The Interplay Between Bankruptcy and Divorce Law in Virginia

Can a foreign divorce decree be challenged in Virginia?

Yes, the Supreme Court of the United States ruled in the case of Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945) http://scholar.google.com/scholar_case?case=11901843596649770914&q=williams+v.+state+of+north+carolina&hl=en&as_sdt=80000000000002. While the Williams case does not directly concern Virginia law or bankruptcy law, the case has had far reaching implications on the extent to which each state must respect the judgments of her sister states, including divorce decrees affecting spousal support or alimony, property division, equitable distribution, or the allocation of marital debts, when one spouse leaves Virginia and obtains a divorce in a different state.  The validity of a foreign divorce can impact bankruptcy by its effects on property transfers and financial obligations.

In Williams, a man and a woman, domiciled in North Carolina, left their spouses in North Carolina in order to obtain decrees of divorce in Nevada. The Nevada court granted the petitioners divorce decrees since it found that they had been residents in Nevada for more than six weeks immediately preceding the commencement of their divorce action, as required by Nevada law.

After obtaining their divorce decrees, petitioners were married in Nevada then returned to North Carolina to live. Subsequently, the petitioners were prosecuted in North Carolina for bigamous cohabitation.  Petitioners pleaded not guilty and offered copies of the Nevada proceedings, contending that the divorce decrees and the Nevada marriage were valid in North Carolina as well as in Nevada. The state contended that since neither of the defendants in the Nevada actions were served in Nevada nor entered an appearance there, the Nevada decrees would not be recognized as valid in North Carolina.  North Carolina further contended that petitioners went to Nevada not to establish a bona fide residence but solely for the purpose of taking advantage of the laws of that state to obtain a divorce thru fraud upon that court.

The United States Supreme Court held that, upon the record, the judgments of conviction were not invalid as denying the Nevada divorce decrees the full faith and credit required by Art. IV, § 1 of the Constitution. http://topics.law.cornell.edu/constitution/articleiv. Under our system of law, judicial power or jurisdiction to grant a divorce must be founded upon domicile.  Domicile is defined as a person’s legal home or permanent residence.  Domicile implies a connection between a person and a place beyond mere physical presence, but also an intention to return there or an intention to stay for the indefinite future. Here, the petitioners were domiciled in North Carolina and the Nevada court lacked personal jurisdiction. See Haddock v. Haddock, 201 U.S. 562 (1906). http://scholar.google.com/scholar_case?case=6758624838835090969&q=haddock+v.+haddock&hl=en&as_sdt=80000000000002   Hence, A decree of divorce rendered in one State may be collaterally impeached in another by proof that the court which rendered the decree had no jurisdiction, even though the record of the proceedings in that court purports to show jurisdiction.

You should consult with your Virginia divorce lawyer concerning the validity of your foreign divorce.

Must the marital status of a husband and wife be recited on the face of a deed in Virginia in order to create a valid tenancy by the entirety?

Ideally, the creation of a tenancy by the entirety in Virginia includes three elements in the granting clause of the document creating or evidencing the transfer of title: (1) the marital status of the parties as husband and wife; (2) the language “as tenants by the entirety” or the term “tenancy by the entirety”; and (3) language of survivorship such as “with the common-law right of survivorship” or “with the right of survivorship as at common-law”.  (Apart from the language, the tenancy itself requires five unities of time, title, interest, marriage and possession, as discussed below).  Thus a typical clause might state the property is conveyed to John Doe and Mary Doe, husband and wife, as tenants by the entirety with the common-law right of survivorship.

 What happens when one of these elements is missing?  Does a tenancy by the entirety exist, such that the property is protected from the creditors of either spouse alone, or is the property vulnerable because the husband and wife hold title as joint tenants or tenants in common?

