Virginia Lawyers Weekly VA Lawyers Weekly
A former Secret Service agent must maintain the same support obligation as before he voluntarily retired. Although he had been depleting his savings and relying on his current wife to make payments, his ex-wife’s relative financial situation justified the status quo.
Background
Husband and Wife were married for nearly 22 years before separating in 2010. During the marriage, Wife left a career in the State Department to be a stay-at-home mother while Husband worked for the U.S. Secret Service. When they finalized their divorce in 2012, their property settlement agreement included an obligation for Husband to pay Wife $3,100 per month in spousal support “until modified based on a material change of circumstances,” such as Husband’s retirement.
After a 30-year career, Husband retired in April 2016 at the age of 56, due to the substantial physical rigors of Secret Service training. He found subsequent employment as a school security officer, earning $39,696 per year. He also received substantial pension payments from his retirement, split between himself and Wife. He has a balance of about $347,000 in a federal Thrift Savings Plan account.
Wife is currently employed as a paraprofessional at an elementary school in Stafford County, earning approximately $15,800 per year. Her future earning potential is limited in part due to a lifelong eye condition that makes reading difficult and limits her distance vision. She has difficulty looking at screens for extended periods, and she has a restricted driver’s license that only allows her to drive during daylight.
Following his retirement, Husband petitioned the circuit court to reduce the amount of his support payments by approximately $800 per month. The trial court denied the petition, and Husband appealed.
Support adjustments
The trial evidence showed that Husband’s income dropped significantly following his retirement from the Secret Service. In the few years prior to his retirement, his yearly income was around $140,000. In 2015, his last full year before retirement, his total income was approximately $160,000. His yearly salary at his new security-officer position is significantly lower, and although his monthly income has diminished overall, it remains substantial due to his monthly retirement benefits disbursement. Husband’s current overall monthly income exceeds $6,800, of which $2,315 comes from his retirement benefits. Wife receives $1,607 per month from Husband’s retirement benefits.
Contrary to Husband’s contention that the reduction in support is warranted to essentially equalize Wife’s monthly income and expenses, this court has previously rejected the notion that a payee-spouse is only entitled to receive an amount that results in such equalization. The evidence presented in this case is analogous to the court’s previous decisions in Robinson v. Robinson, 54 Va. App. 87 (2009), and Gordon v. Gordon, No. 2038-16-2 (Va. Ct. App. July 11, 2017).
Wife was a stay-at-home-mother while Husband consistently worked long hours throughout his career. Wife stopped pursuing her own career and was the primary caregiver to the parties’ children, managing day-to-day household affairs almost entirely by herself. As a result, Wife doesn’t have significant employment prospects, and any future efforts to obtain a higher income will be hampered by her vision issues, as she can only drive during the daylight and cannot view computer screens for extended periods.
By contrast, Husband shares income and expenses with his new wife. They purchased a new condominium together, for which Husband paid $91,000 toward the down payment. The evidence did not establish that Husband has encountered any obstacles paying spousal support, only that he has occasionally had to rely on other means of payment. In addition to his current salary and retirement payout, Husband also has a substantial quantity of savings. Moreover, Husband’s new wife has already assisted him with making his monthly support payment and further testified that, if Husband is unable to cover his share of their expenses, she would pick up the slack.
While the court does not suggest that Husband lacked good reason to step away from the considerable rigors of his former position, the opportunity to continue working in other government service was likely available.
In sum, the evidence establishes that Husband remains able to pay $3,100 per month. Thus, his only remaining refuge portends to lie in attempting to downplay Wife’s financial needs. But by his own calculations, if support remains the same, Wife will receive approximately $709 more than her stated monthly expenses. The trial court’s factual findings justify the surplus between these expenses and her income.
Affirmed.
Giambattista v. Giambattista, Record No. 1043-17-4, Mar. 13, 2018. CAV (Alston), from Stafford Cir. Ct. (Bass). Benton S. Duffett III for Appellant; Lawrence D. Diehl for Appellee. VLW No. 018-7-054, 11 pp.
