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

2006---Kennedy v. Kennedy, Va. Ct. of Appeals, Unpublished, No. 0218-06-2
Trial court erred in awarding Wife $400 per month in spousal support where the trial judge failed to provide the requisite written findings and conclusions supporting the award.

2006---Robbins v. Robbins, 48 Va. App. 466
Trial court abused its discretion in adopting the commissioner’s recommended spousal support where the commissioner deducted the child support award from Wife’s estimate of her financial need.

2005---Miller v. Cox, 44 Va. App. 674
$9,000 per month spousal support award upheld. Trial court did not err in finding 5% pre tax to be a reasonable rate of return on Wife’s investments (based upon expert testimony). Wife’s needs could include expenses and savings. The parties’ savings plan is a mandatory consideration.

2001---Joynes v. Payne, 36 Va. App. 401
An agreement for a spouse to work less than full time during the marriage may affect that party’s ability to earn (but not that party’s duty to earn).

1998---McCombs v. McCombs, 26 Va. App. 432
Trial court did not err in awarding wife only $10,000 per month in spousal support, despite evidence that the parties enjoyed an extraordinary standard of living prior to their separation, including wife’s receipt from husband of approximately $20,000 per month to run the household. The court concluded that the parties’ lifestyle, upon which wife based her standard of living argument, was maintained partly through income, partly through creative use of tax laws, and partly through incurring debt.

1998---Barker v. Barker, 27 Va. App. 519
Spousal support based upon Husband's anticipated future income.

dicta: relevant time period includes the immediate past as well as the immediate or reasonably foreseeable future.
dicta: it is improper for a trial court to treat assets divided in equitable distribution as income.

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)).

1997---Frydrychowski v. Frydrychowski, Va. Ct. of Appeals, Unpublished, No. 2086-96-2
Child support payments are irrelevant to the Court's determination of spousal support.

1997---Reid v. Reid, 24 Va. App. 146
The trial court properly reinstated a prior spousal support order that it had erroneously vacated upon entry of divorce. The Court previously granted wife spousal support on an appeal from a separate spousal support action in Juvenile Court. Husband’s subsequent complaint for divorce did not reference spousal support directly, but stated only a request that each party be “perpetually protected in their persons and property.” Wife failed to answer or appear, and the Circuit Court then granted Husband’s request to revoke the prior spousal support order when granting the divorce. Wife filed a petition to reinstate the prior order, and the trial court correctly determined that because Husband’s complaint was silent on the issue of support, the Court never had proper jurisdiction to revoke the prior order.

1997---Wilmott v. Wilmott, Va. Ct. of Appeals, Unpublished, No. 1260-96-4 (February 4, 1997)
Where a claim for support is made by a party who has been held blameless for the marital breach, the law imposes upon the other party a duty, within the limits of his or her financial ability, to maintain the blameless party according to the station in life to which that party was accustomed during the marriage.

1996---Baer v. Baer, Va. Ct. of Appeals, Unpublished, No. 2278-94-
Small lump sum spousal support award, payable over time, upheld even though insufficient to maintain standard of living. Wife had training and experience to support herself.

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1996---Barrs v. Barrs, Va. Ct. of Appeals, Unpublished, No. 2093-95-1
The ability of Husband to pay is determined not necessary by the amount of his actual earnings, but also by his ability to earn and what, under all the circumstances, will be a fair and just allotment. In reaching its decision, income averaging is an acceptable method of determining a spouse's ability to earn.

1996---Ferris v. Ferris, Va. Ct. of Appeals, Unpublished, No. 1617-94-2
No award of spousal support when request not made at trial.

1996---Gillis v. Gillis, Va. Ct. of Appeals, Unpublished, No. 2290-95-4
Trial court did not abuse its discretion in considering Wife's expenses relating to the marital home, in considering college expenses paid by Wife for adult son, and in awarding support in excess of reasonable expenses less income.

1996--- Labranche v. Labranche, Va. Ct. of Appeals, Unpublished, No. 2383-95-4
A spousal support award must be based upon the circumstances in existence at the time of the award.

1996---Pellegrin v. Pellegrin, Va. Ct. of Appeals, Unpublished, No. 0143-96-4
Husband, by agreement, to pay taxes on spousal support. Taxes calculated by simply applying tax tables to amount of spousal support.

1996---Silvester v. Silvester, Va. Ct. of Appeals, Unpublished, No. 0515-96-3
Wife who has had no appreciable work experience during marriage is allowed a reasonable time to secure employment before the imputation of income.

1996---Tanger v. Tanger, Va. Ct. of Appeals, Unpublished, No. 0509-95-3
The party seeking spousal support must earn as much as he or she reasonably can to reduce the amount of the support needed. (citing Konefal v. Konefal, 18 Va. App. 612 (1994)).

