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

      (1)  Generally

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 of Appeals, Unpublished, No. 1675-14-4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.

2015---Eskridge v. Eskridge, Va. Ct. of Appeals, Unpublished, No. 2321-14-2
The trial court did not err in awarding Wife spousal support despite the alleged lack of evidence regarding her need. Although Code of Virginia § 20-107.1(E)(1) requires the trial court to consider the parties’ obligations, needs and financial resources as a factor in determining spousal support, the statute does not require a specific mathematical formula demonstrating a spouse’s needs. Here, the court heard evidence of the parties’ incomes and that the pendente lite support paid by Husband was insufficient to maintain Wife in the standard of living to which she had grown accustomed during the marriage.

2015---Peake v. Peake, Va. Ct. of Appeals, Unpublished, No. 0262-15-3
The trial court did not abuse its discretion in awarding Wife spousal support in the amount of $9,000 per month for fifteen years.  Where Wife had supported Husband during his lengthy medical education for eight of the nine years of the marriage, which endowed Husband with “formidable earning capacity,” and where further education enabling a gainful career path for Wife was likely to be expensive and time-consuming, the award was appropriate.

2014---Wroblewski v. Russell, 63 Va. App. 468
The trial court had the authority to order Husband to pay wife’s health insurance premiums for eighteen months after the entry of the final order of divorce, pursuant to Va. Code §20-108.1(c).

2014---Blalock v. Blalock, Va. Ct. of Appeals, Unpublished, No. 0895-14-4
The trial court did not err in refusing to terminate Husband’s spousal support obligation when it expressly based its ruling on evidence of each of the parties’ cost of living, Wife’s employment opportunities, and Husband’s change in employment and income. The determination of whether a spouse is entitled to a termination of spousal support is a matter within the trial court’s discretion. When determining spousal support, the trial court must consider the factors in Code of Virginia § 20-107.1(E). However, the trial court is not required to quantify or elaborate exactly what weight or consideration it has given to each of the statutory factors.

2014---Kim v. Lee, Va. Ct. of Appeals, Unpublished, No. 1485-13-1
Trial court did not err in awarding spousal support to Husband of $300 a month for three years where the Wife’s earning potential exceeded Husband’s and Husband’s monetary and non-monetary contributions to the marriage exceeded Wife’s. Though both parties worked full-time as ordained ministers, Husband earned $22,000 less per year, and Wife failed to present evidence that Husband was underemployed. Husband supported Wife and cared for the parties’ children while Wife pursued her education, but when Husband pursued his education, Wife did not support him.

2014---Byrd v. Byrd, Va. Ct. of Appeals, Unpublished, No. 0687-13-2
The trial court erred in awarding spousal support to Wife where she failed to introduce evidence to establish her financial need. The burden to prove all facts necessary for an award of spousal support rests with the party seeking spousal support. A party seeking spousal support must present at least some evidence to show the necessity of the award.

2013-- Patel v. Patel, 61 Va. App. 714
The circuit court did not err in considering undistributed proceeds from Husband’s interest in companies as income for purposes of determining spousal support.

2013---Starling v. Starling, Va. Ct. of Appeals, Unpublished, No. 0589-13-3
The trial court did not abuse its discretion in awarding $1,500 a month in permanent spousal support to wife. Wife testified that her standard of living had changed drastically since the parties separated. She explained that she went from living in the “nicest house in the neighborhood” to a “little, small trailer,” and that despite working full time she was now unable to meet all of her financial obligations. She explained that during the marriage she had ample money to purchase new clothes and go on vacation but during the separation she had to reduce her expenses substantially. During the 23-year marriage, Husband had been the primary financial provider where wife had been the primary caretaker of the home and child.

2013---Patterson v. Patterson, Va. Ct. of Appeals, Unpublished No. 0602-13-3
The trial court did not err in awarding Wife $2,150 per month in spousal support. Specifically, the court did not err in its calculation of Husband’s income, where evidence of income presented by Husband included overtime pay. The trial court also did not err in adjusting Husband’s expenses, including his charitable donations, gifts to his adult daughter, and excessive debt payments. The trial court did not err in failing to impute income to Wife where Husband presented no evidence of her earning capacity and Wife presented evidence that she was on permanent disability and unable to work.

2012---Wright v. Wright, Va. Ct. of Appeals, Unpublished, No. 0275-12-2
Where wife had become accustomed to giving monthly gifts and contributions to charity, these were reasonable expense items for the court to include in its award of spousal support.

2012---Vannatta v. Vannatta, Va. Ct. of Appeals, Unpublished, No. 0237-12-2
The trial court did not err in refusing to include certain existing debts of husband in its determination of husband’s ability to pay support, finding that husband’s choice to take on expenses such as purchases of undeveloped land, jewelry, and a tractor subsequent to the divorce were unreasonable given husband’s awareness that wife could petition for spousal support under the property settlement agreement.

