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Domestic Relations – Spousal Support – Part-Time Work – ‘Elective’ Breast Surgery

A husband’s complaint that wife should be working full-time after her “elective” bilateral mastectomy is rebuffed by a Fairfax Circuit Court’s opinion that wife’s surgery was “‘elective’ only in the sense that she ‘elected’ to stay alive,” and the court upholds husband’s $3,000 monthly spousal support payments.

The court is issuing this letter opinion for the specific purpose of addressing one argument made by plaintiff husband’s counsel. Specifically, plaintiff argues that the court should not have made its award of spousal support in part because the bilateral mastectomy wife recently underwent in order to prevent a recurrence of her breast cancer was “elective” surgery. On this, and other bases, husband argues that wife should be able to work full-time and therefore is not entitled to the spousal support awarded by the court.The court finds that wife’s decision to undergo a bilateral mastectomy was “elective” only in the sense that she “elected” to stay alive.

It is obvious to the court from the testimony presented at trial that wife chose this course of treatment because she believed it was absolutely essential and necessary to her survival. In that sense, it can hardly be characterized as “elective” and it certainly cannot be used to suggest that wife’s current inability to work is a product of her own voluntary decisions.

Whether wife at some point in the future will be able to work full-time is an open question. What is not an open question, in this court’s view, is whether she can work full-time now. She cannot. Indeed, as the court stated at trial, “with what she’s been through and what she’s going through right now, my view is it is remarkable that she can even hold a part-time job, but that’s my assessment of what the evidence is.”

Kelley v. Kelley (Bellows, J.) No. CL 2008-14478, Dec. 18, 2009; Fairfax Cir.Ct.; Alfred F. Arquilla, David H. Fletcher for the parties. VLW 010-8-019, 5 pp.

VLW 010-8-019

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