Husband said his ‘firing’ was ‘mutual’

A husband could not terminate spousal support payments by refashioning his firing to fit under the parties’ property settlement agreement, the Virginia Court of Appeals has ruled.

The PSA signed by William and Elizabeth Strack in 2010 called for the husband to pay $4,250 in monthly spousal support. At the time, Elizabeth was unemployed and William was the president of Henderson Inc., with an annual income of $120,000. The husband had started as a pipefitter with Henderson, and the company chairman Peter Henderson testified that the husband “just did a good job and worked his way up.”

The parties’ agreement provided that if the husband’s employment with Henderson was “terminated through no fault of his own,” he could seek modification or termination of the spousal support award. The couple’s agreement was ratified, affirmed and incorporated by reference, but not merged into the final divorce decree entered on Jan. 3, 2011.

At a meeting on Aug. 31, 2012, Henderson terminated the husband, despite the company’s growing profitability and expansion under the husband’s presidency, the Court of Appeals said in its Dec. 17 unpublished opinion in Strack v. Strack (VLW 013-7-354(UP)).

The husband had the burden of proving he was not at fault in the firing. Conflicting evidence made it difficult to characterize the husband’s separation from the company.

On the one hand, the husband’s separation notice said it was a “Layoff,” and indicated his job performance was “satisfactory” in all categories, including quality, productivity, reliability, attendance, independence, creativity, adherence to policy, interpersonal relationships, judgment and supervisory skills. On the other, the notice stated the company was “not comfortable with the direction that the company was headed.”

Henderson testified about his growing discomfort with Strack’s “leadership style,” calling it one of “intimidation,” instead of “motivation.”

Henderson said he had initiated discussions with Strack about 18 months earlier about his leadership style, but there was no record of a direct threat of termination. At the termination meeting, the husband asked that the termination be “mutual” as he was “concerned about his image in the community.” The husband said he wanted to build a Crossfit fitness franchise in Gloucester.

The company offered the husband a severance package to include 16 weeks of pay, a company vehicle, health benefits for eight months and stock redemption. The husband rejected the severance offer because it included a discount of his equity in the company. He opened his Crossfit facility in 2013 and was employed there on an hourly basis at $20 per hour, at the time of the hearing.

The husband moved to reduce or terminate support under the parties’ agreement.

Circuit Judge Designate Walter J. Ford, sitting in the Circuit Court of Williamsburg and James City County, said he could not “get around the fact that [the husband] was going to be fired. And you can’t say he was doing a great job, but we’re going to fire you anyway. That doesn’t make sense to me.”

Ford rejected the alternative scenario offered by the husband – that he was leaving on his own accord for a new business venture. Even if he was, the husband had made good money at the old job and the court could impute income, the trial judge said.

Ford granted the wife’s motion to strike and the Court of Appeals affirmed. Testimony from the husband and from Henderson supported the trial court’s finding that Strack was fired “for cause,” wrote Judge Glen A. Huff.

The trial court based its ruling on Henderson’s testimony regarding how the husband’s intimidating style was “snowballing” and “getting worse,” and required near-daily counseling over the 18-month period that culminated in his discharge.

According to the trial court, the husband was either fired for cause due to his intimidating leadership style or left on his own accord to pursue another business venture. Under the terms of the divorce decree and applicable law, neither of these departures would qualify for a request to reduce support.