Virginia Family Law Appeals

Court of Appeals Upholds “Lump Sum Alimony” Equal to Mortgage Balance - Durocher v. Durocher

The trial court found “a compelling need” because the wife could not afford the mortgage payments, and also had “long-standing obligations related to the minor children’s successful competitive swimming careers” — i.e., chauffeuring them “sometimes multiple times a day” — that would interfere with having a job. The award was proper “ so that wife would be able to maintain the quality of life enjoyed during the marriage.”

The husband argued that there was no particular need to keep the marital home. But “the parties mutually agreed that wife should continue to reside in the marital home with the children.” And the trial court had awarded her the home.

“We have consistently held that a lump sum spousal support award can be used to pay off a debt,” whether secured or unsecured. And the ED award is a factor to consider in awarding alimony under 107.1.

Durocher v. Durocher, unpublished, 3/31/21

Alimony change not guaranteed even when payor's income down, payee's up

Virginia's Court of Appeals upheld the denial of alimony modification in Jones v. Jones, July 7, 2020, Unpublished. The payor husband had changed jobs -- from $185,000 to $55,000 a year -- because he thought the fault allegations in the divorce case would be fatal to his security clearance. 

The wife's earnings had increased from about $12,500 to $45,000, and the increase was partly because she worked multiple jobs due to the husband not paying alimony until garnished, and the difficulty of getting her share of his retirement annuity payments. In the Court's view, she was still struggling.

Even though the husband had less income, he still had the ability to pay the original award, because he could draw on his Thrift Savings Plan, the Court said. He had in fact complained that he had already found it necessary to do that.

The Court saw both parties'' financial problems as partly the husband's fault, and apparently found that significant and proper to consider.

Court can allow amending pleadings to ask for alimony, even during trial.

Virginia's Court of Appeals has upheld a court's discretionary decision to let a divorce complaint be amended to ask for alimony during a trial, but was careful to note the circumstances that made this substantively fair to the defendant (the potential payor):

• "Both counsel agreed that spousal support was discussed during two pre-trial mediation conferences.
• "Requests for documents related to spousal support were included in discovery requests.
• "The PSA [property settlement agreement] signed by the parties on February 6, 2019" said they "'are unable to agree at this time on the issue of spousal support and [it] will be litigated on March 5, 2019.’ When husband signed the PSA, he was thus agreeing that the trial court would decide the issue of spousal support."

Davis v. Davis, Record No.0190-20-4, Oct. 27, 2020. Va. Court of Appeals, Unpublished.

Boyfriend spending the night once or twice a week does not constitute cohabitation that would terminate alimony -- Harris v. Harris

Harris v. Harris, Va. App. unpublished (11/13/2012)

The husband appeals an order of the trial court denying his motion to modify spousal and child support. Husband alleged that his wife had been habitually cohabiting with another man in a relationship analogous to a marriage for more than one year. Accordingly, husband sought to terminate his spousal support payments pursuant to Code § 20-109(A). On appeal, husband assigns the following errors. The trial court erred by concluding the evidence was insufficient to prove that wife was cohabiting with another person in a relationship analogous to a marriage for more than one year, the trial court erred by misinterpreting and misapplying the applicable common law factors to the facts of this case in its determination of whether wife was cohabiting with another person in a relationship analogous to a marriage for more than one year, and the trial court erred by permitting wife’s lay witnesses to give opinion testimony regarding the ultimate issue of fact. The court addressed the husband's first two assignments of error simultaneously because they are closely related. As we have recently emphasized, “‘the term “cohabit” means to live together in the same house as married persons live together, or in the manner of husband and wife.’” Cranwell v. Cranwell, 59 Va. App. 155, 161, 717 S.E.2d 797, 800 (2011) Indeed, “[t]he requirement that the payee ex-spouse and that party’s paramour be shown to have established and shared a common residence is firmly established in Virginia case law.” “Thus, if two individuals do not share a common residence, they are not cohabiting. Although ‘proof of a common or shared residence does not itself establish cohabitation,’ sharing a common residence is a ‘requirement’ for cohabitation.”  The parties’ daughter, who lived with wife, testified that she saw the boyfriend only once or twice a week and that at times she would not see him for two weeks. The daughter also verified that the boyfriend had a separate house near Charlottesville. The trial court concluded that husband had failed to prove, by clear and convincing evidence, that wife was cohabiting with her boyfriend. The trial court expressly found, “I don’t think they ever established a common residence.” With respect to husband’s third assignment of error regarding the admission of lay opinion testimony, we note that husband’s entire argument on this issue in his brief consists of the following: “It further was material error of law to allow the opinion testimony of lay witnesses as to the ultimate issue of fact, of whether the wife and her paramour were living together, over the objection of the appellant. The trial court committed material and prejudicial error in this regard.” Therefore, there was no error in trial court’s finding that appellant did not prove by clear and convincing evidence that appellee was cohabiting with her boyfriend; appellant’s issue regarding lay opinion testimony waived under Rule 5A:20(e). 

