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Legal Updates: February 2017

Vested Spousal Support cannot be Modified

Guan v. Ran, 0968-16-4, 2017 Va. App. LEXIS 30 (Va. App. 2017) (Unpublished)

The trial court may not retroactively modify spousal support that has already vested, even if the spouse has agreed to waive that support.

The Court of Appeals reversed the Circuit Court's decision to modify a lump sum spousal support award, which the Court of Appeals concluded was a vested right once the Final Order of Divorce was entered. A vested right is a right belonging unconditionally to a person as a property interest which cannot be taken away. The 2007 Final Order of Divorce, which had incorporated the parties' Property Settlement Agreement, required the husband to pay a lump sum payment of spousal support. Pursuant to the Property Settlement Agreement, the Husband was given the option to pay over five consecutive years. In 2008, the parties entered into an Amended Property Settlement Agreement. The amendment waived the wife's right to spousal support. Under the authority of Va. Code 20-109(C) the trial court incorporated the amended agreement on May 13, 2016. In doing so, the Circuit Court held that the wife had waived the lump sum spousal support from the Property Settlement Agreement and the 2007 Final Order of Divorce.

The Court of Appeals held that all of the support was vested once the Final Order of Divorce was entered. Thus, the Circuit Court erred by retroactively modifying the support. While husband was given the option to pay over five consecutive years, the language of the Final Order of Divorce required that he pay a "lump sum" of spousal support. Thus, the day the order was entered the wife had a fully vested right to spousal support. Once spousal support has vested, the Circuit Court may not modify the vested portion of the spousal support.

Read the full case here

Do not Spend Marital Funds on your Paramour

Wiley v. Wiley, 0844-16-4, 2017 Va. App. LEXIS 33 (Va. App. 2017) (Unpublished)

While marital funds may be used for proper purposes during the separation, the court will likely find that a party has wasted marital funds if they are used for purposes such as an on-going adulterous relationship.

In this case, the Court of Appeals affirmed the Circuit Court's holding that the husband had wasted marital funds. The husband had used marital funds for some proper purposes, such as paying the marital mortgage. However, he also used marital funds to pay off his credit card. His credit card was used to furnish a lavish apartment for himself and his paramour, as well as go on multiple vacations, and enjoy expensive dinners with his girfriend. The husband failed to trace all of the marital funds to proper purposes. Prior to the separation, the parties had over $300,000 in savings. On the date of trial, they had only approximately $50,000.00. With this evidence, it was not an abuse of discretion to find the husband had wasted marital funds.

It is proper for the trial court to consider the economic and non-economic impacts of an affair on a marriage.

The Court of Appeals, also held that the trial court was not punishing the husband for his affair when it reviewed the economic and non-economic effects of the affair when determining equitable distribution. Regarding the non-economic effects, the parties' minor child had taken the husband's "breaking up [their] family" hard. Furthermore, the husband had testified that he missed visitation with his child to vacation with his girlfriend. This behavior may have been motivated by the fact that the paramour had informed the husband that his relationship with his minor child was negatively impacting his relationship with her. Considering these factors, it was not an abuse of discretion to consider the effect of the affair when considering equitable distribution.

Read the full case here.

Be Mindful of the JDR Court's 10-Day Appeal Period

Marriott v. Anderson, 0590-16-4, 2017 Va. App. LEXIS 43 (Va. App. 2017) (Unpublished)

When a party appeals a case from the Juvenile and Domestic Relations Court, she must file the appeal within ten days or the appeal will be dismissed.

The Court of Appeals reversed the Circuit Court after it had accepted several de novo appeals from the Juvenile and Domestic Relations Court (JDR Court), one of which was filed after the ten-day appeal period. On May 14, 2015, the JDR Court had entered two separate orders. One resolved the father's arrearages to the mother ("arrearages order"). The other required the mother to pay child support ("child support order").

The mother appealed the arrearages order on May 21, 2015, which was filed timely. However, she appealed the child support order on May 27, 2015, which was filed late. The father moved to dismiss the child support case because of the late appeal. He also moved to dismiss the arrearages case on the basis that it was moot without the child support appeal. The Circuit Court denied his motions to dismiss. The Court of Appeals agreed with the father and reversed the Circuit Court on both matters.

Read the full case here.

To Modify Child Support Based on Changed Income, you Must Prove the Income Used in Last Order

Ford v. Johansen, 1125-16-2, 2017 Va. App. LEXIS 31 (Va. App. 2017) (Unpublished)

When determining if a change in income constitutes a material change in circumstances to modify child support, the court must review the income of the parties that was used when determining the last child support order.

The Court of Appeals upheld the Circuit Court decision denying a modification of child support, based on a material change in circumstances, related to income earned by both parties. The last child support order was entered in 2014 and incorporated the parties' 2013 Property Settlement Agreement. During the modification hearing, the court sustained an objection as to evidence of the mother's 2013 employment and earnings, because it pre-dated the entry of the last order. No evidence was proffered related to mother's income at the time the original child support agreement was made. The Court of Appeals held that the Circuit court erred in sustaining the objection. This information was vital because 2013 was the baseline used for the most recent order. Based on the evidence in the record, the Court could not determine whether there was a material change in circumstances since the last award.

On appeal, the father also argued that he did not have to prove a material change in circumstances, because there had been a statutory change to the child support guidelines since the last child support order was entered. The Court disagreed, holding that only "substantive and significant" changes to Va. Code ยง20-108.2 removes the material change in the circumstances requirement.

Read the full case here.

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