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Local ‘formula’ support award reversed

A permanent spousal support award cannot be explicitly pegged to the local formula used for temporary support, the Virginia Court of Appeals said today.

An appeals court panel reversed a wife’s monthly support award of $4,159 because the record did not show the Henrico County Circuit Court actually fixed the amount of support after weighing the guidelines in Virginia Code § 20-107.1(E).

The trial court said the physician husband had $230,000 in annual income, and it imputed $25,000 in income to the wife, who suffered from fibromyalgia and other ailments. Henrico County Circuit Judge Gary A. Hicks then told the parties’ lawyers to “plug those” numbers into the locally developed guidelines for pendente lite support. Hicks’ final order adopted the amount that popped up from the calculation on the pendente lite guidelines worksheet.

“The message to courts is they can’t just adopt a mathematical formula that only includes the husband’s income and the wife’s income,” said Richmond lawyer Richard L. Locke, who represented Christine Coleman in Coleman v. Coleman (VLW 011-7-361(UP)).

Temporary support guidelines are widely used in Virginia divorce courts to quickly set an amount to keep a payee spouse afloat during divorce proceedings. The guidelines at issue in Coleman are the ones developed jointly by judges and lawyers in the metropolitan Richmond area and used in trial courts in Richmond and in Henrico and Chesterfield Counties, according to Locke.

Richmond-area guidelines keep it simple, with a calculation based on the parties’ income, Locke said. In central Virginia, Hanover and New Kent County each have their own guidelines. For courts in Northern Virginia, “it’s a little more complicated,” Locke said, as they usually “have a component of debt” when setting temporary support.

The appellate court’s unpublished Nov. 22 opinion, written by Judge Stephen R. McCullough, shows “you can’t just strictly apply a formula to calculate support,” Locke said.

But Locke suspects courts sometimes fall back on the pendente lite formula without explicitly saying so, and that use will be harder to monitor.

Richmond lawyer W. Reilly Marchant, who represented husband Peter Richard Coleman, could not be reached for comment.
By Deborah Elkins

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