Support - Child and Spousal - § 4-3 (E) - § 4-4
2011---Campbell v. Campbell, Va. Ct. of Appeals, Unpublished, No. 1481-10-2
The reversal of a decree or order resurrects a previous order for pendente lite support only when the initial order that was reversed was void ab initio. The trial court properly refused wife’s request for spousal support arrearages that wife claimed accrued on a pendente lite spousal support award between the time that the trial court rendered a final order of divorce and the time the trial court heard the case on remand from the Court of Appeals. The Court of Appeals’ remand on the first appeal did not deal with spousal support or the underlying authority of the trial court. Thus, the trial court’s final order with regard to spousal support was not void ab initio, and thus, the reversal and remand of that order did not resurrect the trial court’s previous pendente lite support order.
2007---Becker v. Becker, 2007 Va. App. Unpublished, LEXIS 135
Trial court did not err by reimbursing Husband the entire amount of the mortgage payments he made pendente lite because it had increased Husband’s support obligation retroactively to the time of the filing of the bill of complaint.
2007---Ipsen v. Moxley, 49 Va. App. 555
An award of pendente lite support in a suit between parties is an interlocutory order that does not adjudicate the principles of a cause and is therefore not appealable.
2007---Ipsen v. Moxley, 49 Va. App. 555
A Husband voluntarily taking a nonsuit in a pending divorce case does by operation of law terminate Wife’s right to further pendente lite spousal support. However, if there is a juvenile spousal support order that was granted prior to the divorce proceeding, the granting of the voluntary nonsuit automatically and effectively restores the juvenile court’s jurisdiction and operation of its prior support order.
1996---Frazer v. Frazer, 23 Va. App. 358
Abuse of discretion for trial court to find that Wife had need for spousal support and that Husband had ability to pay, yet allow a gap in support payments pendente lite extending to one month after entry of decree.
1991---Weizenbaum v. Weizenbaum, 12 Va. App. 899
Va. Code §20-103 does not require the same considerations on pendente lite spousal support awards that Va. Code §20-107.1 requires for spousal support upon the decree of divorce. Instead, Va. Code §20-103 requires only that pendente lite awards of spousal support be “necessary for the maintenance and support of the petitioning spouse” or “to enable such spouse to carry on the suit.” Pendente lite spousal support may be awarded irrespective of the spouse’s right to receive support following the dissolution of the marriage. Thus, an award of Va. Code §20-107.1 spousal support made pursuant to Va. Code §20-103 criteria would be erroneous as would an award of Va. Code §20-103 pendente lite support based upon the criteria of Va. Code §20-107.1.
1987---Smith v. Smith, 4 Va. App. 148
The dismissal of a pending divorce case by operation of law terminates Wife’s right to further pendente lite spousal support.
2002---Shoustari v. Zamani, 39 Va. App. 517
Wife was not eligible for spousal support where her void marriage was annulled.
1996---Kelderhaus v. Kelderhaus, 21 Va. App. 721
Spousal support not available because marriage was bigamous and consequently void.
1996---McClure v. McClure, 1996 Va. App. Unpublished, LEXIS 639
Right to request spousal support survives ex parte foreign divorce decree.
2010---Stephenson v. Musgrave, Va. Ct. of Appeals, Unpublished, No. 1903-09-3
The trial court erred in refusing to reserve husband the right to seek future spousal support pursuant to Va. Code §20-107.1(D), based solely on husband’s financial situation at the time of the hearing and his attempts to hide assets during the divorce proceedings. Husband’s financial situation at the time of the hearing did not speak to his financial situation in the future, nor can the trial court punish him for his attempts to hide assets by denying him a reservation of the right to seek future support. Where there is no bar to the right of spousal support based on divorce grounds, it is reversible error for the trial court to fail to make a reservation in the decree of the right to seek spousal support in the event of changed circumstances.
