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

(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 of Appeals, Unpublished, No. 1675-14-4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 of Appeals, Unpublished, No. 1437-10-2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 of Appeals, Unpublished, No. 0219-06-4 (February 27, 2007)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

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.

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.

(D) Modification

2016—Bailey v. Bailey, Va. Ct. of Appeals, Unpublished, No. 0981-15-4
Although Code of Virginia § 20-109(A) and (B) are similar in that they both govern modifications of spousal support; the two provisions are not identical. Code § 20-109(A) provides that upon “petition of either party the court may increase, decrease, or terminate the amount or duration of any spousal support…” Code § 20-109(B), on the other hand, applies specifically to the “modification of an award of spousal support for a defined duration,” and among other things, requires that the change in circumstances was “not reasonably in the contemplation of the parties when the award was made.” Here, the parties’ settlement contemplated that requests for spousal support modification would be governed by Code § 20-109, but failed to specify whether subsection (A) or (B) would apply. Regardless, because the agreement called for spousal support for a defined duration, the Court of Appeals determined that subsection (B) was a better fit under the agreement.

The trial court erred in denying Husband’s motion to modify spousal support upon a finding that Husband’s decrease in income since the final divorce order (incorporating the parties’ settlement agreement) was an occurrence that the parties contemplated when they agreed to the spousal support amount. Although the evidence demonstrated that Husband’s income had fluctuated throughout the marriage, the evidence also demonstrated that Husband currently faced circumstances with his employer that were beyond the parties’ contemplation at the time they negotiated the settlement agreement, including a problematic merger with another firm, an exodus of numerous partners from the firm, a 65% drop in his collected fees, a 95% drop in new clientele, and a 40% drop in his annual income. Such significant developments were well beyond the ordinary fluctuations in Husband’s income during the marriage.

2015—Miller v. Green, Va. Ct. of Appeals, Unpublished, No. 1993-14-3
The trial court erred by retroactively terminating Husband’s spousal support obligation to a date prior to the date Husband filed his motion to terminate spousal support. Code of Virginia § 20-112, provides that “no 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.” Additionally, Code § 20-109 provides that upon petition of either party, the court may modify or terminate spousal support that ‘may thereafter accrue,’ but makes no provision for modifying an award for support previously accrued. Accordingly, the clear language of Code § 20-112 and § 20-109(A) forbade the trial court from modifying Husband’s spousal support obligation to a date any earlier the date he served wife with his motion to modify support.

2015— Aratoon v. Roberts, Va. Ct. of Appeals, Unpublished, No. 0529-14-4
The trial court did not err in initially reducing and ultimately terminating Wife’s spousal support obligation to Husband. The evidence demonstrated, inter alia, that Wife had lost her job and that Husband squandered considerable assets he received in equitable distribution, viewed his efforts to obtain spousal support as a means to bankrupt Wife, and failed to mitigate his economic need by seeking employment or obtaining disability benefits or public assistance.

2015—Blair v. Blair, Va. Ct. of Appeals, Unpublished, No. 2242-14-4
The trial court did not err in concluding that there was no material change in circumstances warranting a modification of Husband’s spousal support obligation. Although Husband had retired and Wife’s income had increased since the prior support order, Husband’s total income had increased significantly as compared to Wife’s income over the same period. Accordingly, Husband still had the ability to pay support as previously ordered.

2015—Lamb v. Lamb, Va. Court of Appeals, Unpublished No. 2201-14-4
The trial court did not err in determining that Husband’s decrease in income did not warrant a modification of his spousal support obligation. The moving party in a petition for modification of support is required to prove both a material change in circumstances and that this change warrants a modification of support. The crucial question, once a material change in circumstances has been shown, is the ability of the supporting spouse to pay. Here, there was no dispute that Husband’s reduction in income constituted a material change in circumstances. However, since the prior support order, Husband had paid all of his expenses, including his spousal support obligation, and still had sufficient income to go on two vacations, purchase a new car and boat, and set aside a substantial amount of money for a pension plan tax deference. Accordingly, Husband had the ability to pay his spousal support obligation as ordered under the prior order.

2015—Cook v. Cook, Va. Court of Appeals, Unpublished No. 2104-14-2
The trial court did not err by reducing, rather than terminating, Husband’s spousal support obligation. Since the prior support order, Wife’s income had significantly increased, the parties’ children had emancipated, Husband had remarried and had two children with his new wife, and Husband’s expenses had significantly increased. This evidence constituted a material change in circumstances warranting a reduction in Husband’s support obligation. However, the evidence also showed that Husband’s income had increased and that his current wife earned a substantial income that was not considered at the last support order. Thus, a termination of Husband’s support obligation was not warranted because he had the ability to pay the reduced support.

