Should husband’s early retirement lead to a decrease in spousal support to wife in Virginia?
Not in the case of Johnson v. Johnson 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), 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).
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).
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 of the Supreme Court of Virginia. 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), and the risk of relying on a statement of facts at the Virginia Circuit Court level, instead of a court reporter’s 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.