Support - Child and Spousal - § 4-3 (D)
2018--- Giambattista v. Giambattista, Va. Ct. of Appeals, Unpublished, No. 1043-17-4
The trial court did not err in denying Husband's motion to reduce his spousal support obligation. After the parties separated, they entered into a property settlement agreement obligating Husband to pay spousal support to Wife, but also providing that Husband's spousal support obligation would be modifiable based on a material change in circumstances, including Husband's retirement. Although the evidence elicited at trial showed that Husband had retired and that his income had diminished overall following his retirement, the evidence also showed that his income remained substantial due to his monthly retirement disbursements, that Husband shared his current living expenses with his new wife, and that Wife's prospects for obtaining a higher income were hampered by her poor health. Thus, although the parties stipulated in their agreement that Husband's eventual retirement would constitute a material change in circumstances for spousal support modification purposes, such a modification was not warranted under the facts elicited at trial.
2017—Ross v. Ross, Va. Ct. of Appeals, Unpublished, No. 0748-17-4
The Court of Appeals remanded the case with instructions for the trial court to provide additional written findings identifying the factors supporting its award of defined-duration spousal support to Wife, or to reconsider the award. Although the trial court made written findings that Wife was intelligent and articulate, and that she was capable of reentering the workforce as an attorney within the next 12-18 months, it also found that Wife had not worked outside the home in many years, and that she had sustained multiple injuries that affected her ability to reenter the workforce. Additionally, the trial court expressly found it had insufficient evidence from which to deduce Wife’s earning capacity. Accordingly, the trial court failed to identify the findings that provide “the basis for the nature, amount, and duration of the award” as required by Code of Virginia § 20-107.1(F).
2017—Boone v. Boone, Va. Ct. of Appeals, Unpublished, No. 0578-17-4
The trial court did not err by refusing to order a modification of Husband’s spousal support obligation retroactive to the date of the husband’s involuntary retirement. The parties’ property settlement agreement (“PSA”) stated that “in the event [Husband] involuntarily retires . . . , spousal support shall be recalculated based upon the incomes of the parties at that time.” The plain language of the PSA, indicated that the support adjustment would take effect at the time of the recalculation, not upon the contingency of Husband’s retirement. Consequently, the PSA did not provide for an automatic change in the amount of Husband’s spousal support obligation upon his involuntary retirement; nor did it contemplate retroactive application of a recalculation by the trial court. This interpretation of the PSA is the most reasonable in light of the plain language of the agreement and accepted principles of construction, and is consistent with the legal principle that when a payment of spousal support falls due and is unpaid, it becomes a vested property right of the party owed the support.
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.
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.