Virginia Lawyers Weekly VA Lawyers Weekly
Where the parties’ temporary agreement provided wife with lump sum and monthly payments, the trial court correctly refused to order husband to pay arrearages accrued under the agreement because wife waived her right to retroactive support in a consent order.
Waiver
“Wife argues that the trial court erred as a matter of law when it refused to require husband to pay wife pursuant to the Temporary Agreement; she argues that the Temporary Agreement is a marital settlement agreement pursuant to Code § 20-109(C) which requires the trial court to adopt its terms when awarding spousal support.
“Assuming without deciding that the Temporary Agreement is a marital settlement agreement within the contemplation of Code § 20-109(C), based upon her own theory, wife waived her right to retroactive pendente lite spousal support by consent order, which precludes the recovery she now seeks on appeal. …
“The Temporary Agreement distributed no marital property, directed husband to make certain payments to wife, provided for temporary management of real estate, and required wife to jointly file 2016 income taxes with husband.
“Because there is no permanent distribution of property or permanent support award contemplated in the Temporary Agreement, the trial court cannot make permanent property distributions or award permanent spousal support by simply following the terms in the Temporary Agreement.
“Moreover, any spousal support award solely based upon enforcing the terms of the Temporary Agreement would only result in a retroactive pendente lite spousal support award based on wife’s theory that the temporary agreement is the marital settlement agreement.
“Since wife waived any right to retroactive pendente lite spousal support in the consent order entered on October 4, 2019, the trial court is therefore precluded from enforcing the terms of the temporary agreement as it relates to spousal support based upon wife’s own theory.”
“We find no merit in wife’s argument that Code § 20-109(C) prohibited the trial court from entering a final decree that she claims was inconsistent with the monthly payments required under the Temporary Agreement.
“To be sure, that code section provides that when ‘a stipulation or contract signed by the party to whom such relief might otherwise be awarded is filed before entry of a final decree, no decree or order directing the payment of support and maintenance for the spouse … shall be entered except in accordance with that stipulation or contract.’ …
“But we specifically held in Newman v. Newman, 42 Va. App. 557 (2004) (en banc), that an agreement ‘embodied in a consent decree signed by counsel on behalf of their respective clients … qualifies as a stipulation or contact under Code § 20-109(C).’ …
“Here, the consent order in which wife waived her right to retractive pendente lite support was signed by counsel for both parties, as well as by wife herself. So the trial court did not err in holding wife to that waiver.”
Attorney fees
“Wife argues that the trial court erred by not awarding attorney fees. “Wife contends that in Thomas v. Thomas, 217 Va. 502 (1976), the Supreme Court recognized a strong presumption in favor of awarding attorney fees in divorce cases when spousal support is awarded and the payor spouse has the ability to pay.
“She extrapolates that a presumption in support of awarding attorney fees existed here, and therefore the trial court abused its discretion by not awarding her attorney fees under this presumption. We disagree.
“This Court clarified that ‘[w]e do not believe that the court in Thomas intended to adopt a rule that whenever a wife is granted support, the trial court must automatically award attorney’s fees.” Artis v. Artis, 4 Va. App. 132, 138 (1987).
“And, ‘[w]e read Thomas … to say that the relative financial abilities and support issues should be considered as factors in weighing the equities. However, these factors are not exclusively determinative of whether an award should or should not be made.” …
“[W]ife was awarded substantial assets from equitable distribution and spousal support. For example, she was awarded the right to receive half the proceeds of the sale of a marital property valued by the trial court at $1,500,000. She was also awarded sole ownership of an apartment the trial court valued at $250,000.
“Further, the trial court left undisturbed her ownership interest in two other properties. She was also awarded half of husband’s retirement assets.
“Therefore, this is not a situation like Thomas in which the disparity between the parties’ economic situations was so great that failure to award wife attorney fees was inequitable. Reviewing the record overall, we find that the trial court did not abuse its discretion in denying wife’s motion for attorney fees given the unique facts present in this case.
“Hence, we affirm the trial court’s decision denying wife attorney fees.”
Abdulsamad v. Deak, Record No. 0050-22-4, Nov. 9, 2022. CAV unpublished opinion (Athey Jr.). From the Circuit Court of Fairfax County (Devine). Samuel A. Leven for appellant. Fred M. Rejali for appellee. VLW 022-7-523, 9 pp.
