Support - Child and Spousal - § 4-1 - § 4-1 (B)

§ 4-1 In General
(A) Enforcement
(B) Gross Income
(C) Imputed Income
(D) Non-Conforming Payments
(E) Survival
(F) Arrears & Interest
(G) Conditions of Support Orders
§ 4-2. Child Support
(A) Duty of Support
(B) Deviation
(C) Education Expenses
(D) Duration of Support
(E) Jurisdiction
(1) Personal
(2) Subject Matter
(3) Transfer
(4) Uniform Interstate Family Support Act (UIFSA)
(a) Registration of Foreign Order (UIFSA)
(b) Duration of Support (UIFSA)
(F) Medical Expenses
(G) Modification
(H) Over Payment
(I) Retroactivity
(J) Spousal Support
(K) Support of Other Children
(L) Appeal
(M) Child Care Expenses
(N) Child Support Guidelines
§ 4-3. Spousal Support
(A) Criteria/Award
(1) Generally
(2) Lump Sum vs. Periodic
(3) Property Distribution Considerations
(B) Duration
(C) Fault of Spouse
(D) Modification
(E) Pendente Lite
(F) Right to
(G) Reservation of Right
(H) Termination
(1) Generally
(2) Cohabitation, Effect of
(3) Remarriage, Effect of
(I) Appeal
(J) Jurisdiction
(1) Personal
(2) Subject Matter
(3) Transfer
(4) Uniform Interstate Family Support Act (UIFSA)
§ 4-4. Separate Maintenance

Chapter 4


§ 4-1. In General

(A) Enforcement

2015—Milam v. Milam 65 Va. App. 439
Trial court erred in including as a condition of Father’s suspended jail sentence for contempt of court that upon receipt of a sworn affidavit from Mother stating that Father failed to make payments due to her, a capias would issue for Father and he would be taken into custody to serve the suspended sentence. Code of Virginia § 19.2-306 entitles a person under suspended sentence to a judicial hearing prior to revocation of the suspended sentence. Because the condition imposed by the trial court failed to provide Father with notice of his alleged violation and an opportunity to be heard on the violation prior to his incarceration, it was error to include it.

2011—Nkopchieu v. Minlend, 59 Va. App. 299
Trial court erred in holding, based on Court of Appeals decision in Hoy v. Hoy, 29 Va. App. 115 (1999), that it did not have the authority to enter a QDRO for purposes of garnishing father’s retirement account to satisfy $28,000 child support arrearage. Neither ERISA nor Virginia state law prohibit the attachment of a retirement account for purposes of satisfying state domestic support obligations. Hoy was distinguishable on facts, as the wife in that case attempted to re-open a divorce decree that had already become final for purposes of collecting spousal support arrearages, whereas here, the divorce case was ongoing.

2011—Adcock v. Commonwealth of Va., DSS, DCSE, 282 Va. 383
Mother’s suit to establish and collect child support arrearages was barred by 20-year statute of limitations set forth in Va. Code §8.01-251(A). The youngest child had emancipated and the ongoing support obligation had ceased more than 20 years prior to Mother’s suit to collect arrearages. Because support payments become judgments by operation of law on the date each payment becomes due but goes unpaid, the statute bars suits to collect such judgments if filed more than 20 years after the judgment. Court of Appeals reversed.

1997—Street v. Street, 24 Va. App. 14
Trial court erred in refusing to allow husband to present evidence of his inability to pay before holding him in contempt for failure to pay child support. A defendant charged with out-of-court contempt must be given the opportunity to present evidence in his defense, including the right to call witnesses. In Virginia, inability to pay is a defense to a charge of contempt. Once nonpayment of a support order is established, the burden is on the obligor to provide justification for the failure to comply.

Where a payor spouse is unable to pay his support obligations, there is a significant difference between the test for modification of support under Antonelli and the test for avoiding conviction in a contempt proceeding. Contempt proceedings are controlled by the standard set forth in Laing, which states: “It is true that the inability of an alleged contemnor, without fault on his part, to render obedience to an order of court is a good defense to a charge of contempt. But where an alleged contemnor has voluntarily and contumaciously brought on himself disability to obey an order, he cannot avail himself of a plea of inability to obey as a defense to the charge of contempt.” Thus, although a payor spouse who is unable to pay support obligations due to a good faith, voluntary reduction in income is unlikely to have his support obligations modified under Antonelli, this same payor spouse cannot be found in contempt unless evidence shows that the reduction in income was also contumacious.

