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

(D) Modification

2008—Rogers v. Rogers, 51 Va. App. 261
The trial court erred in concluding that Husband, in support of his motion to modify spousal support, was required to present the same type of evidence pertaining to his reasonable business expenses as he presented in the previous litigation of the issue. Although the evidence was not of the same type, the trial court previously made findings of fact as to the amounts of his business expenses, and therefore needed evidence only as to the change in the amount of those expenses for purposes of considering a support modification on those grounds.

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.

2007—Brown v. Brown, Va. Ct. of Appeals, Unpublished, No. 1676-06-2
Trial court did not abuse its discretion in failing to modify its prior decision not awarding Husband spousal support where court found only a slight change in circumstances since the original request for support in 2002 and where the court found that the reduction in the rental income was more than offset by the monies Husband received and was scheduled to receive from the sale of marital properties.

2007—Mooney v. Mooney, Va. Ct. of Appeals, Unpublished, No. 1961-06-4
Trial court did not err in refusing to modify Husband’s spousal and child support obligations to the extent he sought. The trial court was not persuaded by Husband’s evidence regarding his reduced income and provided a reasoned explanation for its ruling.

2007—Furr v. Furr, Va. Ct. of Appeals, Unpublished, No. 2624-06-3
Trial court erred in its decision to modify, and ultimately terminate, Wife’s spousal support because it failed to take into consideration the factors set forth in Va. Code §20-107.1, and because the record fails to show that Husband proved a material change in circumstances.

2007—Jett v. Jett, Va. Ct. of Appeals, Unpublished, No. 2862-06-4
Trial court did not err in finding pursuant to the version of Va. Code §20-109 in effect at the time the trial court entered the parties’ final decree of divorce, that the Property Settlement Agreement had been filed at or prior to the time of entry of the final decree. Even though nothing in the record establishes that the Property Settlement Agreement was formally “filed” with the court, the Court of Appeals found that the ratification and incorporation of the Property Settlement Agreement into the final divorce decree of divorce supports the result the trial court reached which denied Husband a reduction or termination of spousal support. Additionally, the record makes clear that no dispute exists over the authenticity of the Property Settlement Agreement or its specific contents.

2007—Lesesne v. Zablocki, Va. Ct. of Appeals, Unpublished, No. 0334-06-4
Where court remanded the issue of equitable distribution, it also remanded the issue of spousal support.

2007—Tuck v. Tuck, Va. Ct of Appeals, Unpublished, No. 2731-06-2
Trial court did not err in determining a change in Wife’s earning capacity and imputed income to her based on expert testimony, constituting a basis for reducing her spousal support. The trial court appropriately phased in the imputed income over a six-month period in order to give Wife an opportunity to secure employment. Wife was currently only responsible to one teenage daughter. By contrast, at the time of the divorce, Wife was responsible for the care of two pre-teenage children, who were experiencing emotional problems from the trauma of the parties’ separation.

2006—Miller v. Miller, Va. Ct. of Appeals, Unpublished, No. 1168-06-3
Trial court did not err in denying Wife’s motion to increase spousal support. There was no ambiguity in the Property Settlement Agreement that requires each party to be responsible for medical insurance premiums.

Trial court did not err in denying Wife’s motion to increase spousal support. The term that each party would be responsible for his/her medical insurance premiums, as found in the Property Settlement Agreement, was not ambiguous. Even though Wife’s medical insurance costs increased, she was not entitled to an increase in spousal support under the terms of the agreement she signed while represented by counsel.

2005—Barrs v. Barrs, 45 Va. App. 500
Substantial passive earnings on Wife’s equitable distribution award does not constitute a material change in circumstances as trial court knew of passive earnings at time of original rulings.

2001—Rubio v. Rubio, 36 Va. App. 248
Va. Code §20-109(A) does not allow Husband to modify Wife’s spousal support on the basis of her cohabitation, where spousal support obligation is based upon agreement protected from court modification by Va. Code §20-109(C).

2000—Lane v. Lane, 32 Va. App. 125
If spousal support is pursuant to an agreement between the parties, it can be modified only if the agreement so allows.

1999—Barton v. Barton, 31 Va. App. 175
Entry of child support order does not constitute material change in circumstances for purposes of modification of spousal support.

