George M. Gordon v. Elizabeth H. Gordon
2038162
Va. Ct. App.Jul 11, 2017Background
- Married ~27 years; one child; parties separated and litigated equitable distribution and spousal support. Marital assets valued at about $4.5 million and divided evenly. Circuit court awarded wife $12,000/month spousal support and $35,000 in attorney’s fees/costs below.
- Husband is a high‑earning financial advisor (recent annual employment income ~ $623,346; range prior six years ~$366k–$898k). Court found he contributed the vast majority of monetary support.
- Wife was a long‑term stay‑at‑home parent (age 57 at hearing), with limited recent work history (seasonal/part‑time coaching; occasional project work; learning to teach dance). Vocational expert estimated earning capacity ~$24k–$29k/year.
- Husband’s expert estimated the wife could withdraw ~$65,000/year from a $1.5M share of assets but would eventually deplete principal; wife’s CPA testified about tax impact on support. The court declined to treat equitable distribution as income and viewed forced depletion as inequitable.
- Circuit court found adultery by husband was "significant" but not the primary cause of the divorce; court considered statutory Code § 20‑107.1(E) factors and found record support for awarding $12,000/month. Award characterized as modifiable.
Issues
| Issue | Husband's Argument | Wife's Argument | Held |
|---|---|---|---|
| Whether court erred by not treating equitable distribution as income when setting support | Court should have credited expert projection that wife could withdraw income from assets (i.e., treat asset income in support calculus) | Court properly considered asset income but reasonably rejected approach that required wife to liquidate principal | Affirmed — court considered equitable distribution and declined to treat asset depletion as current income; discretionary weighting proper |
| Whether court should have imputed income to wife | Impute income based on vocational/expert testimony and wife’s plans to work | No imputation appropriate given long absence from workforce and weak prospects | Affirmed — refusal to impute income not plainly wrong and within discretion |
| Whether court improperly found husband "admitted" he could pay any amount | Challenges a statement implying husband admitted ability to pay any award | Statement was contextual observation; not a factual admission | Affirmed — isolated wording taken out of context; no reversible error |
| Whether award was excessive relative to wife’s claimed expenses and reliance on CPA testimony | Award exceeds wife's documented needs; court relied improperly on CPA figures tied to higher support levels | Court may exceed monthly expense figures to account for statutory factors and lifestyle; CPA testimony was in record | Affirmed — award within discretion; objection to CPA testimony not preserved for appellate review (Rule 5A:18) |
Key Cases Cited
- Fox v. Fox, 61 Va. App. 185 (discusses abuse of discretion review for spousal support)
- Robinson v. Robinson, 54 Va. App. 87 (court must consider equities and standard of living for support)
- Gamble v. Gamble, 14 Va. App. 558 (distinguishes equitable distribution from spousal support; court must consider asset assignment when fixing support)
- Woolley v. Woolley, 3 Va. App. 337 (trial court need not quantify weight given to each statutory factor)
- Brandau v. Brandau, 52 Va. App. 632 (imputation of income is discretionary; support awards may be modifiable)
- Barker v. Barker, 27 Va. App. 519 (improper to treat assets divided in equitable distribution as income)
- McKee v. McKee, 52 Va. App. 482 (party seeking imputation bears burden to prove forgone employment and projectable income)
- deCamp v. deCamp, 64 Va. App. 137 (refusal to impute income reviewed for being plainly wrong)
- Srinivasan v. Srinivasan, 10 Va. App. 728 (court may impute income under appropriate circumstances)