Reservation of alimony jurisdiction means no change in circumstances needed, trial judge rules

A Fairfax Circuit Court judge has ruled that modification of spousal support, under a Property Settlement Agreement’s provision for a reservation of jurisdiction to do so, does not require a showing of a change of circumstances. Jurczuk v. Sessions, 6/11/19, CL2009-7181 and CL-2009-15967. Va. Lawyers Weekly 6/24/19, p. 8. This is not an appellate decision and is not even binding on future rulings of this 15-judge circuit court in other cases, but it is important for people to know about it as it could affect the negotiation and wording of separation agreements and divorce orders.  In the judge’s view, the various “change of circumstances” thresholds for alimony modification under different parts of Code §20-109 do not apply when there is a “reservation of jurisdiction” to award or modify alimony. It reasons that the statutes authorizing modification after a change of circumstances grant new jurisdiction to reopen an issue that has been fully concluded, but a reservation leaves the issue not finally concluded. “The legislative intent is thus clear that ‘reservations’ are not subject to the requirement of a ‘material change in circumstances.’”

When facing this argument in other cases, it may help to point out the context in which the legislature decided to allow reservations. Before it did so, alimony set by a separation agreement could never be modified, while alimony set in a contested trial could always be modified based on a change of circumstances.

If this judge’s view were widely adopted, it would be especially transformative because of the doctrine that it is always error not to grant a reservation to either party, which means that if a party insists on a reservation in negotiation, they get it, or get to trade something for it. It becomes a much more valuable bargaining chip if it is a license to reopen the alimony issue at any time. This will also make potential payors much less willing to agree to reservations, though. People who intend them to only be available after a change of circumstances will spell that out in their agreements; but judges in the future may or may not honor such restrictions.

Court of appeals reverses agreed retroactive modification of a lump sum spousal support award.

Guan v. Ran, 2017 Va. App. LEXIS 30 (February 7, 2017)

The Court of Appeals reversed a circuit court's decision to modify a lump sum spousal support award, which the Court of Appeals concluded was a vested right once the final order of divorce was entered. A vested right is a right belonging unconditionally to a person as a property interest which cannot be taken away. The final order of divorce, which had incorporated the parties' property settlement agreement, required the husband to pay a lump sum payment of spousal support. Pursuant to the property settlement agreement, the husband was given the option to pay over five consecutive years. A year after, the parties entered into an amended property settlement agreement. The amendment waived the wife's right to spousal support. Under the authority of Va. Code 20-109(C) the trial court incorporated the amended agreement on May 13, 2016. In doing so, the circuit court held that the wife had waived the lump sum spousal support from the property settlement agreement and the final order of divorce. The court of appeals held that all of the support was vested once the final order of divorce was entered. Thus, the circuit court erred by retroactively modifying the support. While husband was given the option to pay over five consecutive years, the language of the final order of divorce required that he pay a "lump sum" of spousal support. Thus, the day the order was entered the wife had a fully vested right to spousal support. Once spousal support has vested, the circuit court may not modify the vested portion of the spousal support.

 

Pendente lite support can't be changed retroactively, but needn't be maintained to keep up innocent spouse's unaffordable "lifestyle"

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.

Doctor can reduce work hours and alimony payments at 66; complex property settlement FUBAR by unforeseen events

The Court of Appeals upholds a reduction in alimony for a 66-year-old anesthesiologist who reduced his brutal work hours and planned to fully retire, and who testified that that was consistent with other anesthesiologists his age, in Gadpaille v. Gadpaille, unpublished 7/10/2018.

The trial court in that case also dealt with marital home sales proceeds that were supposed to be offset against a retirement account division and other sums under the PSA, but which ended up being "a deficiency", apparently a negative number, after accounting for repair costs, fire damage, and reduced insurance coverage. The appeals court finds that the trial court did not rewrite the PSA, but rather, correctly "considered the totality of the parties’ agreement as expressed" in the PSA and in a later consent order, and applied that agreement to the unforeseen circumstances.

Alimony despite adultery upheld; no three-judge panel can overturn any precedent

The Court of Appeals upholds an award of alimony despite the recipient's adultery, on grounds of "manifest injustice" consideringthe parties' "relative economic circumstances" respective degrees of fault in the breakdown of the marriage, in  Pattillo v. Pattillo, unpublished 5/29/2018. Just as in Barnes v. Barnes, 16 Va. App. 98, 428 S.E.2d 294 (1993), "fault" for this purpose includes everything leading to the breakdown of the marriage, not just conduct that would be grounds for divorce. It can even include "a gradual breakdown in the marital relationship".