1999—Blackburn v. Michael, 30 Va. App. 95
Where an agreement regarding spousal support expressly provides for future judicial modification of the agreed support without also providing any separate criteria for determining how or when to modify, the statutory standard shall apply, which is whether a material change of circumstances has occurred. Here, the trial court erred by requiring Husband to prove "a very dramatic change" or "a real clear, meaningful, significant material change in circumstances" since the prior order incorporating the agreed support.

1997—Reid v. Reid, 24 Va. App. 146
Upon petition of either party, a court may modify spousal support as the circumstances may make proper. See Va. Code §20-109. 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 material change in circumstances must have occurred after the most recent judicial review of the award, and must bear upon the financial needs of the dependent spouse or the ability of the supporting spouse to pay. The circumstances which make proper an increase, reduction or cessation of spousal support under Va. Code §20-109 are financial and economic ones.

1997—Head v. Head, 24 Va. App. 166
A change in child support cannot be deemed a circumstance material to a spousal support award.

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—Brett v. Brett, Va. Ct of Appeals, Unpublished, No. 1511-95-4
Support may be modified from date of petition at trial court's discretion.

1996—Allison v. Allison, 1996 Va. Ct of Appeals, Unpublished, No. 1516-95-4
A consideration of all of the factors in Va. Code §20-107.1 is not required upon a motion to amend award under Va. Code §20-109. Moving party must prove both a material change in circumstances and that change warrants a modification of support. Changed circumstances must bear upon the financial needs of the dependent spouse or the ability of the supporting spouse to pay. Hollowel, 6 Va. App. 417 (1988).

1996—Brown v. Brown, Va. Ct. of Appeals, Unpublished, No. 1978-95-4
Second motion to reduce spousal support due to retirement denied on res judicata grounds.

1996—Elliott v. Elliott, Va. Ct. of Appeals, Unpublished, No. 2921-95-3
Husband's income decreased after taking early retirement. Motion to reduce spousal support denied. Affirmed.

1996—Mullin v. Mullin, Va. Ct. of Appeals, Unpublished, No. 2731-95-4
Trial court did not err in refusing to reduce spousal support despite Wife's increased income.

1996—Riley v. Riley, Va. Ct. of Appeals, Unpublished, No. 0637-96-3
In modifying spousal support fourteen years post divorce, trial court considered Wife's current needs and Husband's current ability to pay. Award affirmed despite Husband's argument that he was having to fund a stepped up lifestyle.

1996—Sutherland v. Sutherland, Va. Ct. of Appeals, Unpublished, No. 0943-96-3
Unemployed Wife took part time job paying $210.00 per week. Husband obtained reduction of support from $800 to $600 per month and appealed. Affirmed.

1995—Peterson v. Peterson, Va. Ct. of Appeals, Unpublished, No. 0451-94-3
Trial court did not err in terminating husband’s spousal support obligation and refusing to impute to husband his pre-retirement income, despite the fact that husband had voluntarily elected early retirement to care for his ill second wife. Wife’s income had increased by approximately $26,500 in the five years since the initial support award, and by all indications, her standard of living had improved after the divorce.

1995—Buxbaum v. Buxbaum, 20 Va. App. 181
A spouse ordered to pay support must pay according to the terms of the decree, and payments made in excess of the amount ordered are gifts or gratuities and cannot be credited to his obligation to pay the support award.
Husband was not entitled to credit against his spousal support obligation for overpayments of child support made to wife, where the parties never agreed nor had an understanding of any kind that the overpayments of child support were to be applied to future spousal support obligations.

1993—Hiner v. Hadeed, 15 Va. App. 417
The material change in circumstances must have occurred after the most recent judicial review of the award.

1988—Hollowell v. Hollowell, 6 Va. App. 417
The material change must bear upon the financial needs of the dependent spouse or the ability of the supporting spouse to pay.

1985—Floyd v. Floyd, 1 Va. App. 42
Husband’s motion to reduce spousal support was denied as he did not prove a material change in circumstances.

