860 S.E.2d 397
Va. Ct. App.2021Background
- Nielsen married in 1987; the parties executed a 2016 separation agreement and the 2017 divorce decree awarded wife $10,000/month spousal support through Nov. 1, 2027.
- Husband was AOL VP of Corporate Services in 2016 (total 2016 earnings ≈ $712,000); Verizon acquired AOL and by 2018 husband’s role, duties, and staff were substantially reduced.
- Verizon offered a voluntary separation package; husband accepted and his separation payment ($825,000) was paid in 2019; husband’s employment ended Dec. 2018.
- Husband searched for work, did consulting, and accepted a full‑time position with CPG in May 2020 (salary $250,000, potential $50,000 bonus).
- Husband moved to modify spousal support (filed Dec. 2019); at the Sept. 30, 2020 hearing the trial court found a material change in circumstances, concluded husband’s departure from Verizon was not voluntary for earning‑capacity purposes, and reduced support from $10,000 to $6,000/month.
- On appeal, wife argued (1) no material change because husband voluntarily left employment and had assets to pay; (2) departure was voluntary; (3) the reduction was an abuse of discretion. The Court of Appeals affirmed.
Issues
| Issue | Wife's Argument | Husband's Argument | Held |
|---|---|---|---|
| Material change in circumstances | Husband’s income drop resulted from his voluntary choice and his assets could cover support, so no material change should be found | Husband’s actual income dropped substantially since the award, justifying review | Court: Substantial reduction in husband’s income since the award was a material change allowing modification |
| Voluntary underemployment (departure from Verizon) | Husband accepted a voluntary separation package, so departure is voluntary and should limit relief | Employer realignment and diminished duties impelled his departure; it was not truly voluntary for earning‑capacity analysis | Court: Trial court’s factual finding that departure was not voluntary was supported by credible evidence and not plainly wrong |
| Modification amount / abuse of discretion | Wife: Husband had assets and thus reduction was improper | Husband: Trial court balanced incomes, assets, needs and statutory factors and reduced support accordingly | Court: Trial court considered statutory factors and did not abuse discretion in reducing support from $10,000 to $6,000/month |
Key Cases Cited
- Antonelli v. Antonelli, 242 Va. 152 (Va. 1991) (Supreme Court affirmed that a voluntary job change does not automatically bar modification; factfinder has discretion to weigh motives and risks)
- Broadhead v. Broadhead, 51 Va. App. 170 (Va. Ct. App. 2008) (departure under a separation agreement can be deemed not voluntary when impelled by employer actions and realignment)
- Dailey v. Dailey, 59 Va. App. 734 (Va. Ct. App. 2012) (significant changes in income often constitute a material change in circumstances)
- Barrs v. Barrs, 45 Va. App. 500 (Va. Ct. App. 2005) (material change must occur after the most recent judicial review and not have been reasonably contemplated)
- Brandau v. Brandau, 52 Va. App. 632 (Va. Ct. App. 2008) (voluntary underemployment is one factor among many for trial court to consider in spousal support determination)