreement controlled as to the amount of child support.  Upon remand, the Court emphasized, the separation agreement provision may be a factor considered upon the decision whether or not to vary from the guideline amount. 

However, from Scott v. Scott,  6 VLW 350, it looks like the agreement cannot even be a factor.

And yet in Watkinson v. Henley,  6 VLW 429, where a father was not invoking the SA to keep child support low, but seeking to escape a SA provision that tied him to a support figure above  guideline, the trial judge was reversed for following the guideline rather than regarding the court as bound by the agreement.

PROPERTY DIVISION — PUNISHMENT OF CONDUCT — CRIMINAL CONVICTIONS AND DISSIPATION — PAYEE IMPUTATION — NEW JOB OFFER REQUIRING DISTANT MOVE.

The same court that has so sanctimoniously scolded moral condonation of adultery in some cases finds plenty of scope for legitimate punishment of immoral conduct in the case of a man who incurred criminal convictions and sentences, causing his wife great embarrassment and the family assets considerable expense.  The commissioner, upheld by the circuit court, found that the husband's convictions had a "devastating impact on the marriage."  Wife's symptoms of great emotional distress included weight loss, and treatment for stress and depression resulting from the scandal.  The trial court awarded the wife 90% of the marital property, plus a monetary award, and the Court of Appeals finds that proper. So it is perfectly all right, once the state has punished a criminal offender through the criminal law system, for the divorce courts to punish him again for the same conduct, but  the trial court "did not impermissibly use husband's criminal conduct punitively," whatever, exactly, that means.  The $20,018 award was a dissipation remedy, for the husband had withdrawn $59,000, of which $20,018 was approximately half, from his retirement accounts to pay restitution costs.  It was also all right for the court not to impute income to the wife, because when her job was eliminated, the employer's offer of a new job was in Norfolk, and that would have meant moving when the children were in school in Fairfax.  Also upheld is the $20,000 fee award.  Budnick v. Budnick,   18 VLW 1137 (4/20/04).

"Earned Income Credit" & Alimony as child-support factors.

Two minor issues as to calculation of guideline support were resolved in Sargent v. Sargent, 20 Va. App. 694, 460 SE2d 596, 10 VLW 314 (8/22/95).  First, "Earned Income Credit" potentially available to the payee  when she files her income taxes is not a payee imputation factor.  Second, although mother's alimony under a prior decree is a legitimate variation factor, that does not include pendente lite alimony paid in the instant case.

CHILD SUPPORT – IMPUTATION – VOLUNTARY UNDEREMPLOYMENT – GUIDELINES – PRE-SCHOOL AS CHARGEABLE DAY CARE – FEE AWARD BASED ON BAD LITIGATION CONDUCT.

The Court of Appeals approved a trial judge’s imputing $4500 per month income to a husband in Versprille v. Versprille, unpublished, 20 VLW 1155 (2/14/06). The factors that counted against this man were his earning that figure before losing his job, his college degree in financial management, and the fact that the work he had obtained was in an appraisal business owned by his sister. That added up to voluntary underemployment, and the imputation was not an abuse of discretion. The interesting question of what to call day care services that the providers call schools, calling the fees tuition, was also an issue. In this case in child in the pre-school was five years old, and the Court of Appeals upheld the judge’s designating a part of the “tuition” as work-enabling day care. Nor was the $1250 fee award an abuse of discretion, considering all the lengths the husband went to in order to avoid providing financial and other relevant and necessary information. Obstructive behavior caused the wife to have to spend a great deal in lawyer fees to compel discovery, and move for sanctions. She also got an award of her fees on appeal.