(E) Pendente Lite

2015—MacDougal v. Levick, 66 Va. App. 50
Although the trial court declared the parties’ marriage a nullity, the court did not err in refusing to order Wife to disgorge the pendente lite spousal support and attorney’s fees paid by Husband during the divorce and annulment litigation. Code of Virginia § 20-96 provides circuit courts with jurisdiction over suits to annul or affirm marriages and for divorces. The potential jurisdiction of a court, when properly invoked, is sufficient to sustain the exercise of the power of the court to do all things necessary or proper to perfect its actual jurisdiction and to preserve the status quo while so doing. That is precisely the object of certain interlocutory orders, including pendente lite support orders, in divorce and annulment suits. They preserve the status quo until the ultimate entry of the decree of divorce or annulment. Thus, although a marriage may ultimately be declared void, that does not alter a trial court’s power, expressly conferred by statute, to enter certain orders during the pendency of the litigation.

2013—Naseer v. Moghal, Va. Ct. of Appeals, Unpublished, No. 2186-12-4
It was within the proper discretion of the trial court to order wife to reimburse husband for pendente lite support paid during annulment proceedings where the trial court held that the wife committed bigamy, that her marriage to husband was void ab initio, and that the marriage conferred no legal rights on either party.

2011—Campbell v. Campbell, Va. Ct. of Appeals, Unpublished, No. 1481-10-2
The reversal of a decree or order resurrects a previous order for pendente lite support only when the initial order that was reversed was void ab initio. The trial court properly refused wife’s request for spousal support arrearages that wife claimed accrued on a pendente lite spousal support award between the time that the trial court rendered a final order of divorce and the time the trial court heard the case on remand from the Court of Appeals. The Court of Appeals’ remand on the first appeal did not deal with spousal support or the underlying authority of the trial court. Thus, the trial court’s final order with regard to spousal support was not void ab initio, and thus, the reversal and remand of that order did not resurrect the trial court’s previous pendente lite support order.

2007—Becker v. Becker, Va. Ct. of Appeals, Unpublished, No. 1172-06-4
Trial court did not err by reimbursing Husband the entire amount of the mortgage payments he made pendente lite because it had increased Husband’s support obligation retroactively to the time of the filing of the bill of complaint.

2007—Ipsen v. Moxley, 49 Va. App. 555
An award of pendente lite support in a suit between parties is an interlocutory order that does not adjudicate the principles of a cause and is therefore not appealable.

2007—Ipsen v. Moxley, 49 Va. App. 555
A Husband voluntarily taking a nonsuit in a pending divorce case does by operation of law terminate Wife’s right to further pendente lite spousal support. However, if there is a juvenile spousal support order that was granted prior to the divorce proceeding, the granting of the voluntary nonsuit automatically and effectively restores the juvenile court’s jurisdiction and operation of its prior support order.

1996—Frazer v. Frazer, 23 Va. App. 358
Abuse of discretion for trial court to find that Wife had need for spousal support and that Husband had ability to pay, yet allow a gap in support payments pendente lite extending to one month after entry of decree.

1991—Pinkard v. Pinkard, 12 Va. App. 848
In domestic relations cases, the matter of pendente lite support remains within the control of the court while the matter is still pending before it, and the court is free to modify or vacate its orders without expressing the basis for its action.

1991—Weizenbaum v. Weizenbaum, 12 Va. App. 899
Va. Code §20-103 does not require the same considerations on pendente lite spousal support awards that Va. Code §20-107.1 requires for spousal support upon the decree of divorce. Instead, Va. Code §20-103 requires only that pendente lite awards of spousal support be “necessary for the maintenance and support of the petitioning spouse” or “to enable such spouse to carry on the suit.” Pendente lite spousal support may be awarded irrespective of the spouse’s right to receive support following the dissolution of the marriage. Thus, an award of Va. Code §20-107.1 spousal support made pursuant to Va. Code §20-103 criteria would be erroneous as would an award of Va. Code §20-103 pendente lite support based upon the criteria of Va. Code §20-107.1.

1987—Smith v. Smith, 4 Va. App. 148
The dismissal of a pending divorce case by operation of law terminates Wife’s right to further pendente lite spousal support.

(F) Right to

2015—Lamb v. Lamb, Va. Court of Appeals, Unpublished No. 2201-14-4
Spouses deemed entitled to support have the right to be maintained in the manner to which they were accustomed during the marriage, but their needs must be balanced against the other spouse’s ability to pay. The balance must be struck and awards made upon the basis of the circumstances disclosed by the evidence at the time of the award.

