Support - Child and Spousal - § 4-2 (H) - § 4-3 (A)(1)

(H) Over Payment

2008---Harber v. Harber, Va. Ct. of Appeals, Unpublished, No. 0559-07-1
The trial court erred when it considered expenses that wife incurred on behalf of the parties’ two emancipated children when determining spousal support. Wife’s monthly rent and utility expenses, as well as other expenses, were inflated as a result of the two adult children living with her. Because husband no longer had a duty to provide support for the children, the trial court should not have considered the amounts by which wife’s living expenses were inflated as a result of her sharing a home with the two adult children.

2007---Nordstrom v. Nordstrom, 50 Va. App. 257
A trial court has no statutory or inherent authority to order restitution of child support payments pursuant to an erroneous order.

In the event of an over-payment, a credit towards any future support may be appropriate. (dicta)

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.

1961---Newton v. Newton, 202 Va. 515
Husband agreed to pay child support to his Wife. He reduced the amount he was paying after Wife refused to let one child visit him. The court held that Husband was not entitled to reduce the payment. The court also held that Husband was not entitled to recover overpayments that he had made. The court held that voluntary payments made under a mistake or in ignorance of law, but with full knowledge of all the facts or with the means of such knowledge, and not induced by any fraud or improper conduct on the part of the payee, could not be recovered.

(I) Retroactivity

2020---Chaudhry v. Chaudhry, Va. Ct. of Appeals, Unpublished, No. 0869-19-4
The trial court did not err in granting child support retroactive to the date of wife’s initial complaint. Husband misunderstood Virginia Code Section 20-108.1(B) and believed that a pendente lite order or hearing was required to establish a retroactive obligation. Here, wife filed her initial complaint for divorce and requested both pendente lite and permanent child support therein. Per Virginia Code Section 20-108.1(B), the court found that this enabled wife to obtain a retroactive date to that of her initial filing.

2019---Pittman v. Pittman, Va. Ct. of Appeals, Unpublished, No. 1850-18-2
The trial court erred by not awarding child support retroactively to the date of the commencement of the proceedings as required by Va. Code § 20-108.1(B). Although Husband paid the mortgage payment on the marital residence, utilities, real estate taxes, HOA dues, health insurance costs, $500 a month in spousal support, and the costs required for wife to obtain a Forensic Accountant to review husband’s records to determine his income, all in accordance with pendente lite orders, neither of the pendente lite orders referenced these obligations as “child support.”

2018---Moret v. Moret, Va. Ct. of Appeals, Unpublished, No. 1286-17-3
The trial court did not err in calculating Father’s pendente lite child support arrearage retroactive to August 2012 (when Father filed the last of several motions to modify child support during the divorce proceeding) rather than retroactive to August 2008 (when Father filed the first of his motions to modify child support). Although the trial court entered an order in January 2009 modifying Father’s pendente lite child support obligation “without prejudice” to Father’s pending motions to modify, a subsequent order in March 2011 expressly denied Father’s pending motions. Accordingly, the trial court could only properly consider Father’s alleged change of circumstances alleged in his August 2012 motion.

2017---Tidwell v. Late, Va. Ct. of Appeals, No. 1388-16-4
Code of Virginia § 20-108 provides that “[n]o support order may be retroactively modified, but may be modified with respect to any period during which there is a pending petition for modification in any court, but only from the date that notice of such petition has been given to the responding party. Whether to make modification of a support order effective during a period when a petition is pending is entirely within the discretion of the trial court. Here, because the credibility of the Father’s testimony regarding his gross income was in dispute, the trial court did not abuse its discretion in deciding to make the Father’s child support obligation effective as of the date of the hearing rather than the date the mother was given notice of the modification proceeding.

