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

(E) Pendente Lite

2018—Everett v.Tawes, Va. Ct. of Appeals. Rec. No. 1838-17-1
The trial court did not err in denying Husband’s request to modify retroactively the accrued pendente lite arrearages. Husband argued that a pendente lite order is a temporary order which can be modified and is intended to preserve the parties’ status until a final decree of divorce is entered. The only instance in which restitution for payments can be granted is if the payee spouse remarries and fails to notify the payor spouse. The court concluded that established case law does not permit the retroactive modification sought by Husband.

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 of Appeals, Unpublished, No. 2186-12-4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 of Appeals, Unpublished, No. 1481-10-2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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