1996---Theismann v. Theismann, 22 Va. App. 557
Husband with annual income of $1,200,000 ordered to pay $42,000 per year in spousal support. Affirmed by Court of Appeals.

1994---Mosley v. Mosley, 19 Va. App. 192
In awarding spousal support, the trial court must consider the relative needs and abilities of the parties.

1994---Konefal v. Konefal, 18 Va. App. 612
The trial court has the discretion to enter the award of spousal support effective any time after the date of the commencement of the suit. The trial court did not err in entering a final order which awarded wife a certain amount of support for the period between the commencement of the suit and the final order, and another amount for the period subsequent to the final order, as wife's change in income over that period justified such an award.

1990---Lambert v. Lambert, 10 Va. App. 623
The decision to grant child support was not a proper factor to consider on the issue of spousal support.

1986---Boyd v. Boyd, 2 Va. App. 16
The trial court erred in awarding wife permanent spousal support where wife failed to request support in any pleading or motion. Although Wife’s answer prayed for “such other and further relief as to equity may seem meet and the nature of her case may require,” said prayer was not sufficient to justify a spousal support award. The power of a court of equity to grant such further relief as necessary extends only to those powers required to effectually carry out its decrees in matters over which it has the power to act; it does not extend to an award of relief not raised by the pleadings.

1986---Collier v. Collier, 2 Va. App. 125
Trial court erred in awarding wife a $4,000 lump sum spousal support award based on testimony by wife that over three years of marriage she depleted a savings account of her separate funds by approximately the same amount to help husband satisfy various obligations. The "maintenance and support" of a spouse provided for by Va. Code §20-1 07.1 is not a vehicle for the restoration of funds expended during the marriage by one spouse for the benefit of the other.

1986---Woolley v. Woolley, 3 Va. App. 337.
The trial court abused its discretion in failing to consider all factors of Va. Code §20-107.1 when denying wife spousal support in addition to 25% of husband’s military pension. Evidence revealed an overwhelming disparity in favor of husband with regard to earning capacity, resources, education, training, and ability to secure additional education or training.

1979---Jacobs v. Jacobs, 219 Va. 993
Trial court erred in ordering that in addition to a fixed monthly spousal support award, Husband pay 25% of all income over his current salary which he might earn in future years. Such an “escalator clause” ignores the design and purpose of the spousal support statutory scheme by premising spousal support upon the occurrence of an uncertain future circumstance.

1962---Klotz v. Klotz, 203 Va. 677
Where a claim for spousal support is made by a wife who has been held blameless for the marital breach, the law imposes upon the husband the duty, within the limits of his financial ability, to maintain his former wife according to the station in life to which she was accustomed during the marriage. In fixing the amount, the court must look to the financial needs of the wife, her age, physical condition and ability to earn, and balance against these circumstances the financial ability of the husband to pay, considering his income and ability to earn. The amount awarded must, in any event, be fair and just under all the circumstances of the case.

1957---Baytop v. Baytop, 199 Va. 388
Although awards of spousal support are within the trial court’s discretion, the court should not award spousal support as punishment to a transgressor husband or as a reward to a wronged wife. The denial or allowance of spousal support is to be determined with reference to established principles of law relating to the subject, and upon an equitable consideration of all the facts and circumstances of the case. Where wife had resumed teaching and was earning approximately the same salary as she had during the marriage, the trial court erred in awarding wife spousal support, despite having awarded her a divorce based on husband’s cruelty.

1922---Barnard v. Barnard, 132 Va. 155
Trial court did not err in refusing to increase spousal support where wife was “a young woman, only twenty-eight years of age,” who, “under modern conditions there [was] open to her practically every avenue for making money that [was] open to her husband,” and “by the decree of the court she [was] released from her former household duties.” The court further noted that “her time [was] her own,” that “she has no right to remain idle at the expense of her former husband,” and that it was “her duty to minimize his loss, albeit it was through his fault that she was compelled to ask that the contract of marriage be rescinded.”

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(2) Lump Sum vs. Periodic

1996---Dickson v. Dickson, 23 Va. App. 73
Husband bankrupted equitable distribution award. In response, trial court found material change in circumstance, and modified spousal support award. Affirmed, despite fact that initial trial court decree only ordered monthly spousal support payments for thirty-six months without reservation. Spousal support paid by periodic payments subject to modification, while lump sum support (even if due in installments) is not subject to modification.

1996---Bartlett v. Rennier, Va. Ct. of Appeals, Unpublished, No. 2639-95-4
Though courts may award lump sum spousal support because of special circumstances or compelling reasons, periodic payments are the preferred form.