 There appears to be a split of authority in case law between the courts in the Eastern and Western Districts of Virginia when the marital status is missing.  In Sampath, 314 B.R. 73 (Bankr. E.D.Va.,2004), a Chapter 7 bankruptcy debtor claimed as exempt by virtue of a tenancy by the entirety, his interest in a condominium unit owned by him, his wife, and their child as joint tenants with the common-law right of survivorship. The Trustee objected on the ground that debtor’s marital status was not recited in the deed. http://scholar.google.com/scholar_case?case=9711136255084703349&q=SAMPATH&hl=en&as_sdt=80000000000002. The Sampath opinion centered heavily on the common law principle that property owned by husband and wife with right of survivorship was deemed to be held as a tenancy by the entirety. See 41 Am.Jur.2d, Husband and Wife, § 31 (2004). Under Virginia law, if husband and wife hold property in a tenancy by the entirety, the joint property is immune to the claims of a creditor of one spouse alone, as explained more fully in answer to the question, “Is my Virginia real estate vulnerable to creditors when I divorce?”,  http://bankruptcydivorceblawg.com/?page_id=43 . Only joint creditors may subject the property to a lien or judgment.

Sampath also relies on the Allen v. Parke, decision, a Supreme Court of Virginia case. 154 Va. 739, 149 S.E. 615 (1929)http://scholar.google.com/scholar_case?case=338136126800865964&q=allen+v.+parkey&hl=en&as_sdt=80000000000002. In Allen, the court found that a conveyance to a husband and wife during marriage with language of survivorship created a tenancy by the entirety even though the exact language of “tenancy by the entirety” was never used in the deed. Sampath agreed with the Allen court and held that a parties’ marriage was sufficient to create a tenancy by the entirety without any reference to the marriage made in the document purporting to give title.

The holding in Sampath by the United States Bankruptcy Court for the Eastern District of Virginia contrasts with the U.S. District Court for the Western District Court of Virginia in Wolfe v. Sprouse, 183 B.R. 739 (W.D.Va.1995), an appeal of a bankruptcy court decision. http://scholar.google.com/scholar_case?case=3639692446092573012&q=wolfe+v.+sprouse&hl=en&as_sdt=80000000000002 .  In Wolfe, the district court reversed the bankruptcy court judge and held that two promissory notes payable to the debtor and his spouse, “or the survivor” were not held as tenants by the entirety property because “the language of the [instrument] … lack[ed] even the hint of a marital relationship.”  The court noted that five unities must exist to create a tenancy by the entirety:  the unities of interest, title, time, marriage, and possession.  In this case, as distinguished from the Allen case, the language indicating the unity of marriage was wholly absent from the instrument.

You should consult with your Virginia bankruptcy lawyer to discuss whether property held by you and your spouse, husband or wife, may be exempt in bankruptcy.

Does the noncustodial father’s child support obligation extend to paying for orthodontic treatment or braces in Virginia?

In Barrett v. Kantz, Record No. 2506-09-1, http://scholar.google.com/scholar_case?case=9518089267098094940&hl=en&as_sdt=2&as_vis=1&oi=scholarr the Court of Appeals of Virginia, ruled that child support can be modified to include orthodontic expenses if such expenses are reasonable and necessary.

 In Barrett, the parties were divorced in Virginia after twelve years of marriage.   The father was awarded primary physical custody of the two children of the marriage for the first four years after the divorce, until the court ordered a change in primary physical custody to the mother due to visitation conflicts.  By an agreement of the parties, the mother would not receive child support for a year.  After three months, the mother filed a motion to amend or review child support in the Juvenile and Domestic Relations District Court, which was denied.  The mother then appealed to the Virginia Circuit Court for a de novo hearing, as provided by Virginia Code Section 16.1 – 296, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+16.1-296  . The mother sought child support and the children’s orthodontic expenses.  Section 20-108.2(D) of the Code of Virginia provides that a child support order shall provide that the parents pay, in proportion to their gross incomes, for the reasonable and necessary unreimbursed medical and dental expenses in excess of $250 per calendar year for each child (the custodial parent being responsible for the first $250 as included in basic child support) http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-108.2  .  The divorce court judge received evidence documenting the need for orthodontic treatment or braces for both children. After considering the orthodontist recommendation, the Circuit Court judge found that the older child’s need for orthodontic work was “more urgent” than that of the younger child.  Additionally, the Virginia Circuit Court judge found that orthodontic treatment for the younger child was not “urgently needed or compelling at this time such as to justify an additional expenses at this time.” Since the mother failed to show that the younger child’s orthodontic expenses were reasonable and necessary as required under Virginia Code § 20-108.2(D), the trial court ordered the father to pay for only the older child’s orthodontic treatment and not for the younger child’s.  The mother appealed the Circuit Court order on the grounds that the judge did not award support retroactively, did not allow orthodontic expenses for the younger child, and did not calculate correctly the father’s share of the cost of braces for the older child.

