The Virginia Court of Appeals upholds denial of an alimony reduction to a payor whose income decreased by over 50% at retirement, even though the payee's income-expense calculations showed a substantial monthly surplus, while the payor's deficit requires his new wife to contribute her income to pay the alimony. Giambattista v. Giambattista (3/13/18), unpublished.
The Separation Agreement had stipulated that retirement would be a change of circumstances, but that does not necessarily mean that the changed circumstances will always justify a modification, the Court notes.
The ex-husband's income was around $140,000 at the time of the divorce. Four years later he retired at age 56, which the Court seems to find reasonable because of the physical rigors of the job as a Secret Service agent. His income, now including his share of his retirement, dropped to around $72,000, before deducting alimony. The ex-wife's earning capacity was limited by a disability, and with her employment and her share of his retirement her income was about $35,000, not counting alimony. Alimony remains $3,100 per month, which is $37,200 a year.
The Court says the payor admits in his brief that a substantial reduction is not warranted; that he is only asking for a reduction of $800 per month. It seems insensitive to the fact that when you're looking at incomes in the $30,000s, $800 per month may well be substantial.
The Court notes that the payor did not feel too poor to recently make a $91,000 down payment on a home, and that he might have been able to find a job after retirement that would not involve such a major pay cut.
It also cites his new wife's testimony that she would help him with the alimony payments if she had to; for the Court to cite and effectively penalize this willingness seems to create several incentives, none of them good.
The payor objected that by the wife's own monthly expense calculations, the current alimony gave her a surplus of $709 a month. But:
This Court has previously rejected the notion that a payee-spouse is only entitled to receive an amount of support that results in an equalization of income and expenses.
In Robinson v. Robinson, 54 Va. App. 87, 95-96, 675 S.E.2d 873, 877-78 (2009), the Court held that a trial court did not err by awarding a spouse $5,000 per month in spousal support, creating a monthly surplus of more than $1,100. The Court held that nothing prohibits an award from exceeding the expenses needed if the evidence and statutory factors support it. Id at 97, 675 S.E.2d at 878. In so holding, the Court recognized and rejected the “erroneous contention that . . . a sum sufficient for allowing [a spouse] to maintain her standard of living enjoyed during the marriage constitute[s] a cap or limit on the amount of spousal support the trial court could award.” Id. at 95-96, 675 S.E.2d at 877. Such an argument patently disregards the thirteen factors listed in Code § 20-107.1(E) that trial courts are bound to consider. Id. at 96, 675 S.E.2d at 877. The trial court had considered factors such as the wife’s contributions to the family as the primary child-rearer, her management of the household, and her lack of significant employment prospects when it rendered the $5,000 award. Id. at 96-97, 675 S.E.2d at 878.
Miller v. Cox, 44 Va. App. 674, 607 S.E.2d 126 (2005), is also instructive. In Miller, this Court rejected the argument that an award of support in excess of a spouse’s stated expenses is a per se error of law. Id. at 681, 607 S.E.2d at 129. The wife in Miller earned approximately $156,600 per year between her salary, investment returns, and spousal support, and her yearly expenses were approximately $125,000. Id. at 682-83, 607 S.E.2d at 130. The trial court based its ruling on the fact that the parties had constantly strived during the marriage to devote a significant chunk of their take-home pay to retirement savings, and the trial court determined that the wife could not be precluded from continuing with that practice post-divorce. Id. at 686, 607 S.E.2d at 131-32.
Even more recently, in Gordon v. Gordon, No. 2038-16-2, 2017 Va. App. LEXIS 164 (Va. Ct. App. July 11, 2017),1 this Court again reiterated that trial courts possess the broad discretion to award spousal support amounts that result in a spouse receiving a sum greater than her monthly expenses, so long as the trial court considers the statutory factors. Id. at *7-10. The wife in Gordon was the primary child-rearer and “lacked any meaningful employment history or marketable skills.” Id. at *10. Even though she was “physically and mentally able” at age 57, the trial court also declined to impute income to the wife despite the expectation that she would begin giving dance lessons. Id. at *11. This Court held that the trial court had appropriately applied the statute and did not err in awarding $12,000 per month in spousal support. Id. at *10-11.
Accordingly, the Court reiterates some of the factors besides monthly budgets that justified the original award, such as non-monetary contributions and how those affected earning capacity.