1996---Thomas v. Thomas, Va. Ct. of Appeals, Unpublished, No. 3297-01-4
Wife awarded lump sum and periodic spousal support. Affirmed.

(3) Property Distribution Considerations

2014---Plaisted v. Plaisted, Va. Ct. of Appeals, Unpublished, No. 0051-14-2
The trial court did not abuse its discretion by awarding Wife spousal support in an amount that exceeded Husband’s current income. In addition to considering an obligor’s current income when determining spousal support, Code of Virginia §20-107.1 requires a trial court to consider other factors, including the property distributed in equitable distribution, the standard of living established during the marriage, the parties’ earning capacities, and the parties’ decisions regarding their employment and careers. Here, Husband was awarded real and personal property from which he could obtain funds to pay support. Additionally, although Husband did not earn enough income through his sole proprietorship to pay Wife the spousal support awarded, the trial court was entitled to find that Husband had a greater earning capacity because Husband turned down two job opportunities and continued to pursue his unprofitable sole proprietorship.

2012---Vannatta v. Vannatta, Va. Ct. of Appeals, Unpublished, No. 0237-12-2
The trial court did not err when, after considering the property distribution set forth in the parties’ settlement agreement, it declined to accord significant weight to that factor for purposes of determining the amount and duration of spousal support. The trial court noted that the settlement agreement and the resulting distribution of property had occurred four years prior to the spousal support hearing.

2009---Darley v. Darley, Va. Ct. of Appeals, Unpublished, No. 1216-09-4
Trial court did not err in awarding wife spousal support in addition to awarding her fifty percent of husband's military retirement pay, despite there being no evidence that husband had income in addition to that retirement pay. The one-time equitable distribution of property completed by Va. Code §20-107.3 is based on the accrued rights of the parties in the distributed property...a consideration separate from that necessary to measure the current financial positions of the parties in determining spousal support under §20-107.1. The income received by husband from his share of the distribution of the pension is a fungible asset that may be considered as a resource when determining the amount of his spousal support obligation. (Citing Moreno v. Moreno, 24 Va. App. 190 (1997)).

2008---McKee v. McKee, 52 Va. App. 482
Trial court did not err in considering Wife’s monthly mortgage expense on the marital home, which she received as part of the parties’ Property Settlement Agreement, for purposes of determining spousal support. The mere fact that a spouse’s housing expenses arise out of former marital property does not alter that spouse’s need for housing. Though a court is not required to include such expenses in its ultimate spousal support award, Va. Code §20-107.1 requires that a court consider a spouse’s reasonable housing related expenses when determining that spouse’s needs, obligations, and ability to pay spousal support.

2007---Lesesne v. Zablocki, Va. Ct. of Appeals, Unpublished, No. 0334-06-4
Where court reversed equitable distribution award, court remanded issue of spousal support for reconsideration.

2006---Whitaker v. Whitaker, Va. Ct. of Appeals, Unpublished, No. 2343-05-4
Where court reversed an equitable distribution award on appeal so that the provisions with regard to marital property are to be considered on remand, the court reversed and remanded the issue of spousal support.

2000---Rowe v. Rowe, 33 Va. App. 250
Trial court must consider income generating potential of the equitable distribution award.

1997---Moreno v. Moreno, 24 Va. App. 190
Husband's pension considered for both equitable distribution and for spousal support. Affirmed, despite Husband's complaint of double dipping.

1997---Rowe v. Rowe, 24 Va. App. 123
Division of marital property must be considered as a factor in spousal support award.

1997---Wilmott v. Wilmott, Va. Ct. of Appeals, Unpublished, No. 1260-96-4 (February 4, 1997)
While the outstanding mortgage payments on marital property are properly considered in equitable distribution, they should not be factored again in determining the spousal support award. (citing Gamble v. Gamble, 14 Va. App. 558 (1992)).

1996---Cunningham v. Cunningham, Va. Ct. of Appeals, Unpublished, No. 0663-95-2
The trial court cannot indirectly exceed the fifty percent limitation on the equitable division of the marital share of retirement benefits by basing the spousal support award, in part, upon the Husband's marital share of his pension.

1987---Ray v. Ray, 4 Va. App. 509
Trial court erred in treating $29,000 payments of an equitable distribution award as income for purposes of spousal support. Court cannot consider the corpus of a monetary sum derived from the distribution of the marital estate as income to the receiving spouse, only income later generated from that property.

1962---Klotz v. Klotz, 203 Va. 677
Where the wife is possessed of a sizable estate in her own right, the law does not require her to invade that estate to relieve the obligation of her former husband whose actions have brought an end to their marriage.