1992—Bennett v. Comm. of Va. DSS, DCSE, 15 Va. App. 135
The twenty-year bar on actions to enforce judgments, set forth in Va. Code §8.01-251, does not apply to actions to collect arrearages resulting from an ongoing, unliquidated spousal support obligation, as such an obligation is not a liquidated money judgment for a sum certain, as contemplated by the statute. However, the statute does apply to bar enforcement of judgments for spousal support obligations which have been reduced to liquidated judgments for a sum certain, such as lump sum awards.

The doctrine of laches may not be interposed by the obligor spouse to a spousal support arrearage claim.

1979—Cutshaw v. Cutshaw, 220 Va. 638
The court held that where a contract to support the children after their minority was incorporated into a support decree by a divorce court, the court has authority to enforce, but not modify, the parties' agreement.

(B) Gross Income

2020---Pendli v. Gajula, Va. Ct. of Appeals, Unpublished, No. 1813-19-4
The trial court did not err in excluding Husband’s monthly property rental income from his gross income for purposes of calculating ongoing child support when the evidence showed that the amount of the mortgage payments on the rental property exceeded the amount of rental income.

2020---Chaudhry v. Chaudhry, Va. Ct. of Appeals, Unpublished, No. 0869-19-4
The trial court did not err in determining that husband owed wife a total of eleven thousand two hundred seventy-six dollars ($11,276) per month in both child and spousal support despite his assertion that his net monthly income after taxes was only nine thousand one hundred thirty-two dollars ($9,132). The court determined that husband had other financial resources to make his court-ordered payments. For example, the court found that husband’s family business was not suffering financially, that husband and his father used various corporations, entities, and properties to manipulate and move funds, that husband hid his money, that husband offered to immediately bring all liabilities current if wife returned home and dropped the suit (an amount between eighty and one-hundred thousand dollars ($80,000-$100,000), and that husband had a lot of money.

2019---Hodges v. Hodges, Va. Ct. of Appeals, Unpublished, No. 0718-19-2
The trial court did not err in using the most current income information for which husband provided documentation to average his income for purposes of calculating spousal support. The trial court was not required to accept husband’s uncorroborated testimony that his wage income had decreased in the intervening 23 months, nor was it required to accept husband’s meritless argument that spousal support could only be based on the years in which the evidentiary hearing took place.

2018---Wilson v. Slivka, Va. Ct. of Appeals, Unpublished, No. 1044-17-4
The trial court did not err in accepting Mother’s testimony that her gross monthly income for child support calculation purposes was only $1,000 although the evidence demonstrated that her business had a substantial cash flow. Mother supported her testimony with profit and loss statements, income and expense statements, and tax forms. Mother also testified that her profit and loss statements did not accurately reflect expenses she actually incurred and explained in detail about both her business and personal expenses. The trial court deemed Mother’s testimony credible and properly determined the amount of Mother’s gross monthly income.

2017---Tidwell v. Late, Va. Ct. of Appeals, No. 1388-16-4
When calculating child support pursuant to the guidelines, the trial court erred by averaging Father’s income over four years, rather than using his current income. A trial court’s starting point in determining the monthly child support obligation of a party is the amount as computed by the schedule found in Code of Virginia § 20-108.2, which is the presumptively correct amount pursuant to Code § 20-108.1. The amount of child support under the child support guidelines must be based on the parents’ actual gross income. After determining the presumptive child support amount based on the guidelines, the trial court may deviate from the guideline amount based on the factors set forth in Code § 20-108.1. A trial court may decide that, based on the facts of a particular case, it should deviate from the child support guidelines because a party’s current gross income does not adequately represent a party’s ability to provide child support. Here, the trial court erred because it did not first calculate a presumptive support amount based on Father’s current year income, and then, after that, explicitly analyze whether higher income in prior years manifested a greater earning capacity that rendered the presumptive award inappropriate or unjust.

2016—Carrano v. Carrano, Va. Ct. of Appeals, Unpublished, No. 0693-15-4
Where Wife was entitled to receive $1,800 per month in spousal support per the parties’ settlement agreement, but Husband had not been paying that amount and was not ordered to pay the full amount according to the trial court’s purge plan for Husband’s spousal support arrearages, the trial court erred in including the full $1,800 monthly support in Wife’s gross income for purposes of child support. Under Code § 20-108.2(C)(4), a court must calculate gross income based on spousal support received, rather than amounts due but not actually received.

