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Husband could stop support, then head to court

A husband does not have to pay over $400,000 in spousal support arrearage, even though he failed to get a court order after his wife allegedly agreed to give up support, a divided Court of Appeals said on Oct. 6.

The couple’s agreement provided that the wife’s $2,500 monthly support payments would terminate “upon” the wife’s cohabitation with a man for one week or more. That language meant the husband ultimately won his gamble to bypass court while halting support.

A statute that calls for enforcement of the plain meaning of a couple’s accord trumped the statute that says support payments vest when they are due and unpaid, a panel majority said as it reversed the order to pay arrearages.

Peter and Mimi Weidleins’ 1995 divorce decree incorporated their agreement verbatim. The husband said he confronted the wife in 2002 about her cohabitation with a man, and that she agreed to termination of support after six months.

According to the husband, the couple did not sign any paperwork or go to court because they did not want to incur the costs of litigation. Although the wife denied that she ever cohabited with her boyfriend for more than a week at a time, the couple’s two sons testified that she had in fact cohabited with the man for over a week, on more than one occasion.

Fairfax Circuit Judge Lorraine Nordlund said the divorce decree’s cohabitation provision was not self-executing and the spousal support obligation could not be modified without a court order. Under the divorce decree, any changes to the agreement had to be in writing, the trial court said. Nordlund ordered the husband to pay an arrearage of $437,050.60, and terminated support going forward.

A Court of Appeals panel reversed in a 2-1 decision.

The panel had to harmonize two statutes, said Judge Stephen R. McCullough – Va. Code § 20-109(A), which says a divorce court may modify or terminate support “that may thereafter accrue,” and Code § 20-109(C), which says courts must honor the plain meaning of a couple’s agreement on spousal support.

Neither the Court of Appeals nor the Supreme Court of Virginia has addressed whether parties to a divorce can, by agreement, modify the default rules for accrual and vesting of monthly spousal support, McCullough said.

The agreement at issue in Weidlein v. Weidlein was clear enough, the majority said. The husband was to pay $2,500 in monthly support. But, upon happening of “certain contingencies,” including the wife cohabiting with another man for a week or more, “such payments shall forever cease,” the agreement said.

The default rule, which specifies that monthly support payments accrue and become vested when they are due and unpaid, “operates only in the absence of a statute that modifies this default rule,” McCullough said.

Here, under Code § 20-109(C), the parties’ agreement controlled. When there is no agreement, the court order mandating monthly payment controls until modified by the court. Where there is an agreement, it must be enforced according to its plain terms, the majority reasoned.

The husband’s monthly support obligation never accrued and never vested after the point when the wife cohabited with another man for more than one week.

The appeals court was careful to distinguish “self-executing agreements” from agreements such as the Weidlein agreement, as the wife’s cohabitation “was not an event that could be empirically determined,” McCullough said. The payor’s self-interest and the need for an orderly process require “judicial resolution,” he said.

Judge Mary Grace O’Brien dissented, saying the trial court did not have authority to retroactively terminate the already-vested and accrued spousal support obligation. “There is no authority that allows a court to retroactively modify or terminate spousal support,” she said.

UPDATE:  On Dec. 8, 2015, the en banc Court of Appeals entered a published order vacating the Oct. 6 panel decision in Weidlein v. Weidlein, dismissing the appeal and remanding the case to the trial court for additional proceedings as may be required to carry out the terms of the parties’ settlement.

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