2006---Harrell v. Harrell, 272 Va. 652
Trial court erred in adjudging that Wife was entitled to a reservation of the right to request spousal support where there was no valid pleading requesting permanent spousal support before the court. Her bill of complaint was properly dismissed as premature; her amended bill of complaint was properly dismissed for failing to comply with Rule 1:8 to obtain leave of court before filing; her motion for pendente lite support was inadequate to obtain permanent spousal support; and her omnibus motion did not contain an independent request for spousal support and the court did not rule on the request to deem prior dismissed pleadings as a request for permanent spousal support or to consider an amended bill of complaint to be an answer to a cross bill.
1998---Vissicchio v. Vissicchio, 27 Va. App. 240
Where there is no bar to the right of spousal support, it is reversible error to fail to reserve right to receive spousal support upon the request of either party.
1996---Eisenberger v. Eisenberger, Va. Ct. of Appeals, Unpublished, No. 2549-95-2
Trial court denied spousal support and reservation of spousal support on basis of desertion by Husband. Affirmed. (Note: Wife disabled).
1990---Srinivasan v. Srinivasan, 10 Va. App. 728
A reservation of spousal support must be made if requested.
2007---Ipsen v. Moxley, 49 Va. App. 555
A Husband voluntarily taking a nonsuit in a pending divorce case does by operation of law terminate Wife’s right to further pendente lite spousal support. However, if there is a juvenile spousal support order that was granted prior to the divorce proceeding, the granting of the voluntary nonsuit automatically and effectively restores the juvenile court’s jurisdiction and operation of its prior support order.
1997---Bergman v. Bergman, 25 Va. App. 204
Property Settlement Agreement provided that spousal support shall cease if Wife resides with another man. Facts were that Wife did not reside with another man. “Shall cease” means end permanently.
1997---Reid v. Reid, 24 Va. App. 146
An existing order of spousal support survives a subsequent decree of divorce which is silent on the issue.
2011---Cranwell v. Campbell, Va. Ct. of Appeals, No. 2677-10-4
Four factors are used to determine whether one party proves that the other has “cohabited in a relationship analogous to marriage” such that spousal support would terminate: (i) the sharing of a common residence; (ii) intimate or romantic involvement; (iii) the provision of financial support; and (iv) the duration and continuity of the relationship and other indicia of permanency.” Although the trial court has discretion with regard to the weight to assign each factor, the requirement that a common residence be established and shared is a threshold requirement. The later three factors are relevant to determining whether a man and woman who are living together have mutually assumed duties and obligations normally attendant with a marital relationship.
The trial court did not err in finding that wife was not cohabiting with her boyfriend in a relationship analogous to marriage, and thus, did not err in refusing to terminate husband’s spousal support obligation. Wife and the boyfriend resided in different cities, occasionally spent the night together when one party had traveled to the city where the other resided, kept only limited sundries at one another’s respective residences, and did not have keys to one another’s respective residences. Because the parties had not established a common residence, they were not cohabiting.
2009---Tolley v. Tolley, Va. Ct. of Appeals, Unpublished, No. 2736-08-1
Evidence that wife resided in a trailer with another man, slept in a separate room and used a separate bathroom, occasionally wrote checks from her bank account to pay bills for the man after receiving money from him to do so, and occasionally used the man’s vehicle, was insufficient to prove that wife was cohabitating with the man “in a relationship analogous to marriage.” The evidence failed to show that wife and the other man had “mutually assumed the duties and obligations normally associated with a marriage,” failed to prove that the two held themselves out to the community as husband and wife, and failed to show that they were involved in any intimate or romantic relationship with one another.
2007---Stroud v. Stroud, 49 Va. App. 359
Trial court erred in concluding that, for the purposes of interpreting a provision in a Settlement Agreement between Husband and Wife, same sex individuals may not cohabit in Virginia.
2005---O’Hara v. O’Hara, 45 Va. App. 788
Property Settlement Agreement called for spousal support to terminate upon Wife’s habitual cohabitation. Burden of proof is by a preponderance, not the clear and convincing standard pursuant to Va. Code §20-109.
2002---Goldmann v. Goldmann, 2002 Va. App. Unpublished, LEXIS 772
Husband sought to terminate spousal support obligation due to Wife’s cohabitation. Trial court ruled that parties’ agreement negated the Va. Code §20-109 cohabitation provision, and that Husband did not prove cohabitation. The Court of Appeals assumed that the trial court was in error that the agreement negated Va. Code §20-109 cohabitation provision, but affirmed the trial court’s discretion regarding the evidence.
