Adam H. Fox v. Jessica C. Fox
61 Va. App. 185
Va. Ct. App.2012Background
- Married Jan 10, 2000; separated Aug 17, 2009; wife filed Sep 24, 2009; trial on Mar 22, 2011 with post-trial proffers; amended final decree on Mar 27, 2012; husband appeals challenging spousal support and equitable distribution.
- Two real properties (Suffolk, VA and Florida) with negative equity and mortgage balances; court declined to divide due to lack of equity and potential future disposition by another court; properties remain tenants in common subject to foreclosure or sale.
- Trial court issued opinion letter discussing equitable distribution steps and factors under Code § 20-107.3(E); court awarded ten years of spousal support after considering assets, including real estate, but did not allocate the two parcels.
- Husband urged division of military retirement or a “hypothetical award” formula for his contingent Navy pension; court struck the proposed language and found no authority requiring such a formula; argument found waived for lack of proper appellate briefing.
- Appellant raised issues about overpayment of spousal support and need for written findings; several arguments deemed waived for failure to preserve error or comply with briefing rules; appellate fees awarded to wife on remand; case affirmed and remanded for attorney’s fees handling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Must the trial court divide jointly owned real estate with negative equity under Code § 20-107.3(C)? | Court should divide property to allocate debts | Division would be inequitable due to negative equity | Court not required to divide; discretion to not divide given negative equity and lack of value |
| Did neglecting to include real estate in the equitable distribution constitute an abuse in determining spousal support? | Failure to consider property/debt invalidates support; must consider all factors | Court properly considered factors; parcel treatment consistent with discretion | No abuse; court considered marital property factors and did not abuse discretion |
| Was the attempted division formula for contingent military retirement required or error? | Proposed formula should determine wife’s share as of separation or retirement date | Formula unsupported by authority; not required | Appellant waived argument for lack of legal authority and citation |
| Were written findings required for a defined-duration spousal support award? | Trial court failed to provide written basis for award | Written findings were provided in opinion letter and decree | No error; detailed factors discussed and supported the award |
| Was there an overpayment of spousal support or need for credits? | Trial court should credit overpayments | No preserved error; arguments waived | Waived due to failure to preserve and brief appropriately |
Key Cases Cited
- Shaughnessy v. Shaughnessy, 1 Va. App. 136 (1985) (equitable distribution considerations; not dispositive here)
- Hodges v. Hodges, 2 Va. App. 508 (1986) (no value, no monetary award when equity is zero or negative)
- Alphin v. Alphin, 15 Va. App. 395 (1992) (court not mandated to allocate certain debts; discretionary")
- Turner v. Commonwealth, 221 Va. 513 (1980) (‘may’ is permissive, not mandatory; governs discretion)
- Zipf v. Zipf, 8 Va. App. 387 (1989) (discusses discretion in property division and awards)
- Marion v. Marion, 11 Va. App. 659 (1991) (outline of three-step equitable distribution process)
- Aladdin v. Jurgelsky, 281 Va. 205 (2011) (Addison v. Jurgelsky discussed in footnotes (explicit citation style))