Maddox & Gerock

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Recent Decisions in Family Law

Ozfidan v. Ozfidan, No. 1265-14-2, 2015 WL 1994114 (Va. Ct. App. May 5, 2015)

          Husband appeals several rulings related to equitable distribution and spousal support. The Court of Appeals affirms the trial court's equitable distribution award to wife, but reverses the debt apportionment, the transfer of title of husband's IRA to wife, upon wife's concession, and the trial court's ruling that it would not consider spousal support in spite of husband's request.

          Throughout the parties' marriage Husband was physically abusive to wife, culminating in wife sustaining an ulnar fracture. Wife obtained a two-year protective order against husband and was granted exclusive use of the marital home. Furthermore, the trial court discussed husband's waste of marital assets and that his cruelty to wife caused the dissolution of the marriage. The Court of Appeals affirmed the trial court's award to wife of a greater share of the marital assets.

          The Court also reversed the trial court's apportionment of debt among the parties, when it did not award husband a credit to his portion of the debt as the parties had agreed upon.

          Finally, the Court of Appeals reversed the trial court's decision not to consider spousal support despite the husband's request. Under Werner v. Commonwealth, 212 Va. 623 (1972), either spouse could have petitioned the circuit court for a provision in the final order awarding or denying spousal support. The trial court erred in refusing to consider spousal support simply because wife did not request spousal support in her divorce pleadings.

Wheeler v. Wheeler, No. 2230-14-1, 2015 WL 2370496 (Va. Ct. App. May 19, 2015)

          The Court of Appeals affirms a trial court order allowing mother to relocate with the parties' children to California, in compliance with her Navy orders. In 2013, mother returned from her deployment pursuant to a humanitarian package from the Navy due to father's hospitalization for mental health issues and diagnosis of severe anxiety and depression. The parties subsequently divorced in late 2013. In May 2014, the Navy allowed mother to select five options for reassignment. She listed San Diego, California, as her family lives primarily on the West Coast, and also a location in Virginia. After receiving transfer orders to California, mother petitioned the court for leave to relocate with the children. Father objected. The trial court permitted mother to relocate with the children and ruled the parties would share custody equally "as nearly as practicable", with Father having the children for the summers and liberal visitation in California.

          The Court of Appeals held that the trial court did not rely on the Virginia Military Parents Equal Protection Act to give preferential treatment to mother and did not establish a different burden of proof because the mother was a member of the military. Further, the trial court specifically stated the controlling factor to be the best interests and well being of the children. When considering the factors set forth in Va. Code Sec. 20-124.3, the trial court found the mother to be the breadwinner and that father's mental health issues prevented him from being able to care for the oldest two children for extended period of time. The children would benefit from mother's relocation because she would continue to serve and thus they would have a parent with regular income and benefits. At the time of final custody order Father did not have a fulltime job and worked as a maintenance man in exchange for paying rent. Furthermore, the children would benefit from being cared for by their mother and grandmother, as well as having contact with mother's extended family. The trial court provided for extensive in-person, telephonic and electronic visitation between father and the children to ensure he could maintain his relationship with them.

Deluca v. Deluca, No. 1158-14-3, 2015 WL 2369407 (Va. Ct. App. May 19, 2015)

          The Court of Appeals affirmed the trial court's order requiring husband to pay to wife $4,373 in spousal support as based upon the plain and ordinary meaning of the language of the agreement. The Court also affirmed the trial court's finding that husband failed to pay spousal support obligations in the amount of $121,976.

          Husband argues the trial court erred by ruling that husband's obligation pursuant to the parties' agreement was a monetary obligation. The agreement provided that "[h]usband shall support [w]ife in the manner to which she is accustomed and is currently being supported, recognizing the need of [w]ife to educate and nurture [their child]". Husband asserts that the trial court improperly awarded an arbitrary dollar amount on husband's obligations and should have considered wife's lifestyle during the marriage.

          The trial court found that at the time the parties entered into the agreement in 2008, they were seeking to ensure that wife and child would continue to live in the manner as to which they were accustomed and currently being supported by wife. At trial, the parties agreed that they experienced a lifestyle change in 2006 when they purchased their home in central Virginia. For just over a year prior to the execution of the agreement, wife had been living a largely upper-middle class lifestyle and been receiving a monthly average of $4,373. From May, 2010 until trial, husband paid wife only one payment of $4,373, and thus had failed to pay his spousal support obligations in the amount of $121,976.

Caruthers v. Bean, Circuit Court for Fairfax County

          Lastly, in a recent issue of Virginia Lawyers Weekly, there was a summary regarding a case worked on by Julie C. Gerock and Sarah L. Payne. In Caruthers v. Bean, Ms. Gerock and Ms. Payne successfully argued that a husband's business perks should be counted as income when calculating child support. For more information see: http://valawyersweekly.com/2015/06/12/company-paid-expenses-are-income-for-father/

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