Will husband’s underreporting of his income justify a denial of his motion to modify spousal support following the bankruptcy of his former employer?
In the unpublished opinion of Argabright v. Argabright, the Virginia Court of Appeals upheld the decision of the Virginia Circuit Court denying the husband’s motion to terminate or reduce spousal support following the loss of a pension following the bankruptcy of his former employer.
At the time of the divorce, husband made approximately $100,000 a year from Chesapeake Corporation and wife was unemployed. The husband was ordered to pay $2,400 a month in spousal support to wife. The husband remarried a month later. Ten years later, he retired from his employment with Chesapeake Corporation. The husband received income from four sources: social security in the amount of $1,686 a month, two defined benefit plans or pensions from his former employer for $1,976 and $2,496 per month, and dividends and interest. When Chesapeake Corporation filed for bankruptcy twelve years later, husband lost his pension of $2,496 per month and filed a motion to modify or terminate his spousal support obligation.
At the time of the hearing, the wife was working part-time making less than $11 an hour for 20-28 hours a week. Husband had withdrawn money from an IRA, after accumulating more than $65,000 in a taxable account and $434,000 in an IRA. As is customary during a support hearing, husband submitted an income and expense statement and testified about his income and household expenses. The court found husband’s testimony and income and expense statement to be incredible and denied his motion.
On appeal, the Virginia Court of Appeals would not consider any of the husband’s questions presented as husband had failed to cite any legal authority to support his arguments, as required by Rule 5A:20(e) of the Rules of the Supreme Court of Virginia:
“The opening brief of appellant shall contain…
(e) The principles of law, the argument, and the authorities relating to each question presented. Where the question was not preserved in the trial court, counsel shall state why the good cause and/or ends of justice exceptions to Rule 5A:18 are applicable. With respect to each question, the principles, the argument, and the authorities shall be stated in one place and not scattered through the brief. At the option of counsel, the argument may be preceded by a brief summary.”
This case illustrates both the importance of truthfully presenting a party’s testimony and evidence at a hearing on a motion to modify support and the consequences of failing to follow the rules of appealing a case.
You should consult with your Virginia family law attorney concerning the best way to present evidence to justify a modification or termination of spousal support.