Will a court award spousal support of $12,000 a month to wife on top of a $2.5 million dollar equitable distribution award, when husband’s adultery was a significant, but not a primary cause of the end of the marriage?

Will a court award spousal support of $12,000 a month to wife on top of a $2.5 million dollar equitable distribution award, when husband’s adultery was a significant, but not a primary cause of the end of the marriage?

Yes, in the case of Gordon v. Gordon, Record No: 2038-16-02 (Va. App. 2017), where the Virginia Court of Appeals upheld the Chesterfield County Circuit Court judge’s award of spousal support to wife in the amount of $12,000 a month, on top of a $2.5 million dollar equitable distribution award.  The husband and wife were married for twenty-seven years before separating.  One child was born of the marriage and the wife stopped working outside the home to take care of the child.  In the six years before the equitable distribution hearing, the husband earned between $360,000 to $900,000 per year as a financial advisor.  Nevertheless, the family lived well below its means on approximately $9,000 a month, and managed to amass marital assets of approximately $4.5 million dollars.

At trial, husband’s vocational expert testified that the wife was capable of making between $24,000 to $29,000 a year.  The husband’s financial advisor expert testified that wife could expect to receive $65,000 a year, after taxes, from a potential recovery of $1.5 million dollars in equitable distribution.  Wife’s expert witness CPA testified that wife would have to pay income taxes of $4,678 on spousal support of $15,000 a month.  The wife’s evidence showed monthly living expenses of $28,578, while husband’s evidence of wife’s expenses was only $5,867.

The trial court judge found that husband’s adultery was significant, but not the primary cause of the end of the marriage.  While the husband made the primarily monetary contributions to the family, the wife contributed to the accumulation of marital assets by agreeing to live below the couple’s substantial means and by taking care of their son and home.  The divorce judge awarded wife half the marital assets in the amount of $2.5 million dollars, plus $12,000 a month in spousal support and $35,000 for her attorney’s fees and costs.  The court did not impute income to the wife because of her long absence from the workforce, and would not consider income from her award of equitable distribution as she would have to deplete her share of marital assets while husband kept his.

On appeal, the Virginia Court of Appeals affirmed the decisions of the trial court judge and denied wife’s request of attorney’s fees and costs for defending the appeal.  The court recognized that the standard of review on appeal for an award of spousal support was an abuse of discretion, citing Fox v. Fox, 61 Va. App. 185, 734 S.E.2d 662 (2012).  To overturn such a decision, the appellate court must find that it was plainly wrong or without evidence to support it, citing Robinson v. Robinson, 54 Va. App. 87, 675 S.E.2d 873 (2009).  While the wife has the burden of proof to support an award of support, Robbins v. Robbins, 48 Va. App. 466, 632 S.E.2d 615 (2004), the appellate court will view the evidence in the light most favorable to the wife.  The Duncan appellate opinion includes the following primer on the law of spousal support in Virginia:
“In fashioning an award of spousal support, a circuit court “must consider all the factors enumerated in Code § 20-107.1(E).” Fox, 61 Va. App. at 203, 734 S.E.2d at 671. Specifically, the court “shall consider the circumstances and factors which contributed to the dissolution of the marriage.” Code § 20-107.1(E). In addition, it is required to consider the parties’ needs, financial resources, standard of living during the marriage, ages, nonmonetary and monetary contributions to the well-being of the family, contributions to each other’s careers, property interests, and earning capacities. Id. Further, the court must take into account the duration of the marriage, equitable distribution of the marital property, and “[s]uch other factors . . . as are necessary to consider the equities between the parties.” Id. However, the court “is not ‘required to quantify or elaborate exactly what weight or consideration it has given’” each of the factors enumerated in Code § 20-107.1(E). Fox, 61 Va. App. at 203, 734 S.E.2d at 671 (quoting Woolley, 3 Va. App. at 345, 349 S.E.2d at 426). “Where [an] evidentiary foundation exists and the record discloses that the trial court has given consideration to each of the statutory factors, we will not disturb its determination as to spousal support on appeal.” Id. at 203-04, 734 S.E.2d at 671.”

In considering the equitable distribution award, the appellate court first pointed out the distinction between the considerations in equitable distribution and the considerations for spousal support, that spousal support requires a consideration of the equities between the parties and the standard of living established during the marriage while equitable distribution is concerned with the acquisition, growth and preservation of marital assets, citing Lightburn v. Lightburn, 22 Va. App. 612, 619, 472 S.E.2d 281, 284 (1996) and Robinson v. Robinson, 54 Va. App. 87, 92, 675 S.E.2d 873, 875 (2009).  Here, the trial court judge did consider the earnings from marital assets, but chose to reject the expert witnesses’ testimony because it would result in a depletion of wife’s marital assets while husband retained his.  How the judge chooses to weigh the evidence he considers is not properly the subject of an appeal.

Further, the appellate court noted that the trial court judge properly considered the factors in Virginia Code Section 20-107.1(E), including husband’s adultery which was significant but not the ultimate cause of the dissolution of the marriage.  The circuit court provided the reasoning and the factual basis for its award of spousal support.  As such, the record supported the judge’s factual findings and the judge did not abuse his discretion.  The judge was not plainly wrong in failing to impute income to the wife as he considered her earning capacity, but recognized her difficulty in obtaining meaningful employment after her absence from the job market.  The appellate court disregarded the husband’s argument that the award of spousal support was excessive relative to its finding of her monthly exceptions, as his misunderstanding that an award of spousal support is solely designed to maintain the spouse at her former standard of living during the marriage, citing Robinson and Miller v. Cox, 44 Va. App. 674, 685, 607 S.E.2d 126, 131 (2005).

The lesson of the Gordon case is that divorce trial judges have a great deal of discretion in Virginia, and you take your chances when you try a divorce case.

You should consult with your Virginia divorce lawyer or Glen Allen divorce lawyer James H. Wilson, Jr., to discuss your options and the best course of action.