No Support Reduction After Husband’s Retirement

A husband who still had roughly $3.5 million in assets after he retired from his oral surgery practice can still afford to pay his wife $2,100 in monthly spousal support, and the Court of Appeals upholds denial of husband’s motion to reduce his support obligation.

When the parties first separated in 1998, they agreed husband would pay wife $2,100 per month in spousal support, temporarily. On Feb. 29, 2009, they reached a property settlement agreement that said their earlier 1998 agreement on pendente lite spousal and child support would remain in effect “until modified by further written agreement of the parties, adopted as a Court Order, or adjudication by a Court of competent jurisdiction.” The March 14, 2009, final divorce decree “incorporated and made a part of this Final Decree of Divorce” the Feb. 29, 2009, PSA.

Health problems prompted husband to retire from his practice as an oral surgeon in January 2002. His monthly expenses were $6,400, but his monthly income dropped to $4,100. He moved for a reduction in spousal support.

The evidence also showed wife had worked for a law firm for several months in 2005 and 2006, but voluntarily quit that job because she was dissatisfied with the stress and compensation and the required commute.

The trial court held husband was required to show a material change in circumstances that affected his ability to pay spousal support. The court examined the income and assets of the parties, including a buy-sell agreement for husband’s practice and his roughly $3.5 million in assets, and held husband had not carried his burden to prove a reduction in income had significantly affected his ability to afford the current support.

Husband contends that under the parties’ PSA, incorporated into their divorce decree, he did not have to show a material change in circumstances.

Although the serial incorporation by reference of prior agreements is confusing, the gravamen of the parties’ intent was a temporary agreement for spousal support in July 1998, which did not require a material change in circumstances. The July 31, 1998 and Feb. 29, 2009, agreements, construed together, show the parties contemplated a permanent support award that would displace the temporary arrangement reached in 1998.

When the trial court entered the final divorce decree, it supplanted the temporary arrangement contemplated by the July 31, 1998, agreement and, with it, the parties’ initial desire to dispense with the need to show a material change in circumstances.

Construing all three instruments together leads us to conclude the trial court committed no error in requiring husband to show a material change in circumstances under Va. Code § 20-109.

The trial court assumed, without deciding, husband’s retirement was a material change in circumstances, but concluded this change did not affect his ability to pay. We agree with wife that husband’s ability to pay was not affected by his retirement, and therefore, the trial court committed no error in denying husband’s motion to reduce spousal support.

Even if the trial court had committed error in declining to hold that husband’s retirement constituted a material change in circumstances, that alone would not provide a basis for the trial court to alter the spousal support obligation. The fact that husband may have to draw from other sources, such as the principal of investment or savings accounts, in order to make his support payments, does not by itself require the trial court to suspend or reduce his spousal support obligation.

The trial court did not abuse its discretion in denying husband’s motion; nor did it err in declining to consider further wife’s voluntary unemployment.

Driscoll v. Hunter (McCullough) No. 0084-11-3, Oct. 25, 2011; Staunton Cir.Ct. (Trumbo) John C. Wirth for appellant; C. Lynn Lawson for appellee. VLW 011-7-320, 12 pp.