Virginia Lawyers Weekly VA Lawyers Weekly
An incarcerated husband remains liable for his spousal support obligation but is not in contempt of court for failing to pay as ordered in the final divorce decree.
The court finds that husband’s spousal support arrearage is $489,239. Judgment is entered for wife in that amount.
Husband’s spousal support obligations cannot be modified based on a material change in circumstances because the parties voluntarily agreed to those terms in property settlement agreements signed before their 2013 divorce.
Overview
Before their divorce became final, husband agreed to pay wife $5,000 per month in spousal support. The final decree included provisions for enforcement, modification or revisions of the support agreement, which had been incorporated into the final decree.
Husband was indicted, convicted and sentenced to prison on several criminal charges. “As a result of his criminal convictions, he has federal restitution orders totaling more than $2.47 million and an IRS lien of approximately $87,000. … Husband was released from prison in May 2020. …
“Since his release, Husband has earned approximately $3,600 per month. … He testified that he has been ordered to make two $400 federal restitution payments per month and that he remains subject to the IRS lien. … He claims that he currently has no assets or other financial resources. …
“Husband made no spousal support payments while incarcerated, and since his release, he has made three spousal support payments totaling $300.”
Wife moved to reinstate the divorce case and seeks enforcement of the divorce decree, payment of past-due support totaling $489,239, and a finding that he is in contempt of court.
Husband asserts that his support obligation should have been stayed while he was incarcerated and that the property settlement agreements should be modified due to changed circumstances.
Analysis
“The Court is not aware of any Virginia decisions that have considered whether incarceration automatically terminates support obligations, and no Virginia statute provides that spousal support orders or obligations are stayed upon incarceration. …
“Virginia law allows for the increase, decrease, or termination of spousal support obligations when there is a ‘material change in the circumstances’ of the parties. … Such a change cannot have been reasonably contemplated by the parties when they agreed to the support provision. …
“Although incarceration of the party paying spousal support arguably constitutes a material change in circumstances, here there is evidence that Husband’s incarceration was reasonably contemplated by the parties, as he already had been indicted when the parties voluntarily entered into the most recent support agreement.
“Despite Husband’s opinion that he was not facing a substantial risk of conviction and associated incarceration, the possibility was certainly known to the parties. The parties could have addressed that contingency in their spousal support agreement but apparently chose not to. …
“Even if Husband’s incarceration constituted a material change in circumstances that would justify a reduction in spousal support, arguendo, the Court lacks the authority to retroactively modify support obligations. … Once the parties have agreed on the support obligation, ‘the statutes and case law specifically limit the divorce court’s authority to retroactively modify that amount, absent fraud.’ …
“Further, payments agreed to in the final decree of divorce ‘become vested as they accrue and the court is without authority to make any change as to past due installments.’ …
“As a result of his incarceration and the evidence regarding his assets both while incarcerated and since his release, the Court finds that Husband was unable to comply with the ordered spousal support provisions in the divorce decree and incorporated property settlement agreements.
“The Court therefore does not find Husband in contempt. Nevertheless, Husband’s obligation for back support is not extinguished. As of June 30, 2020, Husband owed Wife $489,239.35 in unpaid spousal support, the calculation of which Husband did not contest. …
“Husband seeks to modify the terms of property settlement agreements that predate the parties’ divorce decree. The agreements and decree are silent with respect to subsequent spousal support modifications. Under the earlier version of the statute [Code§ 20-109(C)], those terms are not modifiable. Under the current statute, however, there is a presumption that courts can modify pre-divorce-decree property settlement agreement terms.
“However, the new provision relates only to property settlement agreements executed on or after July 1, 2018. Here, all of the parties’ relevant agreements were executed prior to their February 19, 2013, divorce, years before the specified statutory date. Hence, the Court is not authorized to modify Husband’s spousal support obligations as he requests. The parties’ voluntary agreements regarding spousal support remain in effect.”
Martinovich v. Martinovich, Case No. CL11-7691-01, Oct. 14, 2020; Norfolk City Cir. Ct. (Lannetti). Ameet I. Habib, Jeffrey A. Martinovich for the parties. VLW 020-8-112, 8 pp.