2012---Mograbi v. Abdellatif, Va. Ct. of Appeals, Unpublished, No. 1518-11-4
The trial court erred in failing to make written findings and conclusions pertaining to Va. Code §20-107.1 when awarding wife spousal support. Though wife argued that the trial court did exhaustively review the equitable distribution factors of Va. Code 20-107.3, many of which are the very same factors as appear in §20-107.1, those same factors might be weighed differently with the other factors considered in making a spousal support award than they were in making an equitable distribution award. Moreover, 20-107.1(F) specifically requires that a spousal support order be accompanied by written findings and conclusions of the court identifying the factors in subsection E which support the court’s order.

2011---Coleman v. Coleman, Va. Ct. of Appeals, Unpublished, No. 0633-11-2
The trial court erred in ordering final spousal support to be determined by using the local pendente lite spousal support guidelines. Though the court properly considered the factors of §20-107.1 and recited its consideration of those factors on the record, it then directed the attorneys to simply “plug in” the income numbers into the local guidelines, then entered an order based on those guidelines. The trial court didn’t actually fix the amount of spousal support, and nothing in the record indicated that the trial court knew what amount of support it was actually awarding when it announced its decision.

2011---Pilati v. Pilati, Va. Ct. of Appeals, No. 0762-11-1
The trial court erred by failing to provide sufficient explanation for its decision regarding spousal support. Despite a number of factual disputes, including the cause of the breakdown of the marriage and the potential imputation of income to wife, the trial court’s letter opinion simply paraphrased the statutory factors and included only two factual findings – that the parties had been married for 22 years and had enjoyed a “high middle class” standard of living. Case remanded to trial court for sufficient explanation for award.

2011---Costanzo v. Costanzo, Va. Ct. of Appeals, Unpublished, No. 2357-10-2
Trial court erred in holding that wife failed to present evidence sufficient to demonstrate her need for spousal support, where wife presented a statement showing her current income and expenses, a statement showing husband’s income and expenses, and evidence regarding the lifestyle enjoyed by the parties during the marriage.

2010---Dunfee v. Dunfee, Va. Ct. of Appeals, Unpublished, No. 0870-10-4
The trial court did not err in ordering wife to pay husband spousal support, based on the following circumstances: (i) wife earned significantly more than husband during the marriage; (ii) wife forced husband from the marital residence by obtaining a protective order that ultimately led to his incarceration; (iii) wife refused to provide husband with any support or access to marital funds for the duration of the separation, causing husband to have to survive on family charity; and (iv) husband had recently spent a significant amount of time in rehabilitation to remedy his drinking problem.

2010---Buniva v. Buniva, Va. Ct. of Appeals, Unpublished, No. 1669-09-2
The party seeking spousal support has the burden of putting on evidence regarding any claimed tax consequences it seeks to have considered in the determination.

2010---Andrews v. Creacey, et. al., 56 VA. App. 606
Trial court did not err in refusing to award wife spousal support after a 64-year marriage where wife failed to produce evidence of her needs and expenses.

2010---Tucker v. Wilmoth-Tucker, Va. Ct. of Appeals, Unpublished, No. 2008-09-2
Trial court did not exceed its authority in ordering husband to pay wife $1,400 per month, in addition to spousal support, to assist wife in paying health insurance premiums. Although the trial court’s letter opinion, incorporated into the final decree, set forth the health insurance payments under the “Child and Spousal Support” section of the opinion, the final decree contained language stating that said payments “were not in the nature of spousal support, and shall not be taxable to wife nor deductible to husband for income tax purposes.” Husband argued that the final decree language necessarily meant that the insurance payments were not spousal support, and thus, the circuit court had no authority to order him to maintain health insurance for wife. The Court of Appeals held however, that, when viewed in conjunction with the language relating to the tax implications of the payments, it was evident that the phrase “not in the nature of spousal support” was technical language relating to the tax code and limited to an income tax context. Thus, said language did not directly contradict the initial determination contained in the court’s incorporated letter opinion that the payments were spousal support.

2010---Spreadbury v. Spreadbury, Va. Ct. of Appeals, Unpublished, No. 1053-09-4
Trial court did not err in refusing to award wife spousal support, despite fact that wife had filed for bankruptcy. Wife argued that her need for support was inherently demonstrated by the fact that she had filed for bankruptcy, and she therefore presented no other evidence of her need. Furthermore, the trial court noted that the parties were in their sixties, that husband’s health was declining, that both parties were awarded a substantial sum in equitable distribution, and that, although the standard of living was high during the marriage, it had declined just before the separation. Thus, the court did not err in refusing to award spousal support and instead reserving wife’s right to support upon a future showing of a change in circumstances.

2009---Robinson v. Robinson, 54 Va. App. 87
Trial court did not err in ordering Husband to pay $5,000 per month in spousal support, despite finding that Wife needed only an additional $3,871 per month to maintain the standard of living enjoyed during the marriage.  Va. Code §20-107.1(E)   authorizes the trial court to enter an award of spousal support in an amount greater than – or which otherwise results in the dependant spouse receiving income in an amount greater than – the economic marital standard of living. “The standard of living established during the marriage” is only one of thirteen factors to be considered.