2002—Shoustari v. Zamani, 39 Va. App. 517
Wife was not eligible for spousal support where her void marriage was annulled.

1996—Kelderhaus v. Kelderhaus, 21 Va. App. 721
Spousal support not available because marriage was bigamous and consequently void.

1996—McClure v. McClure, Va. Ct. of Appeals, Unpublished, No. 2569-95-4
Right to request spousal support survives ex parte foreign divorce decree.

1992—Via v. Via. 14 Va. App. 868.
In a divorce case, where the spouse making a claim for spousal support was not at fault in the breakdown of the marriage, the law imposes a duty upon the other spouse, within the limits of his or her financial ability, to maintain his or her former spouse according to the station of life to which he or she was accustomed during the marriage. In this case, the trial court erred in denying spousal support to the wife without sufficient explanation. Wife, a homemaker and mother for most of the parties’ marriage, earned little or no income except in the early years of the marriage, and despite obtaining employment post-separation, suffered a significantly diminished standard of living in comparison to that enjoyed during the marriage. Husband, who earned roughly four times that of Wife, had the financial ability to provide support.

(G) Reservation of Right

2013—Wright v.Wright, 61 Va. App. 432
The trial court did not err in granting a reservation of spousal support rights to a party who did not request the reservation prior to or during her divorce trial. The Court of Appeals found that a request for a reservation of spousal support rights was implicit in wife’s request for spousal support. Since there was no legal bar to an award of spousal support and the wife requested a reservation of spousal support rights in time for the court to act, a reservation of spousal support rights was proper.
The trial court committed reversible error when it did not specify the duration of the reservation of spousal support rights. Without a specified duration, the reservation could be construed as without an end date. The duration of a reservation of spousal support rights is governed by rebuttable presumption found in Va. Code 20-107.1(D). Since wife failed to rebut the presumption at trial, her reservation of spousal support could not exceed the amount prescribed by the statute.

2010—Stephenson v. Musgrave, Va. Ct. of Appeals, Unpublished, No. 1903-09-3
The trial court erred in refusing to reserve husband the right to seek future spousal support pursuant to Va. Code §20-107.1(D), based solely on husband’s financial situation at the time of the hearing and his attempts to hide assets during the divorce proceedings. Husband’s financial situation at the time of the hearing did not speak to his financial situation in the future, nor can the trial court punish him for his attempts to hide assets by denying him a reservation of the right to seek future support. Where there is no bar to the right of spousal support based on divorce grounds, it is reversible error for the trial court to fail to make a reservation in the decree of the right to seek spousal support in the event of changed circumstances.

2006—Harrell v. Harrell, 272 Va. 652
Trial court erred in adjudging that Wife was entitled to a reservation of the right to request spousal support where there was no valid pleading requesting permanent spousal support before the court. Her bill of complaint was properly dismissed as premature; her amended bill of complaint was properly dismissed for failing to comply with Rule 1:8 to obtain leave of court before filing; her motion for pendente lite support was inadequate to obtain permanent spousal support; and her omnibus motion did not contain an independent request for spousal support and the court did not rule on the request to deem prior dismissed pleadings as a request for permanent spousal support or to consider an amended bill of complaint to be an answer to a cross bill.

1998—Vissicchio v. Vissicchio, 27 Va. App. 240
Where there is no bar to the right of spousal support, it is reversible error to fail to reserve right to receive spousal support upon the request of either party.

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).

1990—Srinivasan v. Srinivasan, 10 Va. App. 728
A reservation of spousal support must be made if requested.

(H) Termination (1) Generally

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.

2007—Ipsen v. Moxley, 49 Va. App. 555
A Husband voluntarily taking a nonsuit in a pending divorce case does by operation of law terminate Wife’s right to further pendente lite spousal support. However, if there is a juvenile spousal support order that was granted prior to the divorce proceeding, the granting of the voluntary nonsuit automatically and effectively restores the juvenile court’s jurisdiction and operation of its prior support order.

1997—Bergman v. Bergman, 25 Va. App. 204
Property Settlement Agreement provided that spousal support shall cease if Wife resides with another man. Facts were that Wife did not reside with another man. “Shall cease” means end permanently.

1997—Reid v. Reid, 24 Va. App. 146
An existing order of spousal support survives a subsequent decree of divorce which is silent on the issue.

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