2000---Pellegrin v. Pellegrin, 31 Va. App. 753
Evidence failed to prove ex-Wife cohabited with her boyfriend. Wife’s duty to obtain employment can be inferred from agreement even though not explicitly stated.
1999---Penrod v. Penrod, 29 Va. App. 96
Wife’s long term, intimate and monogamous relationship with male companion amounted to cohabitation within meaning of parties’ separation agreement and warranted termination of spousal support.
1997---Bergman v. Bergman, 25 Va. App. 204
Property Settlement Agreement provided that spousal support shall cease if Wife resides with another man. Facts were that Wife did not reside with another man. “Shall cease” means end permanently.
1996---Min v. Min, 1996 Va. App. Unpublished, LEXIS 700
"Cohabit" means to live together in the manner of Husband and Wife. Schweider 243 Va. 245 (1992).
1995---Buxbaum v. Buxbaum, 20 Va. App. 181
A spouse ordered to pay support must pay according to the terms of the decree, and payments made in excess of the amount ordered are gifts or gratuities and cannot be credited to his obligation to pay the support award.
Husband was not entitled to credit against his spousal support obligation for overpayments of child support made to wife, where the parties never agreed nor had an understanding of any kind that the overpayments of child support were to be applied to future spousal support obligations.
1993---Bandas v. Bandas, 16 Va. App. 427
“Cohabitation” is a bundle of duties, however many more of these duties, responsibilities, rights and incidents are missing in the situation where one of the parties is incarcerated and the other is not. Va. Code §20-91(3) itself presumes that incarceration terminates cohabitation. By use of the word “resumed” in the statute, the legislature has clearly expressed its judgment that in case of confinement for a felony, cohabitation has ceased, and having ceased, must be “voluntarily” resumed.
2007---Barker v. Hutson-Wiley, 2007 Va. App. Unpublished, LEXIS 112
Where Property Settlement Agreement stated that Husband’s spousal support “shall not be modified or terminated except in the sole event of the death of either party” and was therefore silent on the issue of remarriage, the trial court did not err based on the holdings in MacNelly and Hardestythat the Property Settlement Agreement does not clearly, expressly, and unequivocally preserve Wife’s right to spousal support in the event of remarriage.
2003---Hardesty v. Hardesty, 40 Va. App. 663
Husband’s obligation to pay spousal support terminates upon Wife’s remarriage in the absence of an express statement to the contrary. Language that support “cannot be terminated for any reason” is not sufficient for support to continue after remarriage.
1998---Langley v. Johnson, 27 Va. App. 365
Spousal support terminates upon remarriage of recipient in the absence of express language in an agreement that support survives remarriage. Va. Code §20-109.
2011---West v. West, Va. Ct. of Appeals, No. 0448-11-3
The trial court erred in finding that it had no authority on remand to hear motions to modify child and spousal support filed after the original case was remanded to the trial court. The mandate rule does not apply to a modification of child support and spousal support, when the change of circumstances alleged in the modification petitions did not exist at the time of the order initially appealed, nor was the subject of the order appealed.
2007---Robinson v. Robinson, 50 Va. App. 189
The failure of a trial court to make written findings supporting its decisions when awarding spousal support in contested cases constitutes reversible error. (See also Benzino v. Benzino, 52 Va. App. 256).
1996---Nenninger v. Nenninger, Va. Ct. of Appeals, Unpublished, No. 1415-95-3
District Court order superseded by Circuit Court order. Reversal of Circuit Court order, on appeal, does not revive District Court order. Court of Appeals needs transcript of trial.
1993---Reid v. Reid, 245 Va. 409
A party is not entitled as a matter of course to suspension of a judgment for spousal support pending appeal. Va. Code §8.01-676.1(D) authorizes a court to refuse to suspend such orders.
A party is not entitled to restitution of spousal support paid pursuant to an order that is later reversed on appeal.
1997---Scott v. Scott, 24 Va. App. 364
Court has no jurisdiction to award spousal support in a common law separate maintenance action after entry of decree of divorce.