Additionally, the trial court did not err by refusing to consider the length of the marriage and how long Husband had been paying spousal support. Code of Virginia § 20- 109(A) provides that a court may modify spousal support “as the circumstances may make proper.” The statute does not provide a list of factors that a court must consider when it modifies support.

2014—Barnes v. Barnes, 64 Va. App. 22
The trial court did not err by striking Husband’s evidence in support of his motion to modify spousal support. Here, although Husband provided his current income and demonstrated that he had retired and developed dementia since the trial court entered the prior support order, Husband failed to demonstrate how his income or his ability to pay spousal support had changed since the previous spousal support award, having not admitted any evidence as to what his financial circumstances were at the time of the initial award.

2014—Dritselis v. Dritselis, Va. Ct. of Appeals, Unpublished, No. 0530-14-3
The trial court did not err in reducing Wife’s monthly spousal support obligation. Although Wife owned valuable real properties that she could either rent or sell in order to satisfy her support obligation to Husband, she did not have the capital to make the necessary improvements to ready the properties for sale or rent. Additionally, at the time of the hearing, Wife was seventy-one years old and in poor health, which affected her ability to earn an income.

2014—LaBrie v. LaBrie, Va. Ct. of Appeals, Unpublished, No. 1894-14-2
The trial court did not err in denying Husband’s motion to reduce or terminate his spousal support obligation. The party moving for a modification of support is required to prove both a material change in circumstances and that this change warrants a modification of support. One of the circumstances a court must consider is whether the changed circumstances arose from the moving party’s own voluntary underemployment. Here, Husband presented evidence that he suffered from severe pain, received social security disability benefits, and that he was completely disabled and unemployable. But the evidence also showed that Husband had recently participated in activities he claimed he could not, and that he submitted only two employment applications. Therefore, the trial court properly concluded that Husband was unemployed due to his voluntary acts.

2014—LaBrie v. LaBrie, Va. Ct. of Appeals, Unpublished, No. 1894-14-2
The Social Security Administration’s determination that Husband was eligible for disability benefits was not dispositive of whether there had been material change in circumstances since the prior support order that warranted a modification of Husband’s spousal support obligation.

2014—Slye v. Slye, Va. Ct. of Appeals, Unpublished, Record No. 1312-13-4
Trial court did not err in considering the factors under Code §20-107.1(E) in determining whether to modify spousal support. While a court is not required to consider all of the factors under Code §20-107.1(E) in ruling upon a motion to reduce spousal support, it is not an error for a court to consider these factors in determining whether a material change in circumstances warrants a modification in support.

2013—Strack v. Strack, Va. Ct. of Appeals, Unpublished, No. 0822-13-1
The trial court did not err in finding that Husband’s termination arose from his own fault. Husband, the president of Henderson, Inc. (“HI”), was terminated by the chairman of HI after the chairman noticed changes in his leadership style that he determined were detrimental to the company. The chairman testified that he began speaking with Husband about his intimidating leadership style almost daily beginning eighteen months prior to his termination. Despite these discussions, Husband’s behavior intensified over the eighteen months prior to his termination. At the termination meeting, Husband suggested that the termination be “mutual” because he wished to start another business. Despite the Husband’s request, the chairman chose to unilaterally terminate the Husband. The evidence supported the trial court’s finding that Husband was either fired for cause or left of his own accord to pursue another business venture.

2013—Sewell v. Sewell, Va. Ct. of Appeals, Unpublished, No. 2053-12-4
The trial court did not err in concluding that Husband had not shown a material change in circumstances warranting a reduction in support. The original support award was the result of an agreement by the parties, premised on what later proved to be a drastically underestimated three-year earnings average. Husband subsequently left his previous position for new employment which, as with the previous employment, involved the potential for widely fluctuating income from year to year. Despite Husband’s testimony that a tumultuous work environment and the threat of losing his job caused him to resign his former employment, he failed to offer any corroborating evidence for those claims, and thus failed to carry his burden of proving an involuntary reduction in income. Given the fluctuating nature of his income, and the fact that the parties relied on the same methodology in setting the previous support amount, the trial court did not err in using a three-year earnings average to determine Husband’s current income.

2013—Schwartz v. Schwartz, Va. Ct. of Appeals, Unpublished, No. 1377-12-1
Where the trial court terminated the wife’s spousal support at a hearing occurring approximately two months after the entry of the final divorce decree, the trial court did not err by awarding spousal support in the amount of $560 at a hearing one year and three months later based on the material change in the wife’s financial needs warranting modification. The wife showed that she was compelled to sell plasma and apply for food stamps.

