Virginia Lawyers Weekly VA Lawyers Weekly
The trial court properly granted retroactive child support in this divorce matter. Code § 20-108.1(B) provides that support “shall be determined retroactively,” and, contrary to husband’s assertion, the statute “contains no requirement of a pendente lite order or hearing to establish a retroactive obligation.”
Further, although the parties agreed to a custody order that made no provision for pendente lite support, she did not waive her right to either retroactive child or spousal support.
The court’s credibility determinations and imputation of income to wife were not an abuse of discretion.
Overview
Husband worked at THI, his parents’ business. For a time, wife also drew a salary from THI. The trial court determined that husband’s annual income in 2017 was $149,150. “In determining an appropriate amount of spousal support, the court determined that wife ‘is unskilled, primarily being out of the workforce, other than some work at THI, for [thirty] years while she was raising six children.’
“It concluded that her ‘ability to obtain reasonable employment is doubtful in the near term’ and imputed an annual $25,000 salary to her. The court ordered spousal support in the amount of $6250 per month ‘retroactive to the date of filing of the [c]omplaint for [d]ivorce on October 2, 2017.’Using the parties’ imputed incomes, the court ordered guideline child support of $1009 per month, also retroactive to October 2, 2017.”
Child support
Under Code § 20-108.1(B), a parent’s child support obligation begins when a pleading is filed requesting child support. … As an initial matter, husband is incorrect that wife never requested temporary child support.
“In her complaint for divorce, wife expressly sought ‘child and spousal support, both pendente lite and permanently at the conclusion of this case.’ Her pleading put the issue of child support, both temporary and final, before the court. … Husband’s assertion that wife waived her right to retroactive child support by not seeking a pendente lite support order is also without merit. The statute contains no requirement for a pendente lite order or hearing to establish a retroactive obligation. …
“At the time of the March 2019 trial, THI had eliminated wife’s salary; her actual income was $0. The court imputed a $25,000 yearly salary to wife. … Wife testified that she had not worked for THI in over ten years and understood her purported income to be portions of husband’s salary. The court found her testimony credible.
“Further, although wife’s 2017 and 2018 tax returns indicate that THI paid her $91,000 and $45,500, respectively, in those years, the court found that wife had no assets. The court determined that wife ‘was kept in the dark about [the parties’] financial status’ and ‘has almost nothing of her own.’ …
“Based on the record, including evidence of wife’s earning capacity, the court was not plainly wrong in imputing income of only $25,000 to wife. Additionally, given the statutory mandate of Code § 20-108.1(B) to make a child support order retroactive to the date of filing, and the court’s credibility determinations, it did not err in using wife’s imputed salary of $25,000 as the basis for child support retroactive to October 2, 2017.”
Spousal support
“Husband contends that the court abused its discretion by ordering retroactive spousal support because wife did not establish a need for support while the divorce was pending. He relies on the tax returns reflecting wife’s purported 2017 and 2018 earnings, as well as evidence concerning the proceeds from the sale of the townhouse and the flood insurance check.
“However, the court based its decision on specific factual findings regarding husband’s use of money to exert power over wife and his lack of candor with the court. The court found that husband limited wife’s earning capacity by keeping her ‘in her homemaker lane’ for thirty years.
“It concluded that because wife had been out of the job market while raising the couple’s six children, she had a limited ability to obtain reasonable employment in the near term.
“The court also found that the 2017 and 2018 tax returns did not accurately reflect wife’s income: in fact, she had not worked for THI in over ten years. The court accepted wife’s testimony that her ‘income’ was actually a portion of husband’s salary.
“Because credible evidence in the record supports these findings, we will not disturb them on appeal. …
“Husband’s contention that the court erred by failing to consider the proceeds from the sale of the rental property and the flood insurance check is likewise without merit. The court determined that the funds were in a joint account and were used for past-due mortgage payments and living expenses.
“Although the ‘living expenses’ were not quantified at trial, the court specifically found that husband intentionally ‘paint[ed] a cloudy evidentiary picture for purposes of this case.’
“The court had the discretion to discredit husband’s evidence that wife had no need or expenses during the retroactive period. Its findings were not plainly wrong or without evidentiary support. … Accordingly, we find no abuse of discretion by the court in ordering spousal support retroactive to the date wife filed her complaint for divorce.”
Chaudhry v. Chaudhry, Record No. 0896-19-4, Jan. 28, 2020. CAV (O’Brien) from Fairfax Cir. Ct. (Mann). Lawrence D. Diehl for appellant, No brief or argument for appellee. VLW 020-7-017, 14 pp. Unpublished.
