The Court of Appeals in McKee v. McKee, 22 VLW 1061 (unpublished, 1/29/08), faced an abuse-of-discretion issue: whether the alimony amount was beyond wife’s need and above husband’s ability to pay.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.
In this particular case, the wife had gotten the house in the separation agreement. Therein she agreed to “be solely responsible” for the mortgage payments and indemnify and hold husband harmless “for any liability.” She had to refinance to do it, thus arguably creating a new post-agreement liability, but that doesn’t matter. The mortgage payment, the Court says, is not part of the legitimate “home care expenses.” The trial judge here had actually said on the record that he didn’t think the double-dip was logical or fair and he never liked doing it, but then he tried to distinguish this situation on the ground that the mortgage payment amount was a reasonable equivalent of the rental the wife would otherwise have to pay as a legitimate housing expense for herself and the kids. Another note of caution: despite the majority’s broad, tough wording, is it really ruling only partly and narrowly here? No. Is the presence of the agreement a distinguishing factor? Yes. What the majority finally says is “given this agreement, the circuit court erred....” It then says that the statement about legitimate “home care expenses,” was one that “contradicted our precedent of Gamble.”