2012—Wright v. Wright, Va. Ct. of Appeals, Unpublished, No. 0275-12-2
Regardless of the foreseeability of an increase in income generated from the principal of an equitable distribution award, the appreciation does not constitute a material change in circumstances warranting modification of support. As such, appreciation of an investment account and the marital residence, acquired in the equitable distribution of the case, was not a material change in circumstances warranting modification of spousal support.

2012—Cid v. Cid, Va. Ct. of Appeals, Unpublished, No. 1952-11-4
The trial court did not err in declining to modify husband’s spousal support obligation, although husband experienced a substantial decrease in employment income since the initial spousal support award. Said decrease did not affect his ability to continue paying his spousal support obligation, nor the wife’s need for continued spousal support.

2012—Smith v. Smith, Va. Ct. of Appeals, Unpublished, No. 1709-11-2
The trial court did not err in terminating husband’s spousal support obligation to wife, despite uncontroverted evidence by wife that her monthly expenses had increased and that husband’s income had increased. Even though wife’s actual spending had increased, the trial court specifically found that her spending decisions were unwise, noting that she had a propensity to “travel and do other things before the rent was paid,” and that subsequent to the divorce, she had twice refinanced a mortgage to remove equity from the home to support her spending, thereby significantly increasing her own mortgage payments. The court also noted that despite its previous ruling in the 1997 divorce that wife was capable of working at least part-time, wife had made only one attempt to seek employment in the thirteen years since the divorce and in the three years since the parties’ only child had left home to attend college. The trial court imputed income to wife, based on testimony of a vocational expert and an accountant, that exceeded the total income upon which the family of three relied during the marriage, and accordingly found a termination of spousal support appropriate.

2012—Dailey v. Dailey, 59 Va. App. 734
The trial court erred in finding that husband’s retirement and the commencement of payments to wife from his pension that resulted therefrom were reasonably foreseeable when the parties entered into their settlement agreement, and thus erred in finding that the retirement was not a sufficient basis for husband’s request to reduce spousal support. The parties’ settlement agreement provided that spousal support would be modifiable based on a material change in circumstances. The parties stipulated at trial that husband’s retirement constituted a material change, but the trial court determined that the change was reasonably foreseeable, given that the parties’ settlement agreement specifically provided for wife to receive a portion of husband’s pension upon retirement. However, uncontested evidence established that, at the time the parties entered into their settlement agreement, Husband had no plans of retiring. Moreover, the settlement agreement was silent on the question of whether spousal support would continue or terminate upon husband’s retirement. Thus, the Court of Appeals found that the agreement furnished no basis upon which to conclude that the parties reasonably contemplated or foresaw the effect of husband’s retirement upon his spousal support obligation, and therefore remanded the case to determine whether husband’s unforeseeable retirement warranted a modification in spousal support.

2011—Driscoll v. Hunter, 59 Va. App. 22
The trial court did not err in requiring husband to show a material change in circumstances in order to modify spousal support, despite the fact that the parties’ original agreement contemplated temporary spousal support that could be modified without a showing of a material change. The parties’ initial agreement called for temporary support, and expressly reserved each party’s right to have final spousal support determined by a court or by subsequent agreement. The parties then incorporated the temporary support agreement into a full settlement agreement, but limited the incorporation by stating that the temporary support agreement was to remain in effect “until modified by further written agreement, adopted as a court order, or adjudication by a Court of competent jurisdiction.” The full settlement agreement also expressly reserved Wife’s right to spousal support “as requested in her complaint for divorce.” The final order of divorce then incorporated the full settlement agreement, but set a permanent award of spousal support for the same amount as contemplated in the parties’ initial agreements. Thus, while the parties’ original agreements clearly contemplated that support was temporary, the final order of divorce, in setting a permanent award, displaced the temporary agreement, thereby triggering the need to show a material change for a subsequent modification.

The trial court did not err in holding that husband’s retirement and resulting reduction in income did not warrant a modification of spousal support, despite the fact that husband was having to invade the principal of certain assets in order to meet his monthly expenses and support obligation. No special consideration is given to income from wages or salary over income from a payor’s other sources. The crucial question, once a material change in circumstances has been shown, is the ability of the supporting spouse to pay. The fact that the payor may have to draw from other sources, such as the principal of investment or savings accounts, in order to make his spousal support payment, does not by itself require the trial court to suspend or reduce his spousal support obligation. Evidence revealed that, despite the reduction in income that resulted from his retirement, husband had significant and sufficient assets with which to maintain his support obligation.

