A Carluzzo Rochkind & Smith note: Following is an excellent article by Virginia Lawyers Weekly. Since 1987, our divorce lawyers in Manassas have helped clients gain spousal support in Manassas, Prince William County, Fairfax County, and throughout Northern Virginia. If you have any questions or would like to schedule an appointment, please contact our law firm at (703) 361-0776.
Wife established need for spousal support
By Virginia Lawyers Weekly – 3/28/2022
Even though wife did not put her income and expense report into evidence, she established a need for spousal support through her testimony, which the court found credible.
Husband was in the military. He was relocated several times during his career. His last assignment was to Springfield, Virginia in 2013.
“Husband served over twenty years in the Army before retiring in 2020. Wife struggled to obtain permanent employment or complete a master’s degree program during their marriage because of their frequent moves, which delayed her career and eliminated the possibility for retirement pensions.”
Wife “managed the home’s finances, eliminating the parties’ pre-marital debts and leaving them debt free. … The parties enjoyed a comfortable standard of living and took expensive trips[.]”
Husband obtained a 100 percent disability rating in 2019.
He “left the marriage and told wife he had done ‘everything to ensure [she] would never see a penny of [his] retirement.’ Husband elected to receive a lower amount of Combat Related Special Compensation as his retirement, which prevented wife from receiving any portion of it in the divorce. …
“Wife sought $2,500 per month in spousal support. She testified that although her budget had not suffered a deficit since she and husband separated, she had been unable to make any contributions to her Roth IRA or savings.
“Wife had prepared an income and expense statement for trial but testified that it was ‘bogus’ because it did not account for certain expenses, including state taxes, a car payment, liquid savings, medical expenses, family pet costs, and gymnastics fees for the parties’ children.
“Wife testified that she needed support from husband ‘to make ends meet’ and maintain the ‘standard of living’ she had during the marriage.
“Wife did not introduce the income and expense statement into evidence during her case-in-chief but asked the court to reopen the record and admit the exhibit. The circuit court denied wife’s request.”
Husband appeals the court’s award of $2,500 per month in spousal support to wife.
“Upon review of the record, we conclude that the evidence established wife’s need for spousal support. Notwithstanding wife’s failure to submit an income and expense statement, the circuit court correctly held that such evidence was not the ‘exclusive method’ available to wife to establish need.
“Indeed, nothing in Code § 20-107.1(E) or our case law dictates how a party must demonstrate need for support. …
“Here, the evidence established that, during the marriage, the parties saved between $3,000 and $5,000 per month and contributed the maximum amount allowed within tax limits to the IRAs, up to $450 per month.
“Wife testified, however, that since the parties separated, she had been unable to make any contributions to retirement accounts or savings.
“Further when all of her expenses were accounted for – including taxes, a car payment, medical expenses, family pet costs, and gymnastics fees for the children – she needed support from husband ‘to make ends meet’ and maintain the ‘standard of living’ she had enjoyed during the marriage.
“Husband criticizes wife’s testimony as ‘speculative’ because she failed to provide exact figures for her expenses. But Code § 20-107.1(E) only ‘requires … the factfinder to “consider” the estimated needs of the parties.’ …(emphasis added).
“In addition, it is well-established that ‘[t]he credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.’ …
“After weighing all the evidence in this case, the circuit court credited wife’s testimony concerning her post-separation finances and found that she had established need. Husband points to nothing in wife’s testimony that was so unworthy of belief as to render it inherently incredible as a matter of law.
“Thus, we may not disturb the circuit court’s credibility determination on appeal.”
“After weighing the evidence and considering each of the Code § 20-107.1(E) factors, the circuit court awarded wife $2,000 per month in spousal support, approximately half of what the parties contributed to savings each month during the marriage. …
“That award was well within the circuit court’s ‘range of choice,’ and ‘not influenced by any mistake of law.’ … Moreover, there is no evidence in this record that the court did not consider a relevant factor, considered an irrelevant or improper factor, or committed ‘a clear error of judgment’ when considering all the appropriate statutory factors, which required only an estimate of wife’s needs. …
“Therefore, under our standard of review, we cannot say that the circuit court abused its discretion.”
Elliott v. Elliott, Record No. 0754-21-4, March 1, 2022. CAV (Annunziata) from the Circuit Court of Fairfax County (Smith). Demian J. McGarry for appellant. Juli M. Porto for appellee. VLW 022-7-041, 8 pp. Unpublished.
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