88 Va. Cir. 403
Henrico Cir. Ct.2014Background
- Parties divorced in 2005; marital property division left each with roughly equal liquid assets (~$860,000 each initially). Spousal support was contested and set at $4,000/month indefinitely to husband (Childress).
- At the time of the 2014 modification hearing, both parties were unemployed; wife (Ms. Childress) long-term out of the workforce; husband’s Markel employment ended Jan. 2013 and severance ended Jan. 2014.
- Current assets: wife ~ $775,000; husband > $2,000,000.
- Husband filed to terminate or reduce spousal support under Va. Code § 20-109(A), asserting involuntary job loss and reduced ability to pay.
- Wife conceded a material change but argued modification was inappropriate because husband could obtain comparable employment and could pay from non-wage assets.
- Trial testimony (including two expert witnesses) was inconclusive on husband’s ability to find comparable work; court found job loss was involuntary and thus a material change in circumstances.
Issues
| Issue | Childress' Argument | Childress' Opponent's Argument | Held |
|---|---|---|---|
| Whether involuntary job loss is a material change warranting modification | Job loss is involuntary and is a material change | Wife agreed job loss is material | Court: job loss is a material change |
| Whether that material change warrants reducing/terminating support | Supports reduction/termination due to loss of employment and reduced wage income | Opposes modification: husband can obtain comparable employment or pay from assets | Court: denied reduction/termination; modification not warranted |
| Whether payor must rely solely on employment income versus other assets to satisfy support | Husband cites precedent that principal assets/retirement generally should not be invaded | Wife cites Driscoll that ability to pay may include drawing on savings/principal | Court follows Driscoll: ability to pay may include non-wage assets |
| Whether trial court must re-weigh §20-107.1 factors on modification of indefinite award | Implicitly urges that circumstances and factors should be considered but emphasizes job loss | Wife argues court must weigh §20-107.1(E) factors (financial resources, earning capacity) per Driscoll | Court applies Driscoll controllingly and weighs relevant factors (resources, earning capacity) and finds no reduction warranted |
Key Cases Cited
- Furr v. Furr, 13 Va. App. 479 (1992) (burden on movant to show material change in circumstances by preponderance)
- Reece v. Reece, 22 Va. App. 368 (1996) (change in employment can constitute a material change for modification)
- Moreno v. Moreno, 24 Va. App. 190 (1997) (modification warranted when it bears upon payor’s ability to pay or payee’s need)
- Zipf v. Zipf, 8 Va. App. 387 (1989) (disfavoring invasion of principal assets/retirement to satisfy support)
- Driscoll v. Hunter, 59 Va. App. 22 (2011) (ability to pay may include drawing from principal of investments or savings; directs weighing §20-107.1(E) factors in modification)
- Cleary v. Cleary, 63 Va. App. 364 (2014) (indefinite support awards are default and limiting duration requires court explanation)
Outcome: Motion to terminate or reduce spousal support denied; husband ordered to pay $7,000 of wife's attorney’s fees (partial fee award).