Support - Child and Spousal - § 4-3 (B) - § 4-3 (C)

(B) Defined Duration

2015—Neubert v. Neubert, Va. Ct. of Appeals, Unpublished, No. 1675-14-4
The trial court did not err in awarding Wife spousal support for an undefined duration. Code of Virginia §20-107.1 does not require the trial court to specify the date of termination of a spousal support award.

2014—Cleary v. Cleary, Va. Ct. of Appeals, No. 1343-13-4
The trial court erred by failing to make written findings justifying the basis for the nature, amount, and duration of the award, as required by Code of Virginia §20-107.1(F). While the trial court provided adequate written findings specifying the statutory factors under subsection (E), it failed to connect those factual findings to its decision to limit spousal support to a defined duration of five years. In making an award for a defined duration, the statute requires that the trial court specify the statutory factors relevant to the award under subsection (E), and identify the basis for the nature, amount, and duration of the award under subsection (F). The practical purpose of that requirement is to provide a court, in the event of future modification requests, with an understanding of the original circumstances surrounding and basis for the original award.

2011—Pramagioulis v. Pramagioulis, Va. Ct. of Appeals, Unpublished, No. 1437-10-2
Trial court did not err in awarding wife rehabilitative alimony for twenty years, which was more than twice the length of the marriage. Despite the fact that Wife had done office work for husband’s business, wife was on permanent disability for several mental disorders and, according to the trial court, unable to work.

2007—A.O.V. v. J.R.V., Va. Ct. of Appeals, Unpublished, No. 0219-06-4 (February 27, 2007)
Trial court did not err in granting duration of eight years for spousal support. Upon the last scheduled spousal support, the children will be 14, 15, and 21. Mother was a teacher prior to the marriage and the trial judge concluded Mother would be able to resume her career once the children are older and more self-sufficient.

2005—Bruemmer v. Bruemmer, 46 Va. App. 205
Court of Appeals affirmed six year, reducing amount, defined duration award. Award included a fifteen year reservation of support.

2002—Torian v. Torian, 38 Va. App. 167
It is not error to award Wife spousal support for a seven-year defined duration after twenty-six year marriage where Husband is retired and his income will decrease in seven years.

1976—Thomas v. Thomas, 217 Va. 502
The trial court erred in limiting spousal support to just two years. During the 30 year marriage, Wife’s only work outside the home had been recent substitute teaching. Wife was 51 years old and had an old neck injury that substantially limited her ability to work. Evidence revealed that Wife had a need for support, and that Husband had the ability to pay. In the absence of evidence that Wife’s need or Husband’s ability to provide for that need would substantially change within the immediate or foreseeable future, the trial court’s limitation of spousal support to two years was in error.

(C) Fault of Spouse

2018—Pattillo v. Pattillo, Va. Ct. of Appeals, Unpublished, No. 1334-17-2
The trial court did not err by awarding spousal support to Wife. Although the trial court granted the divorce on grounds of Wife’s adultery, for purposes of awarding spousal support, the court found that Husband’s conduct during the marriage also contributed to the demise of the marriage including his exhaustion resulting from his work schedule, lack of communication skills, and his propensity to pay little to no attention to Wife or the children when he was home from work. Further, by agreement of the parties, Wife gave up any chance at a career to be the primary caretaker of the children, and the parties enjoyed a relatively high standard of living. Accordingly, the trial court had sufficient clear and convincing evidence to determine that a denial of spousal support to Wife would be a manifest injustice in light of the parties’ respective degrees of fault during the marriage and the relative economic circumstances.

2016—Mundy v. Mundy, 66 Va. App. 177
The trial court erred in awarding Wife spousal support pursuant to the manifest injustice exception to Code of Virginia § 20-107.1(B). The legislative impulse behind the manifest injustice exception is to prevent leaving a spouse destitute as a result of an act of adultery. Here, the trial court found that the evidence, including Wife’s multiple acts of adultery, weighed heavily in favor of Husband under the “relative degree of fault” prong of the manifest injustice exception. Further, under the “relative economic circumstances” prong, the evidence demonstrated that Wife had assets worth more than $1.8 million, a degree in mechanical engineering, and was capable of earning an income.

2015—Giraldi v. Giraldi, 64 Va. App. 676
The trial court erred by invoking the manifest injustice exception to award Wife a reservation of spousal support. Under Code of Virginia §20-107.1(B), the circuit court may award spousal support to an adulterous spouse only under a narrow exception that requires a finding of manifest injustice by clear and convincing evidence based upon two factors: (1) the respective degrees of fault of the parties during the marriage; and (2) the relative economic circumstances of the parties. Because a court’s decision to invoke the manifest injustice exception must be “based upon” these factors, Code §20-107.1(B) requires a higher level of justification than a statutory command that merely requires the court to consider various factors. Here, the trial court granted the divorce on grounds of Wife’s adultery and invoked the manifest injustice exception to award Wife a reservation of spousal support. However, although the court heard evidence related to Code §20-107.1(B)’s two factors, nothing in the record indicated that the trial court actually compared the parties’ respective degrees of fault or assessed the difference between the parties’ economic circumstances. Moreover, although the trial court stated that it did not know what would happen to the parties in the future, it nevertheless found that denying Wife a reservation of spousal support would constitute a manifest injustice. By its very definition, a finding of manifest injustice cannot be speculative. Rather, it must be established by clear and convincing evidence.