2008---Rogers v. Rogers, 51 Va. App. 261
A court may not order a lump sum spousal support award to compensate a non-debtor spouse for the other spouse’s discharge of marital obligations in bankruptcy, as this would impermissibly intrude upon federal bankruptcy jurisdiction.  However, where a material change in circumstances due to bankruptcy otherwise occurs, a court may modify a spousal support order.

Trial court erred in basing an award of spousal support to wife upon the presumption that Husband would receive a discharge of joint credit card debt in pending bankruptcy proceedings.  The Court’s decree ordering husband to pay the credit card debt as part of its equitable distribution award was a valid, enforceable obligation that qualifies as “debt” for purposes of the bankruptcy statute prohibiting the discharge of certain debts.   Therefore, the Court erred in speculating as to the future results of the pending bankruptcy proceeding in setting its spousal support award.

2008---West v. West, 53 Va. App. 125
Trial court did not err in refusing to award Wife an amount of spousal support sufficient to provide her with a lifestyle that had been inflated by the parties’ reliance on financial support provided by Husband’s parents during the marriage.

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---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).

2007---Polemeni v. Polemeni, Va. Ct. of Appeals, Unpublished, No. 1682-06-1
Trial court did not err in denying Wife’s request for spousal support.  Wife’s affair doomed the marriage.  Wife had education and work experience that would enable her to find gainful employment.  Wife was voluntarily under-employed.  And Wife received a greater portion of marital assets.

2007---A.O.V. v. J.R.V., Va. Ct. of Appeals, Unpublished, No. 0219-06-4
Trial court did not abuse its discretion in the awarding of spousal and child support.  The evidence showed that after the separation, Mother’s and Father’s monthly expenses were approximately the same.  The record established that the trial judge considered, among other statutory factors, the evidence concerning the pre-separation standard of living and the Father’s ability to pay.

2007---Bolton v. Bolton, Va. Ct. of Appeals, Unpublished, No. 2723-06-4
Trial erred by failing to make the necessary written findings and conclusions to accompany its denial of spousal support as required by the spousal support statute.

2007---Brooker v. Brooker, Va. Ct. of Appeals, Unpublished, No. 2445-96-1 (July 10, 2007)
Trial court did not abuse its discretion in making spousal support award.  Based on the evidence, the trial court found that Wife had a dire need for spousal support and Husband has an ability to pay it.  In addition, evidence was presented that Wife is unable to resume employment at this time and that Husband’s conduct during the marriage contributed to Wife’s emotional and financial challenges and the dissolution of the marriage.

2007---Bullano v. Bullano, Va. Ct. of Appeals, Unpublished, No. 0577-06-2 (January 30, 2007)
Trial court did not err in awarding Wife permanent spousal support of $1,000 per month where court considered Wife’s financial needs, her age, her ability to earn, and the standard of living enjoyed by the parties during their marriage against Husband’s ability to pay, considering his ability to earn and his income.

(Return to top of page)

2007---Cote v. Cote, Va. Ct. of Appeals, Unpublished, No. 1008-06-4 (March 13, 2007)
Trial court did not err in awarding Wife $900 per month in spousal support where Wife did not have an adequate income to meet her monthly expenses and where the court considered other factors relevant under Va. Code §20-107.1(E); the duration of the marriage, the ages and physical and mental conditions of the parties, Wife’s significant monetary and non-monetary contributions during the marriage, and the decisions regarding employment made by the parties during the marriage.

2007---Tesfay v. Tesfay, Va. Ct. of Appeals, Unpublished, No. 1260-06-4 (Mar. 27, 2007)
Trial court did not err in awarding Wife $400 per month for one year as spousal support.  The court specifically noted the short duration of their marriage, its determination with respect to marital property and the significant sum each party would receive upon its sale, the respective debts of the parties, the health and ages of the parties, and the work potential of Husband as an airline mechanic and Wife as a nurse.  The court further noted that there has been no testimony about the standard of living established during the marriage.

2006---Kennedy v. Kennedy, Va. Ct. of Appeals, Unpublished, No. 0218-06-2 (October 24, 2006)
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---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. 2278-94-1 (February 6, 1996)
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.

(Return to top of page)

1996---Barrs v. Barrs, Va. Ct. of Appeals, Unpublished, No. 2093-95-1 (August 20, 1996)
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 (March 5, 1996)
No award of spousal support when request not made at trial.

1996---Gillis v. Gillis, Va. Ct. of Appeals, Unpublished, No. 2290-95-4 (May 14, 1996)
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 (June 4, 1996)
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 (October 29, 1996)
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 (December 31, 1996)  
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 (April 23, 1996)
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 (1986)
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.

Where the wife is possessed of a sizeable 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.

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.”

(Return to top of page)

      (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 (July 16, 1996)
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 (May 20, 2003)
Wife awarded lump sum and periodic spousal support.  Affirmed.

      (3)  Property Distribution Considerations

2014---Plaisted v. Plaisted, Va. Ct. of Appeals, 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 (2008)
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 (January 9, 2007)
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 (July 23, 1996)
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.

(Return to top of page)

Previous Page | Next Page