 On appeal, the Virginia Court of Appeals restated the mother’s burden on appeal of proving the trial court’s factual findings were plainly wrong or without evidence to support them, citing Jennings v. Jennings, 12 Va. App. 1187, 1189, 409 S.E.2d 8, 10 (1991) http://scholar.google.com/scholar_case?case=5139151266510202168&q=jennings+v.+jennings&hl=en&as_sdt=80000000000002 and Virginia Code Section 8.01-680, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+8.01-680.   The mother had the burden of proving to the trial judge that the unreimbursed medical expenses were reasonable and necessary. The Virginia Court of Appeals also recognized that the trial court had the discretion as to whether to make a modification of child support effective while a petition is pending. The Virginia Court of Appeals ruled that in Barrett that the trial court did not err in construing the orthodontist’s recommendation. http://www.courts.state.va.us/opinions/opncavwp/2506091.pdf . The orthodontist noted that because of the older child’s age, treatment should begin “relatively soon.” While treatment for the younger child was “recommended,” there was no indication that it was “necessary.” Relying on the orthodontist report, the trial court made a factual determination that the younger child’s treatment was not necessary. The Virginia Court of Appeals held that the trial court did not err as a matter of law in making such a determination.  The court did rule that the father’s share of the cost of orthodontic treatment had been miscalculated by the Circuit Court judge, and therefore reversed and remanded the case for a new calculation.

 You should consult with your Virginia divorce lawyer to discuss whether orthodontic expenses or braces for your child qualify as necessary and reasonable medical expenses payable as child support.

Is husband entitled to claim a share in the former marital residence in Virginia after his interest in the property was sold to the wife by the husband’s chapter 7 bankruptcy trustee?

 Yes, in the Virginia Circuit Court case of Peck v. Brenner, Civil Docket No.: CL08-4637, http://valawyersweekly.com/wp-files/pdf/010-8-064.pdf, husband and wife owned the marital residence together for twenty-four years at the time of their separation, and for almost twenty-five years at the time husband filed his chapter 7 bankruptcy case.  During their lengthy marriage, both husband and wife had contributed equally to the well being of their family and to the care and maintenance of the marital home.

 In Peck, husband alone filed a voluntary Chapter 7 petition in bankruptcy in the United States Bankruptcy Court for the Eastern District of Virginia. Husband listed all of his personal and marital debts, as required by law, and listed all his assets, including the parties’ marital home.  Instead of holding title to the property as tenants by the entirety with the common-law right of survivorship, the parties held title as tenants in common.  In administering husband’s assets under Section 363 of the Bankruptcy Code, http://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00000363—-000-.html , the chapter 7 trustee sold the husband’s interest in the former marital residence to the wife for $29,250, which wife paid to the trustee from her separate assets.  This allowed the wife and children to continue to reside in the former marital residence.  The wife continued to make the mortgage payments due on the property following the sale.

 In spite of the trustee’s administration of husband’s interest in the property, the husband subsequently claimed in the equitable distribution portion of the parties’ Virginia divorce, that he was entitled to half of the net equity of the parties’ former marital residence, at such time as it is sold, as a result of the parties’ twenty-four year marriage.

 The wife’s argument that the husband no longer had any interest in the former marital residence was based on the case of Colucci v. Colucci, 596  Atl.2^nd 1099 (N.J. Superior Court1991), http://scholar.google.com/scholar_case?case=7285404557639170046&q=Colucci+v.+Colucci&hl=en&as_sdt=80000000000002&as_vis=1 where the New Jersey Superior Court held that former husband could not compel a sale of the former marital residence and share in the proceeds of sale, where the husband’s chapter 7 trustee had sold the husband’s interest in the marital residence to the wife. In Colucci, however, the former husband had also subsequently executed a separate deed to former wife conveying all of his remaining “right, title and interest” in the marital residence to wife. In Peck, there was no such similar separate deed conveying husband’s property interest to wife.

