Virginia Family Law Appeals

Mom quits 2nd job; no imputation despite admitting support change was one reason; needn't punish honesty

The Va. Court of Appeals upheld a decision not to impute income to a mother from a second job that she had quit. The reasons she gave included child care, children's illness, spending time with children, healing a troubled relationship with one child, and how it would affect her child support. The trial court didn't err in not penalizing the mother for her honesty about that last reason, the Court says. The trial court had also inferred that divorce litigation expenses had been a reason for taking the job in the first place. Illetschko v. Illetschko, 9/12/2017.

Court can require proof of income & exercise of shared-custody time, but can't pull numbers out of air.

A trial court in a support modification may use a previously-used income figure when it finds no credible evidence of changed income; and may use the sole custody guidelines when a father does not prove that he is exercising his court-ordered parenting time that would otherwise justify the shared-custody guidelines; but may not decide to use a higher income figure without citing any evidence that it was the father's income or his earning capacity, the Va. Court of Appeals rules in Hatcher v. Matthews, unpublished, 9/5/17. The father had been found non-credible in earlier child support proceedings, and did not present evidence to document his claims, and this justified deference to the trial court's discretionary decision not to simply take him at his word.

Citing one questionable or un-listed factor doesn't make custody ruling reversible - Lijeron v. Lijeron

A trial judge considered several facts related to the best-interests factors listed in Va. Code § 20-124.3, and cited them along with concerns about the father's maturity because he lived with his parents at 37. Father argued on appeal that his maturity and economic independence were irrelevant or improper factors. The Court of Appeals says that he made no argument to support this assertion, and "even if his unfounded claim is true, this would only prove that the Court considered an otherwise appropriate factor in an improper manner, which is an entirely different matter." The trial court had properly discussed each statutory factor, and other factors it found relevant.

This ruling affirms that it is legitimate for a court to weigh other factors not expressly listed in the custody-factors statute; i.e., that Factor 10, "Such other factors as the court deems necessary and proper to the determination", is not a dead letter. It protects judges who speak their minds about their observations, impressions and findings that don't necessarily fit into the first nine factors, or that do fit into them but are not described using the exact words of the statute.

Lijeron v. Lijeron, unpublished, 9/5/17.

U.S. S.Ct.: No remedy for converting earned normal retired pay to non-divisible disability pay

The U.S Supreme Court decided in Howell v. Howell, May 15, 2017, that any kind of disability pay could not be divided, directly or indirectly, even where the servicemember, 13 years after retirement and 14 years after the divorce, took regular retired pay that had already been divided by a court order, and converted 20% of it to disability pay when retiring with a 20% disability rating.

That reflected existing law, but it also clarified that a state court could not order the retiree to compensate or indemnify the former spouse for this change. It disagreed with most state courts that had considered the question, and with the U.S. Solicitor General.

This conversion of a percentage of retired pay is a “V.A. Waiver.” It is required when applying for partial disabled pay with less than a 50% disability rating.

However, the Howells did not have any provision for such reimbursement in their PSA. The outcome could well have been different if they did.

Possible remedies:

Virginia has a statute allowing later rewording of a pension-division order “only for the purpose of establishing or maintaining the order as a qualified domestic relations order or to revise or conform its terms so as to effectuate the expressed intent of the order.” Code § 20-107.3 K 4. But it is hard to see how the Howell decision leaves any room for that which Virginia’s appellate courts would try to use.

In some other states, this kind of change has been used as grounds for modifying alimony. In re Marriage of Jennings, 138 Wash. 2d 612, 980 P.2d 1248 (1999);  Longanecker v. Longanecker, 782 So. 2d 406 (Fla. Dist. Ct. App. 2001). 

But state courts have also ruled that an alimony modification cannot simply be a dollar-for-dollar reallocation of the retired pay that the disability conversion has taken away. In re Marriage of Cassinelli, 4 Cal. App. 5^th 1285, 210 Cal. Rptr. 3d 311 (Calif. Ct. App. 2016); In re Marriage of Perkins v. Perkins, 107 Wn. App. 313, 26 P.3d 989 (Wash. Ct. App. 2001).

Both kinds of state-court holdings make sense in light of Virginia law and the purpose of spousal support. A spousal support award cannot be used for property-division, and would not probably not be a modification of an equitable distribution order within the scope of Va. Code § 20-107.3 K 4, even though it usually would be modifying literally the same order (since alimony and retired-pay division are part of the divorce decree even when there is a separate retired-pay order to send to DFAS). But alimony modification – as long as jurisdiction is reserved for it – is properly based on changes in overall income, and a V.A. Waiver could produce enough of a change in the former spouse’s income that spousal support modification could be warranted. But the modification would look at all income and expenses at the time.

What to do:

In trials and in settlements, reserve jurisdiction to modify or award spousal support, even if it is limited to a V.A. Waiver situation. That would make sense where retired pay is a major expected part of the former spouse’s income, and is effectively a substitute for alimony.

Keep using indemnification/reimbursement clauses in PSAs.