Husband’s spousal support obligation eased

Where wife’s income and expense worksheet “exaggerates her need for financial support,” the court will modify its previously issued pendente lite spousal support award.

Prior proceedings

The parties were married in August 2014. They have no children but wife has a 17-year-old daughter from a previous marriage. Wife has multiple sclerosis.

“She was hospitalized from June 30 – July 18, 2020 for sepsis, which required surgery and resulted in kidney failure. Wife alleges that the parties separated while under the same roof commencing July 19, 2020. After Husband asked Wife to move out of the former marital residence several times, Wife moved out on July 23, 2020.”

Wife sued for separate maintenance. After a pendente lite hearing, the court awarded wife $4,000 per month in spousal support. Husband objected. He argued that wife overstated her needs and he cannot afford to pay the amount ordered.

Husband also sued for divorce and filed a motion for pendente lite relief. Wife argues that res judicata and collateral estoppel precludes any support award relief. She has also moved to consolidate the separate maintenance and divorce actions.

Consolidation

“Wife filed a motion to consolidate the divorce and separate maintenance suits. Husband objects to the same, asserting that the causes of action are too distinct, involve different legal standards, and cannot be tried at the same proceeding. While the court acknowledges that there are distinctions between the separate maintenance cause of action and a request for spousal support in a divorce case, in the court’s estimation, these distinctions are not a bar to consolidating these matters. … 

“Separate maintenance is a creation of common law, where a spouse may seek maintenance and support from the other spouse while living separate and apart from them without being divorced.” The Virginia Code also references separate maintenance “as a different cause of action from divorce or annulment, the main distinction being that separate maintenance is only available to married parties, while spousal support in a divorce context continues after the marriage is terminated. 

“However, while the causes of action are different, the facts and issues in both  matters are nearly identical. First, the two cases arise from the same transaction, the marriage of the parties and subsequent separation. They are of the same nature, as Wife, by virtue of her status as Husband’s wife, is seeking monetary support from her spouse. 

“Wife requests financial support in both the separate maintenance suit and as part of her counterclaim in the divorce suit. Pursuant to Code§ 20-107.l(E), the Court must consider the same 13 factors when determining an award of spousal support or maintenance. Accordingly, the outcome of both matters will rely on substantially the same evidence. This includes Wife’s need and Husband’s demonstrated ability to pay in addition to the factors in Code § 20-107.1(E).”

Neither party will be prejudiced by consolidation. Wife’s motion is granted.

Reconsideration of support

Wife argues that res judicata bars reconsideration of the support award the court previously issued.

“[U]nder Rule 1:6, the test to determine whether res judicata applies is: (1) whether there has been a final judgment on the merits, (2) whether the parties are the same, and (3) whether the later lawsuit arises from the same conduct, transaction, or occurrence as the earlier lawsuit.’ …

“Wife’s claim of res judicata fails on the first element, as there has been no ‘final judgment on the merits’ in the separate maintenance suit. The pendente lite order in the separate maintenance suit is an interlocutory order, not a final order. 

“Wife cites to an unpublished Court of Appeals case for the proposition that a pendente lite order ‘has the effect of res judicata as to the facts existing at the time the motion for such support was made, and a spouse seeking modification of pendente lite support must show a material change of circumstances subsequent to the entry of the pendente lite order that warrants the relief sought.’ …

“However, an unpublished decision is not binding authority, though it may be persuasive. … Further, the Virginia Supreme Court has recently ruled on the issue of modifying pendente lite orders, and its holding supersedes the nonbinding authority cited by Wife. …

“Pursuant to explicit Supreme Court of Virginia precedent, this Court has the power to retroactively modify a pendente lite spousal support order, and Wife’s plea of res judicata on the issue of pendente lite support is denied.”

Modification

“Husband has asked this court to vacate or modify the pendente lite spousal support award contained in the September 4, 2020 order. …

“The court finds the following information to be most persuasive on the issue of spousal support:

“First, the court notes that the income and expense worksheet which Wife submitted for pendente lite purposes exaggerates her need for financial support. Wife claims expenses of over $3,000 per month for living expenses, but is currently living rent free with her former husband. Wife also claimed expenses for her daughter, who is not a party of the marriage and whom Husband does not have a legal duty to support.

“Second, the court notes that the duration of the marriage, 6 years, is not one that merits an extensive spousal support award. Further, Husband is currently paying the mortgage on the marital home as well as marital credit cards. At the hearing, the court noted that Wife’s health issues somewhat balanced the short duration of the marriage. As Husband is currently providing health insurance coverage for the Wife, the court continues to consider Wife’s physical condition in its calculus.

“Finally, the court considers Husband’s assertions that he is unable to pay the stated amount and has had to borrow money to meet all of his obligations, including the mortgage and marital debt. Although Husband earns a good living, the court will not burden him with an award that he has demonstrated he is unable to pay.

“Based on the foregoing, the court grants Husband’s motion to modify the pendente lite order in the separate maintenance suit. Wife is awarded monthly spousal support in the amount of$1,250, payable on the first day of the month. This award is retroactive to the date of filing of the action for separate maintenance, and the Husband is allowed a credit against future payments as to the result total overpayment with monthly payments to thereafter resume pendente lite when such credit is exhausted.”

Lamboy v. Lamboy, Case No. CL 20-6846, Feb. 24, 2021, Loudoun County Cir. Ct. Opinion and Order (Fisher). Robert L. Vaughn Jr., Lindsay Mohler for the parties. VLW 021-8-031, 10 pp.