 The Virginia divorce judge in Peck held that the husband was estopped from claiming any interest in that portion of the former marital residence that was acquired by wife from the Trustee.  Hence, husband was not entitled to 50% of all of the equity in the former marital residence.  However, the divorce court judge further ruled that the other 50% of the marital residence derived from wife’s original tenancy in common interest, was marital property subject to equitable distribution upon divorce. Since there was no separate deed from husband conveying to wife his remaining right, title and interest in the property as in

the Colucci case, the Virginia Circuit Court jduge held that husband did have an interest in wife’s original one half tenancy in common interest in the property, which was not a part of husband’s bankruptcy estate.  Thus, the marital residence had become hybrid property under Virginia Code Section 20-107.3, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-107.3 , part wife’s separate property – husband’s tenants in common share purchased by wife from the chapter 7 bankruptcy trustee with wife’s separate funds, and part marital property – the wife’s tenants in common share.  The divorce court judge awarded to the husband the sum of forty-two thousand seven hundred twenty-five dollars ($42,725), representing twenty-five percent of the net equity, or one-half of wife’s tenants in common interest, upon the sale of the property.

 You should consult with your Virginia bankruptcy and divorce lawyer to discuss how you and your spouse’s bankruptcy transactions might have affected your property interests upon divorce.

Can husband’s transfers of real estate to wife under a separation agreement be set aside in a later bankruptcy?

 Yes, in the case of  In re Paschall, 408 B.R. 79 (E.D. Va., 2009), in the Eastern District of Virginia, Richmond Division, http://scholar.google.com/scholar_case?case=8879531184877332143&q=%22In+re+Paschall%22&hl=en&as_sdt=80000000000002, the U.S. District Court judge affirmed the bankruptcy court’s  order holding that the Chapter 7 bankruptcy trustee established that the buyout of prior marital agreement with transfer of real estate was a preference, and former spouse was an insider because estranged parties were still married when the transfer occurred. 11 U.S.C.A. § 547(b) http://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00000547—-000-.html

After husband and wife were married, wife sold her separate real property and used the proceeds to purchase land in Virginia which was titled in the names of husband and wife, as tenants by the entirety with the common-law right of survivorship.  Husband and wife took out a mortgage loan against the property and deposited the proceeds into a joint checking account, from which husband paid his premarital unsecured debts and marital unsecured debts.  Later, the husband and wife bought residential real property in Midlothian, Virginia (a suburb of Richmond in Chesterfield County) from husband’s parents, using his separate property as a down payment and a joint mortgage loan.  They took title again as tenants by the entirety with the common-law right of survivorship.

The next year, the parties entered into a marital agreement, valid under Virginia Code Section 20-155,  http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-155  and just as enforceable as a separation agreement or property settlement agreement, wherein husband agreed wife would become the sole owner of both real properties in return for a cash payment to husband.  The husband agreed to transfer the properties by quit claim deeds to wife as trustee of a living trust in her name.  After the husband become dissatisfied with the agreement, the parties negotiated a buyout agreement under which the properties would be transferred earlier in return for cash.  Wife paid husband the cash, but husband did not transfer the title to the real property by deed until more than a year later.  Although husband was not insolvent when he executed the marital agreement and the buyout agreement, he was insolvent when he transferred title to the two real properties.  Wife had filed for a divorce from husband in a Virginia Circuit Court before the transfers and obtained a final decree of divorce after the transfers.  The final decree of divorce was filed in the county clerk’s law and chancery order books nine months later, on the same day the ex-husband filed his chapter 7 bankruptcy case.  Neither the marital agreement nor the decree were ever filed in land records.

