Virginia Family Law Appeals

Wife with separation agreement, no support still a dependent for worker's comp, death benefits

The fact that a wife waived alimony and child support in a written separation agreement does not control whether the separated (or “separated”) wife will get the death benefits from husband’s workmen’s compensation provisions if he dies in a work-related accident, the Court of Appeals held in Sifford v. Sifford, ___ Va. App. ___, ___ S.E.2d ___, 26 VLW 555 (10/11/11). What matters, the Court of Appeals held as it overturned a denial by the Workmen’s Compensation Commission, is whether or not this wife is “an actual dependent” of the deceased husband.  Code §65.2-515(A)(1) in fact conclusively presumes that wife is a dependent if she has not voluntarily deserted or abandoned him, or if she lives with him, and at that time is actually dependent on him.  And as for actual dependency, the Court explains, all she needs to establish is a partial dependency.  The remaining requirements are that she prove husband contributed to her support with “some degree of regularity,” and that she relied upon him for reasonable necessities.  The Commission had already found that the husband paid all household expenses, that the wife paid for groceries out of the joint checking account, and that she paid no rent in the marital home.  Also, this is a case in which after the formal separation all the spouses did was to move to separate bedrooms, with the husband going on paying health insurance on the wife and the child and still paying all other expenses of the household. Nor does it make any difference whether the Court of Appeals agrees with the Commission’s determination that that was the intent of the agreement, because the effect of the no-alimony agreement was to provide regular support for the wife too.  She didn’t need alimony all that much with this actual marital support continuing.

Campbell case: Wife shoots husband, gets his family business reclassified as marital

ALIMONY FACTORS – WIFE SHOOTING HUSBAND – EFFECT OF ADMISSION – APPEALS — “LAW OF THE CASE” – PROPERTY DIVISION – MARITAL AND SEPARATE – PRESERVING SEPARATE IDENTITY – PROPORTIONS AND PERCENTAGES – GIFTS.  Perhaps it is not difficult to see why the Court of Appeals had to write a 35-page (unpublished with dissent) opinion.  It is, though, difficult to sort out the tangled fact situation, and even harder to say anything useful or helpful – let alone clever – about this (we hope) oddball Albemarle case.  Be advised, though, that the Court of Appeals does, in this post-remand appeal in Campbell v. Campbell, 49 Va. App. 498, ___ S.E.2d ___ (2007), actually say that you can deny spousal support, and even divide property more favorably to a husband, for conduct contributing to the dissolution of the marriage.  You could say that wife here did that, since she admittedly shot the husband “multiple times,” so that he ended up in a coma, and needed 22 days in the hospital.  Of course she had her various accusations against him as well, and later tried to retract her admission and blame the shooting on her son, but that didn’t work.  The big fight was apparently about the property division, as husband had been in partnership with his brother in a sawmill business since 1957, married wife in 1973, and in 1977 opened another sawmill and finally incorporated in 1983.  The parties finally separated rather dramatically with the aforesaid shooting incident in 1996.  The thing has been going through the courts at least since early 2002.  Wife had argued that there was an agreement with her husband to give her his first sawmill if he didn’t drop the divorce litigation, but after years of hearing this, the trial court said that she had failed to prove an enforceable agreement there. The 2010 divorce decree (after remand) adjusted her share of property from 28% to 38% and increased the valuation of the first lumber business by almost $8,000 (but we are talking multi-millions here).  Husband kept on alleging that his stock in the two companies had to be separate.  Though husband appealed the inclusion of that stock in marital property as well as the trial court’s valuation, the Court of Appeals this time affirmed, and as to the wife’s attempt to relitigate who shot husband, “law of the case” precludes that.  (Why? Because she didn’t try to raise that particular question in her last appeal).  Yes there is a “material change of facts exception,” but it does not apply if we see a party creating conflicting testimony for strategic purposes.  The trial court had actually ruled that the shooting amounted to constructive desertion, and actually terminated pendente lite alimony on that ground, and the Court of Appeals does not disturb that, saying the Court properly applied §20-107.3(E) factors.  The Court this time upheld the marital classification of the stock in both companies, as well as its valuation, reasoning that the husband failed to prove that his pre-marital interest in the business or businesses had retained its separate identity, since he had acquired numerous assets in various ways.  It classified the $3.2 million appreciation during the marriage as marital, since his marital property and his personal efforts contributed.  Money for the second lumber company was supplied by a loan secured on marital property, and he did not prove that he repaid the loans out of separate property.  And in this $17 million-assets case, the Court of Appeals says that the $7,826 increase in valuation was “de minimis.”

Judge Powell dissents, pointing out several of what he considers errors in the majority analysis.  It was not right to focus on the date of incorporation when classifying the original stock as marital, since the business was started way before the marriage.  Nor do individual equipment assets of the business justify calling it all marital, since §20-107.3(A)(3)(d) gives a method for making these determinations, and that method requires wife to prove the increased value supposedly contributed by marital property and/or her personal efforts.  Campbell v. Campbell (unpublished), 26 VLW 306 (8/9/11).