Trial Court Errs in Neglecting to Impute Income to Wife and Accepting Expenses Without Documentation
In the case of Brian McKee v. Barbara McKee, the Virginia Court of Appeals, in an unpublished opinion, held that the trial court erred in 1) neglecting to impute income to the wife, and 2) partially erred in setting the spousal support at a sum unjustified by the wife’s expenses and the husband’s capacity to pay. However, it found that on the third issue, husband’s argument that the child support expenses were covered by the spousal support award, the court found that the husband defaulted procedurally.
On the first issue, the Appeals Court held that the “wife had a duty to earn money to reduce husband’s spousal support obligation”, even though she had been a homemaker for many years at the time of separation. The wife held several degrees and could reasonably obtain a job that did not interfere with her child-rearing responsibilities. At the time of the hearing, the couple’s three minor children were all of school age and child care services were not an issue.
The second issue has three prongs. The first prong is that the wife received the marital residence in the parties’ property settlement agreement, and agreed to “indemnify and hold Husband harmless form any liability.” However, during the divorce hearing she sought to include the mortgage payment as part of her request for spousal support. The Court held that the “circuit court erred in holding husband could be made to pay for wife’s mortgage payment in spousal support. The debt on the marital property received consideration in the parties’ agreement when wife received the marital home and in exchange agreed to assume the debt.”
The second prong of the issue addresses the wife’s income and expense statement submitted to the court for consideration. Husband claimed that “wife improperly sought spousal support for a number of expenses she either did not have or failed to document.” The Appeals Court agreed with the husband and held that the “wife failed to meet her burden regarding these expenses and the circuit court erred in considering them in the spousal support award”.
The third issue regards the husband’s claim that the court “failed to consider his ability to pay the amount of spousal support awarded.” Husband claims a net income of $20,034 per month and expenses of $13,094. Husband argues that the circuit court’s order to pay, per month, $14,000 in spousal support, $1,680 in child support, and $429.50 for private school tuition, leaves him with insufficient funds to cover his expenses. The court holds that the “husband’s argument ignores the tax consequences of paying spousal support to wife,” and that after his tax savings are taken into account, he actually pays $8,606 in spousal support per month. The court further notes that husband purchased a million-dollar home after the separation for which he pays a $5,000 per month mortgage, and that the circuit court did not err in taking this into consideration when making their decision. “The circuit court stated that it did not ‘understand why he committed to this million dollar home right after separation before this was resolved … he has to remember that his first obligation would be to his family’.”
Lastly, the issue of whether or not the circuit court erred in awarding wife spousal support for expenses included in the child support award, the Court found that the husband defaulted procedurally on this issue because his counsel did not “raise the issue in question…before the circuit court,” and therefore, “he has waived any arguments under it.”