The chapter 7 trustee filed an adversary proceeding, a lawsuit within the bankruptcy permitted by 28 U.S.C. 157, http://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00000157—-000-.html  , and governed by Bankruptcy Rule 7001, http://www.law.cornell.edu/rules/frbp/rules.htm#Rule7001  , to avoid husband’s transfers of real estate to the wife as preferences or fraudulent or voluntary conveyances under the Bankruptcy Code or Virginia law.  The bankruptcy court judge ruled against the trustee on the fraudulent or voluntary conveyance grounds, but ruled in favor of the trustee to avoid the transfers as preferences.  The wife was a creditor and an insider, and the transfers were made to satisfy an antecedent debt owed by the debtor at the time the debtor was insolvent.  Since the transfers were avoided, the property reverted the debtor and his ex-wife, who were now tenants in common by virtue of the entry of the decree of divorce, which severed the tenancy by the entirety under Virginia Code Section 20-111, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-111 .  Thus, the chapter 7 trustee could administer the husband debtor’s interest in the real properties.  The wife and her trust appealed the bankruptcy court order, which was considered by the U.S. District Court as an appropriate interlocutory, or nonfinal, order for appeal under 28 U.S.C. 1292(b),  http://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001292—-000-.html.

In Paschall, the District Court held that the former wife qualified as a creditor having a “claim” since she could have obtained an equitable remedy if debtor did not fulfill his contractual obligations under the marital agreement to transfer his interest in properties. 11 U.S.C.A. § 101(5). http://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00000101—-000-.html The judge also ruled that former wife had to be regarded as an “insider,” because a final decree of divorce was entered three weeks following the quitclaim deeds to transfer the property; 11. U.S.C.A. § 101(31) http://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00000101—-000-.html See also Miller v. Schuman, 81 B.R. 583, 585 (9th Cir. BAP 1987)

http://scholar.google.com/scholar_case?case=18302523943291676915&q=+Miller+v.+Schuman,+81+B.R.+583,+585+&hl=en&as_sdt=80000000000002; and the challenged transfers enabled former wife to receive more than she would have received in a hypothetical Chapter 7 liquidation [where former wife was an unsecured, nonpriority creditor, and unsecured creditors of the estate would receive less than 100% payout on their claims. 11 U.S.C.A § 547(B)(5) http://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00000547----000-.html].

The Paschall case illustrates the benefit of recording agreements concerning real property and deeds promptly in land records.  One of the foundations for the judge’s decision was the fact that the agreement between the husband and wife had not been recorded, as required under Virginia Code Section 55-96, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+55-96  , to become effective against purchasers for valuable consideration without notice, a statutory status the chapter 7 trustee enjoys under 11 U.S.C. 544(a)(3)  http://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00000544—-000-.html to set aside or avoid transfers and recover property.  The case also illustrates the risks in accepting transfers when the transferor spouse is insolvent and such a transfer may be considered an avoidable preference under 11 U.S.C. 547,  http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t09t12+3845+0++%28%29%20%20AND%20%28%2811%29%20ADJ%20USC%29%3ACITE%20AND%20%28USC%20w%2F10%20%28547%29%29%3ACITE%20%20%20%20%20%20%20%20%20  .                                                                                            

You should consult with your Virginia bankruptcy and family law lawyer to discuss how to best structure and execute your marital agreements.

Can a wife file an order to collect mortgage and house insurance payments from the husband without violating the automatic stay in a Chapter 7 bankruptcy proceeding?

Not necessarily  in the U.S. Bankruptcy Court for the district of Kansas, according to In re: Craig Michael Ullrich, Case No. 10-40329 (June 2, 2010).  The reasoning of the Ullrich case may also apply to a bankruptcy case pending in the U.S. Bankruptcy Court for the Eastern District of Virginia, Richmond Division. In Ullrich, the ex-wife obtained a court order requiring the ex-huband, a debtor in a chapter 7 bankruptcy case, to appear in state divorce court to answer allegations that he had not fulfilled his financial obligations agreed to in the parties’ divorce.  In response, the debtor husband filed a Motion for an Order to Show Cause in his bankruptcy case, alleging that his ex-wife had violated the automatic stay imposed by § 362 of the Bankruptcy Code. http://www.law.cornell.edu/uscode/usc_sec_11_00000362—-000-.html