2014---Milot v. Milot, Va. Ct. of Appeals, Published, No. 0937-14-1
The trial court erred by ordering Father to pay child support retroactive to a date prior to Mother’s motion for child support. Code of Virginia § 20-108.1(B) provides that “[l]iability for child support shall be determined retroactively from the date that the proceeding was commenced by the filing of an action with any court...” For a court to exercise the retroactive authorization provided in Code § 20-108.1(B), there must be, as a condition precedent, an existing and pending cause in a court of competent jurisdiction. Here, pursuant to a motion filed by Mother, the trial court entered a child support order making Father’s child support obligation retroactive to the day immediately following the dismissal of a prior divorce proceeding between the same parties in which the court had awarded Mother pendente lite child support. However, by dismissing the divorce proceeding, the court extinguished all of the pleadings and orders filed therein, including the pendente lite child support order. Thus, when the trial court entered its child support order, no prior final order existed compelling Father to pay child support. Accordingly, although the trial court had authority to order child support retroactive the date of Mother’s motion, it had no authority to order child support retroactive to the date the divorce action was dismissed.

2010---Barrett v. Kantz, Va. Ct. of Appeals, Unpublished, No. 2506-09-1
Trial court did not err in refusing to retroactively modify child support back to the date on which mother filed her motion to modify, which was three months after the parties entered into a consent order providing that mother would forego child support for a period of twelve months absent a change in circumstances. Although the court found that father’s lack of cooperation with the co-parenting counselor, which led to his failure to exercise some visitation with the children, constituted a material change in circumstances, the court did not find that this change warranted a child support modification that was retroactive to the date mother filed her motion to amend.

2009---Murphy v. Commonwealth of Virginia, Dep't of Social Srvc's, et al., Va. Ct. of Appeals, Unpublished, No. 1060-09-4
Trial court did not abuse its discretion in refusing to establish as the commencement date for a child support reduction the date on which mother received notice of father's petition to modify support. Although the court may, pursuant to Va. Code §20-108, retroactively award child support or a modification thereof as of the date that notice of a petition has been given to the responding party, whether to do so is entirely within the discretion of the court, and must be based upon the best interests of the child. Here, although father's petition for modification had been pending for approximately three months, father and mother reached an agreement regarding the amount of support just prior to the court's ruling.

2000---Com. Ex. Rel. Graham v. Bazemore, 32 Va. App. 451
Trial court cannot retroactively modify child support obligation.

2000---Asgari v. Asgari, 33 Va. App. 393
Child support shall be awarded retroactively to date of filing, even if custodial parent did not seek hearing on request for pendente lite relief.

1996---Gifford v. Dunkum, Va. Ct. of Appeals, Unpublished, No. 0122-95-2

Trial court abused its discretion in refusing to award child support retroactive to the date of filing, where the trial court’s refusal was based solely on the fact that the mother purposefully identified her current husband as the father on the child’s birth certificate rather than the actual father. The ruling inappropriately penalized the child for the actions of the mother.

(J) Spousal Support

1996---Frazer v. Frazer, 23 Va. App. 358
Spousal support should be considered in calculating child support.

(K) Support of Other Children

2011---Barrett v. Comm. of Va., DSS, DCSE, Va. Ct. of Appeals, Unpublished, No. 1382-10-3
The trial court did not err in refusing to award a credit to the father for support of his stepchildren living in his household. The provisions in Va. Code §20-108.2 that allow for a credit to gross income for other children in a party’s household or custody specifically reference “natural or adopted children,” and thus do not apply to father’s stepchildren.

1999---Sproles v. Lowry, Va. Ct. of Appeals, Unpublished, No. 0134-98-3
Parties agreed upon a credit for other child of Father. Trial court deducted credit from presumptive child support amount. Affirmed.

1993---Summers v. Summers, Va. Ct. of Appeals, Unpublished, No. 2231-92-4
Trial court determined child support guidelines deviation for Father based upon actual support for other child rather than presumptive guidelines amount for other child. Affirmed, deviation is based upon actual support of other children.

1991---Zubricki v. Motter, 12 Va. App. 999
Trial court set Father’s child support without considering support of other children because no support order existed regarding other children. Reversed by Court of Appeals. Court must consider actual monetary support for other children.

