Virginia Lawyers Weekly VA Lawyers Weekly
The trial court enforced the parties’ separation agreement, which provided for monthly spousal support payments to end if the former wife entered into a long-term relationship. The appellate court rejected her appeal of the termination, finding that the two arguments she raised on appeal were not presented to the trial court and the record did not show good cause for her failure to preserve the issues.
Background
On Aug. 10, 2009, the parties separated and filed a memorandum of settlement agreement in Virginia Beach. On Nov. 26, 2012, the parties filed a supplemental stipulation to their agreement providing husband would pay monthly spousal support to the wife totaling $3,600, but that the requirement would “terminate upon the death of either party or until Wife remarries of [sic] in a relationship analogous to marriage for a period of more than twelve (12) months.” On April 26, 2013, a final decree of divorce was entered in Virginia Beach Circuit Court that ratified, affirmed and incorporated but did not merge both previous agreements into the final decree.
In 2015, both parties initiated proceedings in the JDR court. Husband filed a motion to terminate spousal support alleging wife had been in a relationship analogous to marriage for a period of more than 12 months. Wife filed a show cause alleging husband was in arrears $14,540.53.
On Nov. 19, 2015, the JDR court terminated spousal support, effective June 30, 2015. It also held husband was in arrears by $6,186 and ordered him to pay the arrearage with 6 percent interest within 60 days of the order. Wife appealed the orders to the trial court.
The trial court concluded wife had been in a relationship analogous to marriage for more than 12 months and terminated spousal support. The trial court found husband in arrears by $4,950, but withheld any finding of willful contempt. This appeal followed.
Analysis
In her first assignment of error, wife claims the trial court erred in not granting her motion to strike husband’s motion to terminate support. She argues he was in material breach of their separation agreement first, and, therefore he could not sue to enforce the agreement. However, wife never presented this argument to the trial court. Accordingly, wife failed to preserve the alleged error, under Rule 5A:18, that husband’s first material breach bars termination of support.
In her second assignment of error, wife claims the trial court erred in failing to permit her to present evidence that husband’s failure to pay spousal support constituted a material change in circumstance that warranted a modification of the contractual terms of the support obligation. Again, wife did not make this argument to the trial court. Therefore, wife waived any error regarding a material change in circumstances by failing to present it to the trial court, and, in accordance with Rule 5A:18, this court will not consider it
In her reply brief, wife contends that even if the issues are not preserved properly for appeal, good cause exists to allow her arguments to be heard on appeal. The good cause exception under Rule 5A:18 allows this court to consider an appeal when there was good cause for the failure to preserve the issue. Here, nothing in the record demonstrates good cause for her failure to preserve the issues.
Affirmed.
Lawson v. Lawson, Record No. 1004-18-1, Dec. 26, 2018. CAV (Huff) from Virginia Beach Cir. Ct. (Mahan). Matthew J. Weinberg for Appellant, Mary T. Morgan for Appellee. VLW No. 018-7-339, 8 pp.
