722 S.E.2d 321
Va. Ct. App.2012Background
- Divorce finalized in 2009; final decree incorporated a property settlement agreement.
- The agreement provided spousal support of $1,000/month, modifiable upon a material change in circumstances, and 50% of the marital share of the husband's gross retirement pay when received.
- At divorce, the husband worked for Fairfax County Police Department; retirement plan had no survivor benefit for an ex-wife if divorce occurred before retirement; husband had no plans to retire.
- In 2010 the husband retired and became a deputy sheriff; wife began receiving both spousal support and her share of the retirement; total about $3,900/month.
- Husband moved to terminate or reduce spousal support, arguing retirement and wife’s pension share constituted a material change in circumstances; wife agreed a change occurred but resisted modification, claiming the agreement contemplated the change.
- Trial court found a material change but held that the spousal support could not be modified because the parties had bargained for the outcome; on appeal, the husband challenges that ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does retirement preclude modification of spousal support under the agreement? | Dailey argues the agreement allows modification upon material change and does not preclude retirement effects. | Dailey argues the contingency of retirement was contemplated and thus modification should not occur. | Agreement did not preclude modification; modification available upon material change. |
| Was husband’s retirement a reasonably foreseeable event that defeats modification? | Dailey contends retirement was not reasonably foreseeable at the time of the agreement. | Dailey contends retirement was foreseeable and should be accounted for in initial award. | Retirement was not reasonably foreseeable; not barred as a material change. |
| Should the case be remanded to determine whether a modification is warranted given the changed circumstances? | Dailey argues the court erred by not considering modification; remand is appropriate to resolve whether modification is warranted. | Dailey does not contest the existence of a material change; the issue is whether modification is warranted. | Case remanded for determination of whether the changed circumstances warrant modification. |
Key Cases Cited
- Goldin v. Goldin, 34 Va.App. 95 (Va. App. 2000) (contracts governing support interpreted like ordinary contracts)
- Srinivasan v. Srinivasan, 10 Va.App. 728 (Va. App. 1990) (reasonableness of foreseeability in support awards)
- Furr v. Furr, 13 Va.App. 479 (Va. App. 1992) (foreseeability; what is reasonably foreseeable depends on circumstances)
- Barrs v. Barrs, 45 Va.App. 500 (Va. App. 2005) (passive income foreseeability in support modification)
- Robertson v. Robertson, 215 Va. 425 (Va. 1975) (uncertainty of future income does not support support basis)
- Rogers v. Rogers, 51 Va.App. 261 (Va. App. 2008) (do not base initial support on potential future favorable circumstances)
- McGuire v. McGuire, 10 Va.App. 248 (Va. App. 1990) (retirement-related income changes can constitute material changes)
- Doering v. Doering, 54 Va.App. 162 (Va. App. 2009) (modification based on material change in circumstances; retirement context)
- Stubblebine v. Stubblebine, 22 Va.App. 703 (Va. App. 1996) (consider current circumstances, including retirement plans, in setting/adjusting support)
- Moreno v. Moreno, 24 Va.App. 190 (Va. App. 1997) (circumstances for modification: financial changes; not every change foreseen)
- Southerland v. Estate of Southerland, 249 Va. 584 (Va. 1995) (contextual rules for contract-based support decisions)
- Blank v. Blank, 10 Va.App. 1 (Va. App. 1990) (aim of spousal support to provide maintenance reasonably; balancing needs and ability to pay)
- Wilson v. Holyfield, 227 Va. 184 (Va. 1984) (contractual interpretation guidance for support provisions)