(L) Appeal

2013---Zedan v. Zedan, 62 Va. App. 39
The Father posted an appeal bond, pursuant to Code of Virginia § 8.01-676.1(C), pending his appeal of a charge of civil contempt, the amount of his child support arrearage and an award of attorney’s fees to the Mother. The Court of Appeals reversed the finding of civil contempt but increased the amount of the child support arrearage and affirmed the award of attorney’s fees. Thereafter, the Court remanded the matter to the trial court for enforcement. The trial court did not err in releasing the appeal bond to the Mother for payment of the arrearages and fees, since doing so complied with the instructions of the Court of Appeals and the statutory purpose of the appeals bond.

2011---West v. West, 59 Va. App. 225
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.

2010---Broadhead v. Broadhead, Va. Ct. of Appeals, Unpublished, No. 0923-09-2
Trial court did not err in finding on remand that father was in arrears for child support unpaid from the time the Court of Appeals reversed and remanded the 2006 child support modification decree until the remand hearing in the trial court. Reversal by the Court of Appeals of the 2006 child support modification decree did not have the effect of vacating the child support provisions of the previous 2001 divorce decree. Once the 2006 modification decree was reversed on appeal, child support was governed by the most recent child support order entered prior to that 2006 decree, which was the 2001 divorce decree.

2007---Nero v. Williams, Va. Ct. of Appeals, Unpublished, No. 0505-06-2
Father who sought review in the circuit court of a juvenile and domestic relations district court order that increased his child support obligation was not required to post an appeal bond, and the circuit court thus erred in dismissing Father’s appeal. An appeal bond is not required where, as here, the appealed order does not establish an arrearage.

1997---Comm. of Va., DSS, DCSE v. Walker , 253 Va. 319
Circuit court did not have jurisdiction over appeal from a juvenile court order setting child support arrearages where father failed to post an appeal bond, despite the fact that the juvenile court did not set an appeal bond.

1996---Avery v. Comm. of Va., DSS, DCSE, 22 Va. App. 698
Where father sought to appeal only the conviction and jail sentence for unpaid child support, rather than the setting of child support arrearages, he was not required to post an appeal bond.

(M) Child Care Expenses

2020---Emerick v. Emerick, Va. Ct. of Appeals, Unpublished, No. 2028-19-4
The trial court erred in including an $800.00 childcare expense in its child support award when no such expense had been incurred. The children were enrolled in a private school that cost approximately $800.00 per month, which was comparable to the work-related childcare costs that Mother would incur if she ever were to withdraw the children from that school. However, private school tuition is not a childcare expense, and the court should not have included it when calculating the presumptive child support amount. Credit for the private school tuition could only be awarded by a deviation from the presumptive amount, which the trial court expressly declined to grant.

2019---Wyatt v. Wyatt, Va. Ct. of Appeals Unpublished, No. 0291-19-2
The trial court did not err in finding husband’s monthly child care costs reasonable. The court considered the willingness and availability of wife to provide child care personally during husband’s custody weeks. However, given (i) wife’s testimony that she suffers from multiple medical issues, including anxiety, depression, and low blood sugar, that she takes medication, and that she was in counseling for mental health issues, alcohol use, and grief issues related to the death of the parties’ son, and (ii) wife’s obligation to earn as much as she reasonably could to reduce her spousal support needs, husband’s child care costs were reasonable.

2018---Henderson v. Henderson, Va. Ct. of Appeals, Unpublished, No. 1402-17-2
The trial court did not err in refusing to account for Mother’s alleged work-related childcare expenses in its child support award. Although Mother testified that she would incur $1,000 to $1,500 per month in child-care costs if she returned to full-time employment, the evidence demonstrated that her work-schedule was flexible such that she could work from home and to take the parties’ younger child to the office with her as needed. The evidence also showed that Father’s work-schedule permitted him to provide childcare when needed, and that the parties’ older child could also provide childcare for the younger child.

