How did the McKees get back into court – the Court of Appeals? By en banc rehearing, of course, but you have to examine the full text of the new opinion dated August 5 to see that. In the published 17-page en banc opinion in McKee v. McKee, ___ Va. App. ___, ___ S.E.2d ___, 23 VLW 273 (8/5/08)(en banc) there seemed to be two real issues: the refusal to impute income to the alimony-seeking wife of the 17-year marriage, and the trial judge’s letting her claim mortgage expenses in seeking alimony when her sole ownership of that real estate resulted from the husband’s signing over his half in the couple’s separation agreement.
The Court of Appeals en banc majority says that it was not error to refuse to impute payee income. Yes the wife had worked as a respiratory therapist, but that was 15 years ago. The husband got a vocational expert to testify that she should be able to return to work, get credentialed and start earning good money. But the expert testimony did not satisfactorily address the requirements of being re-licensed in this state, or the child care she would supposedly need to obtain for three minor children.
Going over the rules of payee imputation once again, the Court of Appeals states that a support-seeking spouse who has not unreasonably refused to accept employment gets a reasonable time to find employment. And here’s one of the several tricky parts: the trial court has to look to current circumstances, or those within the immediate or reasonably foreseeable future, when it makes these calls. Going beyond the way it was characterized in the briefs, the court tries to take the trial judge’s whole pronouncement, in context, and not pick out a couple of instances indicating he might have got the law all wrong. Doing that, the Court of Appeals says, you can see that the judge did not say that the wife never has to return to work, but only that the law doesn’t require her to do so immediately. The trial court properly took into account that it was a 17-year marriage in which the wife by mutual agreement had not worked for the last 15 years. The trial court did not apply an erroneous legal standard, nor otherwise abuse its discretion in this regard. The Court of Appeals majority finds no credible evidence of voluntary unemployment in the Record below, or indeed any proof of the wife’s earning potential. The trial judge expressly found the expert testimony incredible, and it was irrelevant because the wife is not licensed in Virginia, and cannot practice her profession without credentials.
The question whether it was error for the judge to let the wife claim her monthly mortgage payments when showing her expenses, and thus her need, seems to bring up whether Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635 (1992), is still the law. But not so, the full Court says, for the Gamble case decided a very “narrow issue” on “effect” and is highly distinguishable. (As we all know, the Virginia Court of Appeals doesn’t overrule prior cases, but most of us have known for some time not to go around citing Gamble for any broad, clear and definite propositions). So is it unfair to let the wife get such a double dip, or is it fundamentally unfair to keep her from listing her mortgage payment as an expense on the question of need while letting the husband list his own $5,000 mortgage payment as an expense which reduces his ability to pay? In this opinion, that’s a rhetorical question.
The Court of Appeals goes over all the factors to paint in the background against which this fairness question must be viewed. There is the traditional-marriage agreement over 15 years ago which kept wife at home minding the three kids, the size and cost of the house, which supposedly demonstrates a high standard of living, and then the agreement itself. In the agreement, the wife was given the entire former marital home free from any claims by the husband, with a promise by the wife to “indemnify and hold Husband harmless from any liability” from this mortgage. But of course the husband’s argument that that means he can’t be made to help her pay for it (in the form of alimony) fails. He’s not being hit for liability “on” the mortgage when being made to help her pay it. That agreement clause just means the wife will keep the lender from coming after him for a debt that she has assumed. The court refers to Bomar v. Bomar, 45 Va. App. 229, 237, 609 S.E.2d 629, 633 (2005). Particularly persuasive was the fact that the agreement itself included a clause stating that “this agreement does not contain any provision as it relates to spousal support,” and the parties also agreed that “the terms of this agreement shall have no effect on his or her claims or positions related to these matters...., and that neither waives any claim or position he or she has, related to such matters....”
Judge Haley, joined by Judge Clements, dissented on the imputation point. Statements made by the trial judge, they say, showed that a clearly wrong legal standard was applied. They note that that judge never acknowledged that the wife had an obligation or duty to return to work within a reasonable time. It seemed to the dissenters that the judge really ruled that wife had no duty ever to return to work.