Agreements - § 6-10

§ 6-10 Spousal Support

2015---Miller v. Green, Va. Ct. of Appeals, Unpublished, No. 1993-14-3
The trial court erred in ratifying Husband’s unilateral decision to cease paying his spousal support obligation under the parties’ property settlement agreement (“PSA”) prior to filing his motion to modify support. A contract provision can be self-executing only when the triggering event is empirically determined, such as a date certain, reaching a specific age, or death. In contrast, provisions that require subjective determinations, such as elements of proof, interpretation, or witness credibility, cannot be self-executing. Here, the parties’ PSA provided that Husband’s spousal support obligation would terminate upon “clear and convincing evidence” that Wife had been “habitually cohabiting with another person in a relationship analogous to a marriage for one year or more.” The term “cohabitation,” and the phrase “relationship analogous to a marriage” used together with a recognized standard of legal proof indicate the PSA required a judicial interpretation. The clear and convincing burden is not met by convincing oneself, but by convincing a court.

2015---Harris v. Harris, Va. Court of Appeals, Unpublished No. 0006-15-3
The trial court did not err in concluding that it lacked authority to modify or terminate Husband’s spousal support obligation. Although Code of Virginia § 20-109(A) expressly empowers a trial court to modify a spousal support award, Code § 20-109(C) expressly limits that authority when the parties agree to spousal support by stipulation or by contract signed by the parties, Additionally, Code § 20-109.1 empowers a trial court to incorporate by reference contractual provisions into any decree either before or after the entry of a final order. Further, the court may incorporate verbatim the terms of an agreement into the very text of a consent decree. Absent equitable grounds warranting rescission, a contract cannot be judicially modified or terminated at the unilateral request of a party unless the agreement expressly authorizes such relief. Here, the final decree of divorce included the terms of the parties’ agreement regarding spousal support and contained no provision authorizing subsequent modification.

2015 --- Brandenstein v. Brandenstein, Va. Ct. of Appeals, Unpublished, No. 0249-15-4
The trial court erred in finding that a provision in a marital settlement agreement was not self-executing. The agreement set forth a definite and unambiguous formula for determining spousal support and defined the amounts to be plugged into that formula by reference to Husband’s yearly tax returns. Thus, the provision allowed the parties to determine the amounts to be plugged into the formula with certainty and without the involvement of a court.

2013--- Gross v. Gross, Va. Ct. of Appeals, Unpublished Opinion, No. 2214-12-3.
The trial court did not err in holding that spousal support was not modifiable based on a change in Husband’s income, despite a signed, undated, handwritten agreement between the parties, which stated that spousal support was modifiable on that basis. The trial court did not have the authority to modify Husband’s spousal support obligation based on a change in income where the agreement authorizing the same was not referenced in the final agreement by the parties or incorporated into the final decree of divorce. Since neither the final agreement between the parties nor the final decree authorized the modification of spousal support based on a change in Husband’s income, the court could not modify the Husband’s spousal support obligation on that basis.

2013--- Gross v. Gross, Va. Ct. of Appeals, Unpublished Opinion, No. 2214-12-3.
The trial court did not err in refusing to end Husband’s spousal support obligation based on Wife’s waiver of her interest in his retirement. Husband argued that the court should relieve him of his spousal support obligation, since his only income arose from Social Security retirement and disability benefits, and his Wife waived her interest in his retirement benefits by their agreement. The Court determined that Wife’s waiver of her interest Husband’s retirement operated with respect to the determination of equitable distribution but not with respect to spousal support. While Wife’s waiver prohibited the distribution of Husband’s retirement benefits by equitable distribution, it did not exclude the benefits as a source of income to be used for the satisfaction of his agreed-upon spousal support obligation.

2012--- Vannatta v. Vannatta, Va. Ct. of Appeals, Unpublished, No. 0237-12-2
The trial court did not err in limiting wife’s spousal support award to a defined duration. The parties’ settlement agreement stated that wife’s reservation of “the right to petition for and receive spousal support…shall terminate upon the death of either party, her marriage or cohabitation with a partner in a relationship analogous to marriage for twelve consecutive months or more.” The trial court properly held that, though wife’s right to petition for and receive support lasted until one of the cessation events, the agreement did not establish a right to receive spousal support until one of the termination events. Because “petition for” and “receive” were joined by “and,” contractual interpretation requires that those terms be read together and be given equal rank.

2012--- Belcher v. Belcher, Va. Ct. of Appeals, Unpublished, No. 2226-11-2
The trial court erred in denying husband’s motion to terminate spousal support and holding that the termination events in Va. Code §20-109, specifically wife’s habitual cohabitation with another person in a relationship analogous to marriage, did not apply to the parties where the only termination event expressly stated in the parties’ separation agreement was wife’s remarriage. In cases involving cohabitation, remarriage, or death, the agreement must expressly preclude termination of spousal support on one or all of the statutory grounds. If it fails to do so, Va. Code §20-109 provides that spousal support shall terminate upon the occurrence of any of the cited events. Here, because the agreement did not expressly preclude cohabitation as a possible termination event, the trial court erred in refusing to terminate husband’s spousal support obligation upon wife’s cohabitation with another person.