2014—Nowlakha v. Nowlakha, Va. Ct. of Appeals, Unpublished, No. 2377-13-4
The trial court did not err in ruling that it would be a manifest injustice to deny Wife spousal support despite her admitted post-separation adultery. Husband failed to prove by clear and convincing evidence that Wife had committed adultery prior to the separation, and the court found from the remaining evidence that the parties were equally responsible for the dissolution of the marriage prior to any proven adultery of Wife. Additionally, although Wife received a substantial monetary award in equitable distribution, said award did not alleviate the serious economic disparity existing between Husband and Wife or eliminate the fact that Husband’s future earning capacity exceeded Wife’s. Husband earned approximately $15,000 per month, and although Wife was employed part-time at the time of the hearing, she had been out of the workforce for the previous twenty-two years.

1993—Barnes v. Barnes, 16 Va. App. 98
In order to find that a denial of spousal support will constitute a “manifest injustice,” the court must base that finding on the parties’ comparative economic circumstances and the respective degrees of fault during the marriage. “Respective degrees of fault during the marriage” are not limited to legal grounds for divorce. Instead, such “fault” encompasses all behavior that affected the marital relationship, including any acts or conditions which contributed to the marriage’s failure, success, or well-being.

The trial court did not err in awarding wife spousal support, despite finding that she had committed post-separation adultery and finding that husband had not committed “fault” sufficient to give rise to legal grounds for divorce. Both parties conceded that the marriage had ended prior to Wife’s adultery, and the court therefore found that her adultery played little, if any role in the deterioration of the marriage. Moreover, wife’s earning capacity and assets were substantially less than husband’s.

2003—Congdon v. Congdon, 40 Va. App. 255
In order to take advantage of the narrow “manifest injustice” exception to the statutory bar of spousal support found in Va. Code §20-107.1(B), the party asserting the exception must prove, by clear and convincing evidence, that a denial of support would constitute a manifest injustice based on the consideration of both (i) the relative degrees of fault of the parties in the dissolution of the marriage; and (ii) the relative economic circumstances of the parties. The test is not a disjunctive one, as both factors must be weighed by the trial court in determining whether the exception applies.

Although the trial court erred in concluding that the “manifest injustice” exception could be invoked based on either the economic disparities of the parties or the relative degrees of fault, rather than on both factors, the court nonetheless made findings based on both factors sufficient to support its conclusion that wife was entitled to spousal support despite her admitted adultery. Although wife had engaged in an extra-marital affair for approximately five years, husband’s twenty-year history of base and profane behavior towards wife and the children could not be overlooked or be placed in the same league as the types of mere incivility or petulance of manners ordinarily alleged, and often proved, in nearly every divorce case. Husband’s income, earning capacity, and property interests far surpassed wife’s, and coupled with his behavior throughout the marriage, served as clear and convincing evidence that a denial of support to wife would constitute a “manifest injustice.”

2002—Wright v. Wright, 38 Va. App. 394
Wife awarded spousal support despite adultery where fault was balanced, and great economic disparity.

1999—Calvin v. Calvin, 31 Va. App. 181
Wife awarded spousal support despite fact that she was vindictive and cruel and that she had committed adultery.

1997—Rahbaran v. Rahbaran, 26 Va. App. 195
Trial court’s decision to award Wife spousal support despite her adultery was not abuse of discretion.

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—Eisenberger v. Eisenberger, Va. Ct. of Appeals, Unpublished, No. 2549-95-2
Trial court denied spousal support and reservation of spousal support on basis of desertion by Husband. Affirmed. (Note: Wife disabled).

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.

1996—Smith v. Smith, Va. Ct. of Appeals, Unpublished, No. 2801-95-3 (July 16, 1996)
Award of $200.00 per month in spousal support to deserting wife affirmed.

1993—Bandas v. Bandas, 16 Va. App. 427
Trial court did not err in affirming arbitrator’s award of spousal support to wife despite wife’s adultery during husband’s incarceration. Va. Code §20-107.1 states that notwithstanding a spouse’s fault, support may be awarded to such spouse based on “degrees of fault,” among other factors, if clear and convincing evidence establishes that justice requires such support. Husband’s net worth of approximately $2.8 million and an annual salary of $20,000 were used to attribute to him a “reasonable income” of $103,000, whereas wife made only $38,000 – $43,000 per year.

1992 --- Williams v. Williams, 14 Va. App. 217
The trial court did not err in granting a divorce on the grounds of a one year separation instead of on the grounds of Wife’s alleged adultery, or in awarding spousal support to Wife. Even assuming that Husband sufficiently proved Wife’s adultery, a trial court is not compelled to give precedence to one proven ground of divorce over another. In addition, although Code of Virginia § 20-107.1 establishes that adultery can preclude an award of permanent spousal support, the limitation is not absolute. The trial judge expressly noted his consideration of the factors set forth in § 20-107.1, including Wife’s conduct.

1985—Wallace v. Wallace, Va. Ct. of Appeals, No. 0055-85.
Spousal support is not barred by fault that is neutralized by recrimination. Where neither party is entitled to a fault divorce, the obligation of spousal support continues.

1985—Wallace v. Wallace, 1 Va. App. 183
Husband is not relieved from his duty to support his Wife unless it is shown that the separation was caused by fault or misconduct on her part. When neither party is entitled to a fault divorce, the obligation to support the spouse continues.

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.

1939—Babcock v. Babcock, 172 Va. 219
Wife was not entitled to spousal support despite husband’s fault in the breakdown of the marriage, where husband, a retired minister, was “liberal in his expenses for [the parties’] joint comfort” during the 82-day marriage, was considerably older than wife and less capable of earning a livelihood than she, and had an afflicted son from a previous marriage for whose care he was financially responsible.

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