The bankruptcy judge in Ullrich requested a copy of the underlying divorce documents to determine whether the issuance of a rule to show cause was appropriate.  Husband and wife had prepared their own separation agreement or property settlement agreement, without benefit of counsel.   A review of the documents showed that the debtor husband had agreed to pay $1700 a month for mortgage and house payments. The bankruptcy court judge tried to determine if the payments were intended to be construed as child support or a property settlement agreement. The U.S. Bankruptcy Court judge restated the rule that: “Section 362(b)(2)(B) specifically states that the filing of the bankruptcy petition does not operate as a stay “of the collection of a domestic support obligation from property that is not property of the estate.” The definition of a domestic support obligation includes anything that is “in the nature of alimony, maintenance, or support . . . without regard to whether such debt is expressly so designated.” 11 U.S.C. § 101(14A). http://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00000101—-000-.html 

In this case, it was difficult for the court to ascertain if the $1700 a month for mortgage and house payments were child support. There were some indications that the payments were intended to be child support and not a property settlement agreement: 1) there was no marital property to be divided, no marital debts or spousal support; 2) The language in the Separation Agreement suggested that Debtor would support his children by paying the mortgage.  However, there were also indications that the payments could be part of a property settlement agreement: 1) sworn Affidavit signed by Debtor stating that he has no child support obligation, but only a property settlement obligation arising out of divorce. 2) Debtor has custody of the parties’ third child.  The debtor husband had responded to the controversy by filing a motion to convert his chapter 7 case to a chapter 13 case, in order to discharge non-domestic support obligation family law debts under 11 U.S.C. 523(a)(15). http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t09t12+3806+0++%28%29%20%20AND%20%28%2811%29%20ADJ%20USC%29%3ACITE%20AND%20%28USC%20w%2F10%20%28523%29%29%3ACITE%20%20%20%20%20%20%20%20%20

 The Court stressed that if ex-wife were indeed attempting to enforce a property settlement debt rather than a domestic support obligation, she will have violated “the automatic stay imposed by the Bankruptcy Code and could be liable for damages, including actual damages, attorney fees, and potentially punitive damages.” However, the Court denied the debtor’s Motion for an Order to Show cause, because the bankruptcy court judge could not definitively determine whether the husband’s obligation were “in the nature of” child support. In part, the Court had difficulty deciding the nature of the obligation since the ex-wife did not appear at the scheduled hearing.

 Although the Court denied the debtor’s Motion for an Order to Show cause, the court used its equitable powers under Section 105 of the Bankruptcy Code, http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t09t12+3739+0++%28%29%20%20AND%20%28%2811%29%20ADJ%20USC%29%3ACITE%20AND%20%28USC%20w%2F10%20%28105%29%29%3ACITE%20%20%20%20%20%20%20%20%20 , to stay the ex-wife’s motion and any similar proceeding, pending further order from the Court.

 The Ullrich case illustrates the inherent risks in structuring particular obligations as support or property settlement obligations.   Although the bankruptcy court judge will look beyond the labeling of the obligation to determine if it is truly in the nature of support, structuring an obligation as support in a separation agreement, without the benefit of counsel, may have unintended consequences in a later bankruptcy case.

 You should consult with your Virginia bankruptcy and family attorney concerning the applicability of the automatic stay in a bankruptcy proceeding to any family law obligations.

Should husband’s early retirement lead to a decrease in spousal support to wife in Virginia?

Not in the case of Johnson v. Johnson  http://www.courts.state.va.us/opinions/opncavwp/1887092.pdf  where the Virginia Court of Appeals ruled that the Chesterfield County Circuit Court divorce judge did not err by refusing to terminate husband’s spousal support obligation even though he had retired and wife was receiving a portion of his retirement as income.

When the parties were divorced in 1994, the wife was awarded $600 a month in spousal support from her husband.  Ten years later, the husband tried to terminate spousal support in accordance with Virginia Code Section 20-109(A), http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-109  , on the grounds that wife was co-habiting with another man in a relationship analogous to a marriage for one year or more.  The Chesterfield Circuit Court denied husband’s motion to abate spousal support.  See,  Johnson v. Johnson, No. 1736-03-2 (Va. Ct. App. June 8, 2004).  http://www.courts.state.va.us/opinions/opncavwp/1736032.pdf

Five years later, the husband moved the Chesterfield County Circuit Court to modify the spousal support because wife was living with another man, the husband had retired at age 60, and wife was receiving income from her share of the marital share of his retirement awarded in the divorce.  The trial judge found that husband had met the threshold requirement of proving a change in circumstances, but denied the husband’s motion based on wife’s need for support and husband’s ability to provide support.  The wife testified that she had “large medical bills” and that her car needed “expensive repairs.” She was not employed at the time of the hearing, but had received workers’ compensation benefits.  Husband owned a house and a car, and was able to pay spousal support.

