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Recent Decisions Regarding Modification of Spousal Support

Virginia law regarding the modification of a spousal support award is plentiful. Here are a few recent decisions:

Blair v. Blair, No. 2242-14-4, 2015 WL 1994376 (Va. Ct. App. May 5, 2015)

The Court of Appeals affirms finding no material change in circumstances warranting modification of support where Wife's income had increased slightly, but husband's income had increased more since the initial spousal support payment was set.

Husband argues the trial court erred in finding no material change in circumstances because evidence showed he fully retired and had no income from employment, and also that wife's income had increased. However, the trial court found that despite his retirement, he had increased financial resources available to him than at the time when the initial support obligation was set.

Husband also argued that the trial court erred in finding no material change in circumstances when wife's income had increased. The trial court determined that although wife's income had increased, it was by a lower amount than the husband's increase in income. Even though wife's income had increased from the time of the initial spousal support award, it was not a material change in circumstances, especially since husband's income had significantly increased during that time.

Harris v. Harris, No. 0006-15-3, 2015 WL 1994753 (Va. Ct. App. May 5, 2015)

The Court of Appeals affirms trial court finding that final order of divorce was a consent order and that the trial court did not have the authority to modify the spousal support provision therein. The parties' final order of divorce provides, "By agreement of the parties and counsel, the defendant shall pay spousal support to the complainant in the following amounts: $300.00 per month beginning on May 1, 1995; $400.00 per month beginning on July 1, 1996; and $500.00 per month beginning on August 1, 1998, to be paid on the first day of each month."

Although the trial court found that the husband did not have the ability to pay spousal support and that wife had the ability to meet her needs, the trial court determined that the spousal support provision was an agreement between the parties and not a court award. The final order included the terms of the parties' agreement on spousal support, and thus the order acted as a stipulation or contract for the parties. Further, the language of the order does not provide for modification of the support.

Lamb v. Lamb, No. 2201-14-4, 2015 WL 2190947 (Va. Ct. App. May 12, 2015)

The Court of Appeals affirms order denying husband a modification in his spousal support obligation to wife. The parties were married in 1989 and divorced in 2013, the final order required husband to pay $8,500 per month in spousal support to wife based upon husband's 2012 income. In 2014, husband sought a modification upon grounds that his 2013 income was significantly lower than his 2012 income and that his 2012 income was the highest annual income since starting his business in 1993.

The trial court found a material change in circumstances because husband's income had decreased, but that the change did not warrant a modification of support. The trial court found that wife's income and need for support had not changed materially since the time of divorce. The trial court also noted that since the divorce, and while paying spousal support, husband had been on two cruises, had no credit card debt, purchased a new car and boat and made discretionary payments to a third party. Additionally, husband elected not to receive social security even though eligible and was saving approximately $9,000 per month by refinancing his mortgage.

The trial court found credible testimony by a CPA who found that husband could increase his income by doing more work himself and farming out less work to subcontractors. Also, husband had made a paramour a partner in the business and was paying her considerably more than would be expected from her experience, and awarded her a bonus of $41,613 for apparently no reason.

Cook v. Cook, No. 2104-14-2, 2015 WL 2190326 (Va. Ct. App. May 12, 2015)

The Court of Appeals summarily affirms order reducing, but not terminating, husband's spousal support obligation. Husband argued that the trial court erred in finding that the change in circumstances did not warrant a modification of spousal support. Since the last support order, wife's income had increased from $36,000 to $80,000 and husband's income had increased from $150,000 to $175,000. The trial court acknowledged that husband's financial resources were limited due some recent financial difficulties, but that husband's present wife, with an annual income of $99,000, is able to contribute to their household expenses. Also, wife's financial situation also changed. She was now paying student loans and receiving less support from husband since child support payments ceased.

Given that husband had ability to pay support and that his income had increased since the last support order, the trial court reduced husband's spousal support obligation by $400 per month. The Court of Appeals affirmed, determining that the trial court did not abuse its discretion in reducing and not terminating husband's support obligation.

Lastly, husband argued, unsuccessfully, that the trial court failed to consider the length of the parties' marriage-that husband had been paying spousal support for a period longer than the duration of the marriage-when it reduced and did not terminate spousal support.

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