2012--- Dailey v. Dailey, 59 Va. App. 734
The trial court erred in finding that husband’s retirement and the commencement of payments to wife from his pension that resulted therefrom were reasonably foreseeable when the parties entered into their settlement agreement, and thus erred in finding that the retirement was not a sufficient basis for husband’s request to reduce spousal support.  The parties’ settlement agreement provided that spousal support would be modifiable based on a material change in circumstances.  The parties stipulated at trial that husband’s retirement constituted a material change, but the trial court determined that the change was reasonably foreseeable, given that the parties’ settlement agreement specifically provided for wife to receive a portion of husband’s pension upon retirement.  However, uncontested evidence established that, at the time the parties entered into their settlement agreement, Husband had no plans of retiring.  Moreover, the settlement agreement was silent on the question of whether spousal support would continue or terminate upon husband’s retirement.  Thus, the Court of Appeals found that the agreement furnished no basis upon which to conclude that the parties reasonably contemplated or foresaw the effect of husband’s retirement upon his spousal support obligation, and therefore remanded the case to determine whether husband’s unforeseeable retirement warranted a modification in spousal support.

2011--- Driscoll v. Hunter, 59 Va. App. 22
The trial court did not err in holding that husband’s retirement and resulting reduction in income did not warrant a modification of spousal support, despite the fact that husband was having to invade the principal of certain assets in order to meet his monthly expenses and support obligation. No special consideration is given to income from wages or salary over income from a payor’s other sources. The crucial question, once a material change in circumstances has been shown, is the ability of the supporting spouse to pay. The fact that the payor may have to draw from other sources, such as the principal of investment or savings accounts, in order to make his spousal support payment, does not by itself require the trial court to suspend or reduce his spousal support obligation. Evidence revealed that, despite the reduction in income that resulted from his retirement, husband had significant and sufficient assets with which to maintain his support obligation.

2010--- Howard v. Howard, Va. Ct. of Appeals, Unpublished, No. 2987-08-2
Trial court erred in holding that the spousal support amount set by the court encompassed all of husband’s financial obligations to wife, where the court had previously incorporated agreements entered into by the parties, each of which obligated husband to pay certain debts and expenses in addition to spousal support. Although the incorporated agreements required husband to pay definite expenses in addition to monthly spousal support, the agreements did not define the amount of monthly spousal support. The trial court held a hearing to set the monthly support amount, and subsequently issued a letter opinion which, while setting the monthly support amount, also expressly noted that the amount was in addition to certain expenses and debts owed by husband pursuant to the previously incorporated agreements. However, when the trial court entered its final decree pursuant to that letter opinion, the decree contained no mention of the additional debts and expenses, and instead stated only the monthly support amount. When wife moved the court to clarify the decree, the trial court held that the monthly support amount encompassed all of husband’s financial obligations to wife. The Court of Appeals held that the trial court’s clarification was in error, as it operated to alter an incorporated agreement in direct contravention of Va. Code §20-109(C).

2010--- McCoy v. McCoy, 55 Va. App. 524
Trial court properly held that husband's obligation to provide health insurance for wife under the terms of the parties' property settlement agreement was not a form of spousal support, and thus not automatically terminable by husband in the event that wife remarried. The health insurance provision in the agreement was entirely separate from the provision regarding spousal support, and unlike the spousal support provision, was not contingent on some future breach of the agreement by husband. Husband's obligation to provide health insurance arose upon the signing of the agreement.

2009--- Stroud v. Stroud, 54 Va. App. 231
Settlement Agreement provision providing for termination of spousal support “upon cohabitation…in a situation analogous to marriage” is not self-executing.  A provision is self-executing only when the triggering event is empirically determined, such as a date certain, reaching a specific age, or death.  Provisions that require subjective determinations, such as elements of proof, interpretation, or witness credibility, cannot be self-executing simply because of the need for judicial resolution.  The terms “cohabitation” and “analogous to marriage” have a precise legal meaning, and are therefore subject to judicial interpretation.  Only if and until a court makes such a determination, is husband entitled to discontinue making support payments under the terms of an agreement.

2008--- Stacy v. Stacy, 53 Va. App. 38
Trial court erred in treating Husband’s mortgage payment obligation pursuant to a Property Settlement Agreement as spousal support under Va. Code §20-109, based solely on language stating that the mortgage payments were “in the nature of support” and thus non-dischargeable in bankruptcy.  Having expressly and definitively waived rights to demand or receive spousal support in the preceding paragraph of the Property Settlement Agreement, language prohibiting discharge in bankruptcy did not evidence intent by the parties that the mortgage obligation be construed as a spousal support obligation.  A contract is not ambiguous merely because the parties disagree as to the meaning of the terms used, Plunkett, 271 Va. 162 (2006)

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.    