2014---Oley v. Branch, 63 Va. App. 681
The trial court did not err in refusing to add to the parties’ basic child support obligation the amount that Father paid for a nanny. Code of Virginia § 20-108.2(F) provides that “child care costs incurred…due to the employment of the custodial parent shall be added to the basic child support obligation.” Here, although the nanny worked from 8:30 a.m. to 5:00 p.m. cooking, cleaning, and doing laundry, she did so while Father was working from home and while the children were in school. Thus, Father failed to provide any credible evidence that the costs he incurred for the nanny were employment related child care costs.

2011---Prizzia v. Prizzia, 58 Va. App. 137
The trial court did not err in refusing to include wife’s alleged child care expenses in the guideline calculation of child support. Wife’s testimony as to what these expenses were for the child, without any further evidence, was insufficient proof of the appropriate amount of day-care expenses to be added to the basic guideline calculation. Wife had the burden of proving the appropriate amount of those expenses. She failed to produce evidence as to (i) whether what she paid was reasonable in light of alternative day-care centers, and (ii) whether the child was in public school, which provided a free day- care option. Moreover, wife testified that she was paying a nanny a higher hourly rate than wife herself was earning. Given that evidence, the trial court was free to conclude that wife had not carried her burden to demonstrate the appropriate amount of day-care expenses that should have been added to the basic support obligation.

1997--- Newland v. Newland, Va. Ct. of Appeals, Unpublished, No. 1837-96-4
The trial court did not err in including Wife’s “work-related” child care costs in its child support calculation, although Wife was currently unemployed. Wife was actively seeking new employment and interviewing for new positions. By maintaining day care, Wife was prepared to accept any job offers immediately. Additionally, Wife presented credible evidence that she needed to continue to pay child care costs to keep reserved the children’s spot in daycare.

(N) Child Support Guidelines

2020---Chaudhry v. Chaudhry, Va. Ct. of Appeals, Unpublished, No. 0869-19-4
The trial court did not err in its calculation of child support due to wife. Husband contended that wife’s income during the years of the proceeding was not considered when the court implemented the child support guidelines. The court imputed an income of twenty-five thousand dollars ($25,000) to wife – when her actual earnings for that year were zero dollars ($0) – when calculating the child support amount under the guidelines. Although, wife’s tax return showed incomes from her husband’s family business of ninety-one thousand dollars ($91,000) and forty-five thousand dollars ($45,000) during the years of the proceeding, the court found that wife had not worked for ten years and that her purported income was a portion of husband’s salary, and that wife had no assets in those years. Finally, the court found that wife was kept in the dark about her and husband’s financial status. For these reasons, the court’s inserting an income of twenty-five thousand dollars ($25,000) for wife into the child support guidelines to calculate husband’s obligation was proper.

2016 --- Kumar v. Kumar, Va. Ct. of Appeals, Rec. No. 0121-16-4
The trial court did not err by not considering Virginia Code § 20-108.1 at the August 27, 2015 hearing. In that hearing there was no request by either party for a determination of child support. As such the court was not required to consider the statutory factors set forth in that section, nor was it required to calculate child support guidelines to justify any deviation set forth in the PSA.

2015---Milam v. Milam, 65 Va. App. 439
The trial court properly included the parties’ adult son in Mother’s household when applying the federal poverty guidelines to determine Father’s child support obligation. The determination of whether income falls below the federal poverty guidelines threshold is to assure that a calculation of shared-custody child support does not seriously impair the custodial parent’s ability to maintain minimal necessities for the child. The plain text of the poverty guidelines bases the poverty level on the number of persons in a household, regardless of their status as dependents of the party. It was within the court’s discretion to include the parties’ adult son as a member of Mother’s household.

2012---Griffin v. Griffin, Va. Ct. of Appeals, Unpublished, No. 1791-11-4
The circuit court did not err in using sole custody guidelines in recalculating husband’s child support obligation on remand, despite having used shared custody guidelines during the original trial, and despite that fact that neither party objected to the use of the shared custody guidelines at trial or appealed on that issue. The final decree clearly awarded the wife sole custody of children, and thus, the circuit court was not required to use the shared custody guidelines on remand.