2014—Oley v. Branch, 63 Va. App. 681
The trial court erred by failing to include Mother’s federal Pell Grant in its calculation of Mother’s gross income. Code of Virginia § 20-108.2(C) defines gross income to include all income from all sources. Unless specifically excluded, income from any source is subject to inclusion. The statute does not specifically exclude federal education grants, such as the federal Pell Grant, from inclusion in an obligor’s gross income.

The trial court did not err in excluding Mother’s personal injury settlement, paid as a lifetime annuity, in its calculation of Mother’s gross income. For a personal injury settlement to be considered income under Code § 20-108.2(C), a defined portion of the settlement must generate income to the recipient rather than merely compensate for a past injury. If a personal injury settlement does not expressly apportion damages, a trial court cannot speculate how the settlement’s proceeds are apportioned among the various elements of damages. Here, Mother’s settlement did not apportion damages, and the record contained no evidence that the settlement generated income to her as lost wages or lost income.

The trial court did not err in excluding Mother’s free housing arrangement when it calculated her gross income. Although Code § 20-108.2(C) defines gifts as income, Mother’s free housing, by itself, was not a gift under the statute. A gift is property that is voluntarily transferred to another without compensation. Here, no property was transferred to Mother. Rather, the housing arrangement amounted only to a decrease in Mother’s overall spending. Moreover, Father failed to provide evidence of the actual value of the room Mother received as free housing.

2012—Wright v. Wright, Va. Ct. of Appeals, Unpublished, No. 0275-12-2
Even if a spouse seeking support possesses a sizeable estate, the law does not require the spouse to invade that estate to qualify for spousal support. Where wife had income from dividends and interest, the trial court did not err in declining to include as income the unrealized growth in the principal of the account.

2012—Vannatta v. Vannatta, Va. Ct. of Appeals, Unpublished, No. 0237-12-2
The trial court did not err in including as gross income to husband an annual bonus that husband might potentially receive. Although Va. Code §20-107.1(E)(1) requires a court to base support on current circumstances, it also requires the court to consider the earning capacity of the parties. Despite husband’s argument that the trial court erred in including as gross income a bonus which he was not guaranteed to receive, evidence revealed that he had received the bonus every year since 2008.

2012—Ponnekanti v. Ananthapadmanabhan, Va. Ct. of Appeals, Unpublished, No. 0592-12-4
Trial court did not err basing child support on father’s current income, despite father’s stated intentions to return to India and accept a lower-paying job. “Support must be based upon ‘circumstances in existence at the time of the award’ and not upon speculation or conjecture.’” (citing Brooks v. Rogers, 18 Va. App. 585 (1994)).

2011—Barrett v. Comm. of Va., DSS, DCSE, Va. Ct. of Appeals, Unpublished, No. 1382-10-3
Trial court erred in failing to include gifts that mother had received in mother’s gross income for purposes of determining child support. Though the mother testified that she had intended to repay the parties who provided her with money, she admitted that she had received no “loans” in her discovery responses, and further evidence supported that these monies were gifts. That the gifts were received while mother was receiving no child support from the father was not a sufficient basis to refuse to include them in mother’s gross income. If the trial court had wished to consider that fact, it could have deviated from the presumptive guideline amount, rather than incorrectly computing that amount.

Trial court did not err in refusing to award father deductions to his gross income for reasonable business expenses incurred by father in maintaining rental properties, where evidence revealed that the father had not been able to rent the properties, and thus, had received no income from which reasonable business expenses could be deducted.

2010—Broadhead v. Broadhead, Va. Ct. of Appeals, Unpublished, No. 0923-09-2
A trial court should only include conditional bonuses in gross income for child support purposes when, at the time of the evidentiary hearing, the conditions are reasonably likely to be met for the bonus to vest. The relevant circumstances are those “within the immediate or reasonably foreseeable future,” not what “may happen in the future.”

Here, the trial court did not err in refusing to include father’s conditional bonus in his gross income. In order for the bonus to vest, father needed to remain employed with his current employer for an additional seven months. However, the court noted that father had worked for at least four different employers in the past six years, and father testified that, while he had no present intention to leave his job prior to the vesting of the bonus, he was looking for a job closer to his children and would quit his current job if offered a suitable position closer to his children’s Virginia home.