When asked to overrule the long-standing Barnes holding, the Court replies that "Even if we wished to do so, we could not," because of "the doctrine of interpanel accord," meaning that a "decision of one panel . . . ‘cannot be overruled except by the Court of Appeals sitting en banc or by the Virginia Supreme Court." It cites Startin v. Commonwealth, 56 Va. App. 26, 39 n.3, 690 S.E.2d 310, 316 n.3 (2010) (en banc).

In this case, the trial court found that the husband's income was $260,000 per year; and the wife earned $9/hr and could earn only $25,000 per year (the husband's expert's figure), having only a high school diploma and having stayed home with the children during the 18-year marriage. The divorce was caused by the wife's several years of adultery with two family friends and neighbors, but that "Husband’s inattention to Wife and the amount of time he devoted to his career, which often took him away from home at least one week of every month, led to the gradual dissolution of the marriage before Wife committed adultery.” After coming home from work he would merely "acknowledge" the family members and then be "glued to his computer" until bedtime. It continued,

Wife testified that the marriage was a loveless and lonely place as far back as the early 2000’s. Husband was unemotional and both parties were non-confrontational which would result in the parties failing to communicate with each other. Both parties admitted that their lack of communication was a large component in the dissolution of the marriage. Several witnesses who knew Wife and Husband over the years testified that Husband always tried to make Wife happy. However, Wife would complain about Husband’s lack of socializing with her and their friends and his unwillingness to spend money. ...

Husband testified that his lack of communication skills, work schedule and exhaustion contributed to the demise of the marriage. And the [c]ourt does so find. Therefore, even though Wife committed adultery in the years immediately prior to the parties’ separation, the [c]ourt finds that the marriage was irretrievably lost due to gradual dissolution caused by mutual inattention and fault from both parties.

The appeals court did not award fees to either party.

 

Voluntary retirement from 145K job at 58, active volunteering, don't prove earning capacity at 62

The Court of Appeals upholds a refusal to impute income to a 62-year-old retiree who had earned about $150,000 until four years earlier, and is "an active volunteer," in Collins v. Leeds, published, 5/29/18. Husband, a Navy retiree, had worked for Accenture and then as a civilian for the Navy, voluntarily retired from the government at 58, and not looked for employment after that. But the appellant had not offered any other evidence of current earning capacity. "wWife presented no evidence of employment positions currently available to husband or the income he could make in those positions based on his present circumstances." At the time of the trial, "his security clearances had expired, he had not worked in approximately four years, and he was approaching the age when many individuals retire."

The Court points out that the income used for imputation in Stubblebine (1996) had been just five months before the trial, and that it had reversed an imputation based on income just over one year before trial in Harber v. Harber (unpublished 2008). It also says that the Stubblebine imputation was upheld not because of the payor's vigorous unpaid work, which showed only his "physical and mental capacity to be gainfully employed," but because of his recent actual earnings.

Wife also appealed the trial court's alleged failure to consider $311,000 in recent fruitless legal expenses that affected her ability to make ends meet. She had sued a physical therapist for injuring her, and lost at every level, spending about $110,000. She still owed expert witnesses $20,500. She had spent $87,000 unsuccessfully suing her divorce lawyer for malpractice. The other $100K+ was spent in abortive litigation about marital assets several years after the divorce. Wife had translated these expenses into $6,000 per month on her income-expense sheet, but the trial court disregarded them because they were past, not current, expenses.

Wife argues that the trial court was required to consider her “financial resources” pursuant to Code § 20-107.1(E)(1), and her financial resources were “depleted by the hundreds of thousands of dollars in recent litigation costs.” She further argues that, because husband did not produce an expert witness to testify that the lawsuits she filed were frivolous or that the expenses she incurred were unreasonable, the legal expenses should have been included by the trial court as part of her total monthly expenses.

As the party seeking a modification of the spousal support or, as in this case, additional spousal support following the termination of the initial support period, wife bore the burden of showing, “in addition to a material change in circumstances, that the change ‘warrants a modification of support.’” Driscoll v. Hunter, 59 Va. App. 22, 33, 716 S.E.2d 477, 482 (2011) ... Since wife bore the burden of proving the legitimacy and need for these expenses and of their impact on her - 12 - current financial need, the trial court did not abuse its discretion in excluding the expenses incurred in these legal proceedings, which wife repeatedly – and unsuccessfully – chose to pursue. 

Fees: "Because wife’s appeal is so lacking in merit, we grant husband’s request for a reasonable amount of appellate attorney’s fees."