Driscoll v. Hunter
59 Va. App. 22
| Va. Ct. App. | 2011Background
- Husband and wife separated in 1998; pendente lite spousal support of $2,100 per month was agreed orally and memorialized in July 31, 1998 agreement.
- February 29, 2000 property settlement incorporated the pendente lite agreement; wife reserved right to spousal support; final divorce decree incorporated the settlement and fixed $2,100 monthly spousal support.
- Husband retired in January 2002 due to medical problems, reducing income; substantial assets existed, including an IRA (~$1.376M), other investments (~$1.164M), cash (~$230K), and home (~$800K) with no mortgage; wife had limited recent employment history.
- Wife briefly worked in 2005-2006 and voluntarily quit; she did not seek other employment.
- Trial court questioned the standard for modification; initially considered Code § 20-107.1 factors for initial support but ultimately held a material change in circumstances showing ability to pay was needed.
- Court held, construing the three instruments together, that the parties did not intend to dispense with the material-change requirement for modifying spousal support.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the agreements obviate the need for a material change in circumstances? | Driscoll argues the July 1998 agreement, incorporated by reference, removed the need to show a material change. | Hunter contends the contracts do not abolish the material-change requirement; modification requires showing a change in circumstances. | No; modification requires material change in circumstances. |
| Did the trial court properly interpret the contract to require a material change rather than applying all 13 factors of 20-107.1? | Driscoll asserts all 13 factors should apply as part of an initial adjudication of support. | Hunter maintains 13 factors apply only after a material change is shown; here a material change was not established. | Trial court did not err; material-change showing was required and not proven. |
| Did retirement constitute a material change in circumstances affecting ability to pay? | Driscoll contends retirement reduced his ability to pay spousal support. | Hunter argues retirement did not affect his ability to pay given substantial non-wage assets and other income. | Retirement did not meaningfully affect ability to pay; court did not abuse discretion in denying relief. |
| Did consideration of potential buy-sell payments from the medical practice affect the outcome? | Driscoll argues such future payments were uncertain and should not influence the decision. | Hunter asserts any potential payment could be considered in income/ability to pay. | Any error was harmless; the outcome would be the same even without considering buy-sell payments. |
| Should wife's voluntary unemployment have affected the spousal support obligation? | N/A | Court did not need to separately address wife's unemployment because modification analysis focused on material change and ability to pay. | Not required to independently factor due to procedural posture and focus on material-change standard. |
Key Cases Cited
- Doering v. Doering, 54 Va.App. 162, 676 S.E.2d 353 (Va. App. 2009) (contracts control modification when an agreement exists)
- White v. White, 257 Va. 139, 509 S.E.2d 323 (Va. 1999) (intent of parties expressed in agreement controls; contracts treated as such)
- Zipf v. Zipf, 8 Va.App. 387, 382 S.E.2d 263 (Va. App. 1989) (spouse seeking support not required to deplete own estate to qualify)
- Gamble v. Gamble, 14 Va.App. 558, 421 S.E.2d 635 (Va. App. 1992) (avoid double-dip by considering property distribution and spousal support separately)
- Reece v. Reece, 22 Va.App. 368, 470 S.E.2d 148 (Va. App. 1996) (trial court has broad discretion in modifying support upon material change)
- Moreno v. Moreno, 24 Va.App. 190, 480 S.E.2d 792 (Va. App. 1997) (modification requires showing impact on needs or ability to pay)