2007--- Whitney v. Whitney, 2007 Va. App. Unpublished, 203
In a contract dispute about support obligations, the trial court lacked the authority to postpone the accrual of interest and to decree that Wife was not entitled to post-judgment interest in accordance with Va. Code §8.01-382.  Husband had an obligation to pay support, including health insurance when due, and his failure to do so created a judgment by operation of law. Wife is entitled to interest on the judgment for those support payments as provided by statute.

Trial court erred in failing to award full accounting expenses associated with the divorce to Wife because it was inconsistent with the parties’ agreement. Trial court did not err in not awarding Wife expenses that were not contemplated by the terms of the agreement.

2006--- Bryant v. McDougal, 49 Va. App. 78
Trial court erred in holding that parties’ oral agreement constituted a valid property settlement agreement under Va. Code §20-155 where Husband did not acknowledge that the oral settlement included all terms that needed to be discussed but did say that he would sign a written Property Settlement Agreement and where both parties drafted and circulated proposed Property Settlement Agreements but neither party signed the other’s.  Unambiguous language of Husband’s assent to the terms of the oral settlement agreement manifested his clear intention that his affirmation of the terms was subject to inclusion in a formal Property Settlement Agreement.

2006--- Miller v. Miller, Va. Ct. of Appeals, Unpublished, No. 1168-06-3
Trial court did not err in denying Wife’s motion to increase spousal support. The term that each party would be responsible for his/her medical insurance premium, as found in the property settlement agreement, was not ambiguous.  Even though Wife’s medical insurance costs increased, she was not entitled to an increase in spousal support under the terms of the agreement she signed while represented by counsel. 

2005--- Galloway v. Galloway, 47 Va. App. 83
Parties’ Property Settlement Agreement was not unconscionable but instead was valid and enforceable.  Even though the agreement gave Husband 94% of the marital property, there was no evidence of overreaching or oppressive behavior by Husband, and at no time did Wife indicate she was under duress or that Husband exercised any undue influence over her to sign the agreement.  Voluntary waiver of financial support did not per se warrant the agreement as unconscionable where Wife inherited $30,000 cash and a home with no debt valued at $275,000 and where she testified she would have no difficulty in becoming re-employed.

2003--- Smith v. Smith, 41 Va. App. 742
Trial court erred in terminating husband’s spousal support obligation upon wife’s cohabitation with another man on the sole basis that the agreement entered into by the parties, despite contemplating termination of support only upon the death of either party or upon remarriage by wife, was merged into the final divorce decree and thereby subject to alteration by the trial court. While the distinction between merged and non-merged agreements is important in terms of available enforcement remedies, merger alone does not empower a trial court to later modify the substance of the contractual agreement entered into by the parties. That Va. Code §20-109 did not provide for a default termination of spousal support upon cohabitation at the time these parties entered into their agreement does not matter, as the law in force at the date of making a contract determines the rights of the parties under the contract. The law effective when the contract is made is as much a part of the contract as if incorporated therein.

1999--- White v. White, 257 Va. 139
Trial court erred in construing Husband’s agreement to pay the mortgage on the marital residence in 120 equal installments to the bank as an obligation to pay spousal support after the mortgage debt was satisfied.  Husband ceased paying monthly mortgage payments when Wife sold house and used the proceeds to satisfy the remaining mortgage debt.  Despite language in final divorce order characterizing the incorporated agreement as “an agreement…with respect to maintenance and support,” the agreement contained no provision for Husband to make payments to Wife, and evinced no intent by the parties that the obligation would survive the satisfaction of the mortgage debt, regardless of the manner in which the debt was extinguished.

1996--- Pendleton v. Pendleton, 22 Va. App. 503
Va. Code §20-109   precludes court from modifying spousal support where the parties contractually agree upon amount of spousal support and agreement has been incorporated into the final divorce decree.  Trial court does not have the authority to modify support, except as provided in the agreement.  Parrillo, 1 Va. App. 226 (1985)

1996--- Scott v. Scott, 1996 Va. App. Unpublished, 759
Under Va. Code §20-109, in absence of language so allowing, court may not modify support set forth in agreement incorporated in decree.  McLaughlin, 211 Va. 365 (1970)

1996--- Umstead v. Umstead, 1996 Va. App. Unpublished, 452  
Parties may enter into agreement (containing clear and express language) for spousal support to continue after remarriage of recipient.  Gaylor, 20 Va. App  83 (1995)

1994---Sanford v. Sanford, 19 Va. App. 241
The fact that the parties’ property settlement agreement did not obligate them to exchange their income tax returns did not divest the court of authority to order such an exchange. Although Code § 20-109 bars a trial court from imposing any condition except in accordance with the parties’ agreement, it only restricts the action a trial court may take where the parties have agreed upon a matter. It does not prohibit a trial court from ordering a course of action upon a matter that the parties do not address in their property settlement agreement, provided the court is not otherwise precluded from doing so and the course of action is appropriate.

1980--- Cooley v. Cooley, 220 Va. 749
Marital Property Settlement Agreements entered into by competent parties upon valid consideration for lawful purposes are favored in the law and such will be enforced unless their illegality is clear and certain.

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