On appeal, the Virginia Court of Appeals first restated the rule that “a 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.” citing Schoenwetter v. Schoenwetter, 8 Va. App. 601, 383 S.E.2d 28 (1989).  http://scholar.google.com/scholar_case?case=4590871575768855491&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Although there was a material change of circumstances, the Virginia Court of Appeals affirmed the trial court ruling to deny termination of spousal support since husband had been employed with the railroad and was able to meet his expenses, including his spousal support obligation. Additionally, there was sufficient evidence to prove that wife continued to have a need for spousal support.  The husband had failed to preserve his right to argue three issues on appeal because he did not present a complete record of the proceeding below with his arguments and objections, as required by Rule 5A:18,  http://www.courts.state.va.us/courts/scv/rulesofcourt.pdf .   The Johnson case illustrates that “not every material change of circumstance justifies a modification of spousal support”, citing Blackburn v. Michael, 30 Va. App. 95, 515 S.E.2d 780 (1999), , http://www.courts.state.va.us/opinions/opncavwp/0259983.pdf  at the Virginia Circuit Court level, and the risk of relying on a statement of facts instead of a transcript for an appeal to the Virginia Court of Appeals.

You should consult with your Virginia family law lawyer to discuss whether a material change in circumstances justifies a modification of spousal support.

 Can a parent lose primary custody of a child to ex-spouse by not cooperating with visitation and court ordered evaluations even though ex-spouse had threatened to commit suicide in the past?                      

In an unpublished opinion, the Virginia Court of Appeals affirmed a trial court’s decision to change primary physical custody of the parties’ child after mother failed to communicate with father, tended to deny visitation, and did not properly communicate with a court ordered psychologist.  Belcher v. Belcher, No. 2310-09-1, (April 13, 2010) http://www.courts.state.va.us/opinions/opncavwp/2310091.pdf .

In Belcher, the ex-husband father and ex-wife mother had joint legal custody, with mother having primary physical custody of the parties’ child. The custody arrangement was established in part due to threats made by the father to commit suicide when the parties separated. The father received treatment and progressed from supervised to unsupervised visitation. Additionally, the father cooperated with a custody and psychological evaluation, while mother did not cooperate and tended to deny visitation.

A psychologist who performed a custody evaluation of the parents testified in the Virginia Circuit Court that mother had a tendency to deny visits to ex-husband father and failed to properly schedule court-ordered home visits.  After these events, the psychologist prepared an updated custody report in which he recommended joint legal custody, with primary physical custody to father.  The psychologist testified that he did not believe that the father’s prior psychological problems remained an issue. A guardian ad litem (GAL) for the child also testified in trial court that mother’s non-cooperation with father was not in the best interest of the child. After hearing all the facts, the Virginia Circuit Court judge held that the parties would have joint legal custody with primary physical custody to father.

Mother argued in the Virginia Court of Appeals that the trial court ruled that father should be the custodial parent in order to punish mother for the miscommunication between her and the psychologist in scheduling home visits.  However, the Appellate Court held that there was no evidence the custody ruling was punitive to the mother. The trial court noted that the mother’s testimony and the evaluating psychologist’s testimony conflicted as to whether they had scheduled an appointment for him to conduct a home study, but his testimony was not impeached when he testified that he gave notice. Despite this mention of the miscommunication between mother and the psychologist, the trial court stated it took all the factors into account [including factors enumerated in Code  § 20-124.3 https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-124.3], with no one factor more important than the other when it determined the child’s best interests would be served if father had physical custody.

The Virginia Court of Appeals held that the trial court had not abused its discretion in changing primary physical custody to father and that the trial court considered all of the Code § 20-124.3 factors, with “no one factor necessarily more important than the other.” http://scholar.google.com/scholar_case?case=16363639353900919376&hl=en&as_sdt=2&as_vis=1&oi=scholarr .

You should consult with your Virginia family law lawyer to discuss whether you can modify an existing custody order.