A trial court correctly refused to retroactively reduce the pendente lite support it had ordered, even though it found the amount unaffordable and the failure to pay it non-willful, the Court of Appeals says in Everett v. Tawes, unpublished 7/10/2018. The husband argued that "while Code § 20-107.1(H)(6) states that an unpaid support obligation creates a judgment, there is no similar language in the pendente lite statute, Code § 20-103, and thus the legislature intended that pendente lite support be treated differently." But
The law is settled that support payments vest as they accrue and may not be modified retroactively. See Cofer v. Cofer, 205 Va. 834, 839, 140 S.E.2d 663, 666 (1965); Smith v. Smith, 4 Va. App. 148, 152, 354 S.E.2d 816, 818 (1987).
The Court cites several cases in which pendente lite support that had been paid could not be ordered reimbursed, even if the divorce case was dismissed and the marriage found to be void, and apparently is satisfied that they likewise protect accrued but unpaid payments.
[Though the Court does not point this out, § 20-107.1(H) on the contents of spousal support orders says that "an order directing the payment of spousal support" shall contain the language. It does not limit itself to "final" orders. Though § 20-107.1 as a whole begins by authorizing spousal support "upon the entry of a decree", or in an alimony case begun in juvenile court, that limiting language is in another subsection of 107.1, numbered (A). It is not in framing language whose sentence structure reads onto all the subsections. The statute has no such framing language.]
The wife also appealed, claiming that when the trial court awarded permanent alimony that was far lower than the pendente lite figure, it mismeasured income, failed to consider tax consequences, and improperly considered the property division that the wife received in the divorce, and that as the blameless party, she should keep the "upper middle class lifestyle" she had during the marriage. Affirming, the Court notes the trial court's finding that the couple had lived beyond their means, its proper consideration of the husband's ability to pay, its consideration of expert testimony on how tax payment patterns reduced cash flow and made incomes smaller than they appeared. The statutes not only make property division an explicit factor to consider when awarding alimony, but also encourage and facilitate that by having courts divide property and debt before determining support, it says. The consideration of property division in this support determination was unusually clear, because the monetary award was broken down into monthly payments, and the trial court considered those when measuring both parties' incomes.