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§ 4-3. Spousal Support

(A) Criteria/Award

(1) In General

2014---deCamp v. deCamp, 64 Va. App. 137
The trial court properly awarded Wife a separate and distinct spousal support award that was reasonably separate from the needs of the parties’ children. The party seeking spousal support bears the burden of proving all the facts necessary for an award including evidence of financial need reasonably separate from the needs of others from whom the party paying support either owes no obligation or will be satisfying that obligation, if owed, by other means. Expenses that are indivisible by nature or trivial in amount need not be segregated. Here, the trial court considered Wife’s estimated individual expenses and properly refused to reduce certain indivisible expenses, i.e. utilities, and properly reduced other expenses where it believed Wife included the children’s individual expenses, i.e. groceries and dining out.

2010---Leake v. Taylor, Va. Ct. of Appeals, Unpublished, No. 0737-09-4
Trial court did not err in awarding husband $2,000 per month in spousal support for twenty months only, where husband failed to produce credible evidence of further need, the marriage lasted for less than two years, husband had purposely foregone employment since the separation in order to increase his apparent need for support, wife had made the vast majority of monetary and nonmonetary contributions to the marriage, and both parties shared responsibility for the breakdown of the marriage.

2004---Hoebelheinrich v. Hoebelheinrich, 43 Va. App. 543
Trial court did not err in failing to consider the tax consequences of payments that husband made pursuant to a settlement agreement between the parties when determining the spousal support award. Although Va. Code §20-107.1(E) provides that a trial court “shall consider...(13) such other factors, including the tax consequences to each party, as are necessary to consider the equity of the parties,” when determining the amount and duration of a spousal support award, nothing in the statute requires the court to consider the tax consequences of past, contractual obligations when determining future spousal support.

1996---Mann v. Mann, Va. Ct. of Appeals, Unpublished, No. 0333-95-4
Wife, who was totally responsible for dissolution of marriage, received $1,600.00 per month in spousal support. Trial court’s refusal to reconsider spousal support when it transferred responsibility for mortgage from Husband to Wife constituted error.

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2017---Allen v. Allen, Va. Ct. of Appeals, Unpublished, No. 0562-16-4
The trial court did not err in establishing the amount of Wife’s spousal support. Although Wife contended that the trial court failed to consider the parties’ upper class life style in determining the spousal support award, the trial record indicates it considered that factor, as well as evidence pertaining to other factors including the assets each party received pursuant to equitable distribution, the parties respective income and expenses, that Husband was unemployed as of the date of trial, and that Husband had received a substantial severance package from his employer.

2017---Collard v. Collins, Va. Ct. of Appeals, Unpublished, No. 0406-17-4
The trial court abused its discretion by awarding Wife spousal support. Although Wife presented evidence regarding her own financial needs and Husband’s ownership of a construction business, she failed to present any evidence establishing Husband’s income or his ability to pay the spousal support award. Furthermore, the trial court’s reliance on Husband’s payment of Wife’s expenses pursuant to a pendente lite order to establish Husband’s ability to pay support was also erroneous. First, pursuant to the express terms of the pendente lite order, as well as Code of Virginia § 20-103(E), the pendente lite order had no presumptive effect on the court’s determination of the final spousal support award. Additionally, whereas Code § 20-107.1 requires the court to consider the nine listed factors in awarding final spousal support, Code § 20-103 requires no such considerations in awarding pendente lite spousal support, except that such sums awarded are “necessary for the maintenance and support of the petitioning spouse” or “to enable such spouse to carry on the suit.” Finally, the pendente lite spousal support award did not reflect Husband’s present ability to pay the spousal support award at issue. The pendente lite award was entered over ten months before the trial court made its final spousal support decision in this case. The Court of Appeals reversed the trial court’s spousal support award and remanded the case with instructions to enter an order denying Wife’s request for spousal support.

2015---Neubert v. Neubert, Va. Ct. of Appeals, Unpublished, No. 1675-14-4
The trial court did not err in in awarding Wife spousal support that increased by a specified amount upon the future sale of the marital residence.

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