2008—Brandau v. Brandau, 52 Va. App. 632
Trial court did not err in including in Husband's income the "wages" that he paid to his children from his S-Corporation. No evidence suggested that the children were bona fide employees or that they earned the "wages" that Husband deducted as a business expense. Furthermore, Husband intended the wages to be a gift to the children, and Husband's own expert conceded that claiming these "wages" as a business expense was improper accounting.

2008—West v. West, 53 Va. App. 125
Trial court erred in failing to recalculate child support based on Father's actual gross income at the time of the entry of the final decree of divorce, despite the fact that the parties had stipulated to a lower figure for Father's gross income in earlier proceedings.

2008—Nadolski v. Nadolski , Va. Ct. of Appeals, Unpublished, No. 1781-07-2
Trial court erred in concluding that wife's income for purposes of child support was $2,500 per month, based on evidence that while being employed with an auto dealership for the four months prior to trial, she had earned a total of $10,000, but had taken one month of unpaid vacation to travel. To conclude that $2,500 per month was the average income, the court would have to presuppose that wife would be on unpaid vacation for three months out of a given year. That presupposition was not supported by the record or advocated by wife.

2007—Didio v. Didio, Va. Ct. of Appeals, Unpublished, No. 0204-07-2
Trial court erred in considering proceeds husband received as student loans as income for purposes of support. Nothing in Va. Code § 20-108.2(C) suggests that loans should be considered as income. Imputation of income should be based on factors related to earning capacity, not one’s ability to obtain a loan.

2007—Duda v. Hunt, Va. Ct. of Appeals, Unpublished, No. 0511-06-4
Trial court erred in failing to allow a deduction of one-half of self-employment tax from calculation of Father's gross income.

2007—Ericson v. Ericson, Va. Ct. of Appeals, Unpublished, No. 2411-06-2
Trial court erred when it failed to calculate the presumptive amount of child support Father owed under guidelines based upon his gross income of $34,200. While the trial court explained in writing its rationale for imputing additional income, this otherwise valid consideration was made before the trial court expressly determined the amount of child support Father owed based upon his actual income.

2005—Bruemmer v. Bruemmer, 46 Va. App. 205
Trial court did not err in excluding from husband’s gross income for child support purposes mandatory retirement contributions. The decision to deduct and the amount of the deductions were determined by a vote of his employer partnership, not by the discretion of any individual partner, such as husband. Moreover, the funds deducted would not be available to husband for a number of years after his retirement or withdrawal from the firm.

2000—Goldhamer v. Cohen, 31 Va. App. 728
Gifts, including inheritance, should be included in the gross income computation.

1999—Howe v. Howe, 30 Va. App. 207
Cash gift to Father was gross income for child support calculations. Cash value proceeds from life insurance policy were not gross income where evidence did not distinguish income from return of capital.

1999—Mosley v. Mosley, 30 Va. App. 828
Though social security payments received by Mother for the benefit of child can be counted against Father's child support arrearages, they cannot be counted against his spousal support arrearages.

1997—Dotson v. Dotson, 24 Va. App. 40
The income of the party who is required to pay, however such income is derived or derivable, is the fund from which the allowance for support is made. (citing Ray v. Ray, 4 Va. App. 509 (1987)).

1996—Carmon v. DSS, Div. Child Support Enforcement, 21 Va. App. 749
Trial court did not err in including as gross income the monthly rental value of the room and board that a party received in exchange for services she provided to her landlord.

1996—Frazer v. Frazer, 23 Va. App. 358
Spouse's voluntary contributions to retirement account should be included in his gross income for both spousal and child support purposes.

1996—Barrs v. Barrs, Va. Ct. of Appeals, Unpublished, No. 2093-95-1
In reaching its decision, income averaging is an acceptable method of determining a spouse's ability to earn.

1994—Smith v. Smith, 18 Va. App. 427
Where the evidence shows that the realization of capital gains was an irregular occurrence and not contemporaneous with the support proceeding, the trial judge does not abuse his discretion by failing to include the gains in calculating gross monthly income.

1993—Huger v. Huger, 16 Va. App. 785
Not error for trial court to refuse to consider retained earnings of husband's Subchapter S corporation as income to Husband.

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