2011—Blair v. Blair, Va. Ct. of Appeals, Unpublished, No. 0864-10-4
The trial court did not err in finding that wife’s eventual receipt of social security income was a circumstance reasonably anticipated by the parties when they entered into their settlement agreement regarding spousal support, despite the fact that wife did not introduce any evidence on the issue. As the party moving for a modification, it was husband’s burden to prove that wife’s receipt of social security income was not reasonably anticipated, and not wife’s burden to prove that it was.

2010—Jamison v. Jamison, Va. Ct. of Appeals, Unpublished, No. 2785-09-2
The trial court did not err in suspending husband’s spousal support obligation based on his unemployment, despite the fact that husband was unemployed when the divorce decree was entered. When the divorce decree was entered, husband was receiving severance pay and applying for unemployment compensation. Evidence of the cessation, then resumption, then ultimate termination of husband’s unemployment benefits since the entry of the final decree constituted a material change in his financial situation.

2010—Johnson v. Johnson, Va. Ct. of Appeals, Unpublished, No. 1887-09-2
Trial court did not err in finding that wife had a continued need for spousal support, where wife testified that she had large medical and car repair bills, was unemployed at the time of the hearing, and struggled to pay her rent and daily necessities. Meanwhile, husband had remained employed with the railroad, had been able to acquire a house, car, and furniture, and though he recently retired, was still able to meet his expenses, including the spousal support obligation.

2010—Amberly v. Amberly, Va. Ct. of Appeals, Unpublished, No. 1783-09-4
Trial court did not err in denying husband’s motion to reduce or terminate spousal support, filed one month prior to the date on which husband was laid off from his law firm. The trial court was not persuaded by husband’s testimony regarding his financial situation, found that evidence indicated that he could have remained employed at the law firm at a reduced salary, and noted that there “was not a full and fair disclosure of husband’s ability to pay spousal support.” The trial court found that any material change that had occurred was “the fault of the husband.” Although wife admitted having experienced an improved financial situation since the entry of the last order, she presented evidence of a continued deficit in income and expenses each month, and evidence that despite having paid husband $100,000 pursuant to the parties’ settlement agreement, husband had nonetheless failed to fulfill all of his obligations thereunder.

2009—Lane v. Lane, Va. Ct. of Appeals, Unpublished, No. 0951-09-4
Trial court did not err in finding that, although Husband’s involuntary decrease in income as a result of the economic downturn was a “material change in circumstances,” that change was nonetheless insufficient to warrant a reduction in spousal support. The court pointed out that husband made very good business decisions, had a much greater earning capacity than wife, and enjoyed a standard of living at the time of the hearing that was better than the standard he enjoyed at the time of the divorce. Furthermore, husband was in good health, whereas wife had been diagnosed with cancer since the divorce, and was therefore in greater need for support now than before.

2009—Williams v. Williams, Va. Ct. of Appeals, Unpublished, No. 1176-08-2
In setting support awards, a court must look to current circumstances and what the circumstances will be within the immediate or reasonably foreseeable future…not to what may happen in the future. What is “reasonably foreseeable” depends on the circumstances of a particular case. (Citing Srinivasan v. Srinivasan, 10 Va. App. 728 (1990)).

Trial court erred in finding that Wife’s increase in passive interest income, which occurred as a result of Husband’s substantial lump-sum payment in satisfaction of an equitable distribution award, was “foreseeable” and therefore not a material change in circumstances upon which a spousal support modification could be based. Although the parties PSA allowed Husband to pay the equitable distribution award over the course of 20 years, Husband paid the entire amount within 4 years of signing the PSA. Furthermore, Wife testified that she “never expected” to receive all of the money due under the PSA.

For purposes of spousal support modification, whether there is one change of circumstances or several changes does not matter, once one material change has been established.

The trial court, on Husband’s motion to modify spousal support, erred in refusing to admit into evidence the budget that wife had previously created at the time the parties entered into the PSA. The proposed budget was clearly relevant and probative to the issue of whether a change in circumstances had occurred since the initial support award, as it showed what wife’s needs were at the time of that initial award.

2009—Nunez v. Nunez, Va. Ct. of Appeals, Unpublished, No. 2020-08-4
When determining whether a material change in circumstances warrants a modification of spousal support, the trial court may consider applicable factors that were previously considered pursuant to Va. Code §20-107.1(E)(1), including the standard of living established during the marriage and the receipt by the payee spouse of a pension benefit of the payor spouse in accordance with the court’s prior equitable distribution award.

Trial court did not err in holding that, despite Wife’s increase in income of approximately $6,000 since the divorce, a portion of which included the initiation of payments from Husband’s pension, Husband nonetheless failed to prove that a modification was warranted. Court specifically noted the standard of living during the marriage and the evidence that, since the divorce, Wife had been unable to maintain that standard despite the increases in her income.

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