Jurczuk v. Sessions
| Decision Date | 06 June 2019 |
| Docket Number | Case No. CL-2009-15967,Case No. CL-2009-7181 |
| Court | Circuit Court of Virginia |
| Parties | Re: Teresa V. Jurczuk v. Jeffrey Dale Sessions |
Mr. Douglas E. Milman
Wexell Milman
14480 Armstrong Street
Fairfax, VA 22030
Counsel for Plaintiff
Mr. James R. Cottrell
Mr. John K. Cottrell
Cottrell, Fletcher and Cottrell
5845 Richmond Highway, Suite 800
Alexandria, VA 22303
Counsel for Defendant
Dear Counsel:
This cause is before the Court on Plaintiff's Petition to exercise a reservation1 for additional spousal support in accordance with the parties' property settlement agreement("PSA" or the "Agreement"), which was incorporated into their Final Decree of Divorce and allowed a "reservation of spousal support for 60 months during which time" Plaintiff could file her request with the Court. The Petition presents the Court with threshold issues of consideration for the relief sought, namely: whether Plaintiff has the burden to show a material change in circumstances in the context of a contractual agreement allowing Plaintiff to invoke relief under a reservation of spousal support; whether such burden may be met solely by showing an increase in Defendant's ability to pay; whether Plaintiff's alleged deficiencies in making efforts to habilitate a lifestyle commensurate to that which she enjoyed during marriage is a proper consideration in awarding her additional support in the context of a reservation that is product of an agreement; what the limiting principle is for the Court's exercise of its discretion to grant additional spousal support in the context of the contractual reservation clause; and whether the scope of the reservation is contractually limited to sixty months in duration. For the reasons as more fully stated herein the Court holds as follows; (1) No material change in circumstances need be proven as a prerequisite for the Court to consider exercise of a reservation of spousal support by Plaintiff; (2) If there were a requirement for material change in circumstances, the Court finds that the Defendant's inordinate increase in ability to pay, coupled with the Plaintiff's demonstrated history of inability to obtain self-sustaining employment, are bothmaterial changes in circumstances which allow the Court to reach the merits of the claim under the reservation, where the interplay between need and ability to pay dictate the award of additional spousal support, if any, that the Court may make; and (3) The intention of the parties in their PSA was to limit the period for payment of any additional spousal support to sixty months in duration, to be exercised within five years of the expiration of the initial award of spousal support, for the Agreement contained two periods of stepped down support over the nine years subsequent to entry of the divorce decree, followed by a reservation of five years during which supplementary support could be awarded.
Consequently, the Court shall by separate order incorporating its ruling herein detail application of the factors in Virginia Code § 20-107.1(E) to the evidence adduced at trial in evaluation of Plaintiff's petition for additional spousal support pursuant to the reservation in the parties' PSA, and make such judgment as is proper consistent with this opinion.
The parties were married on May 5, 1988, and divorced by final order of this Court on July 13, 2010. Incorporated into the Final Decree of Divorce was the parties' Property and Support Settlement Agreement dated January 19, 2010. Pursuant to the Agreement, the Defendant ("Husband")2 was required to pay spousal support to the Plaintiff ("Wife") as follows:
The Agreement also contained a reservation for additional spousal support.
Commencing January 1, 2019, Wife shall have a reservation for support for sixty (60) months during which time she may petition the Court for additional spousal support. The power and jurisdiction of the Circuit Court of Fairfax County is specifically reserved and retained for this purpose.
On January 10, 2019, the Plaintiff filed her Petition and Motion for Additional Spousal Support Pursuant to a Reservation. Defendant posits Plaintiff is not entitled to supplementary support in exercise of the reservation because Plaintiff is now employed part-time in contrast to being unemployed at the time of divorce, and that her circumstances have therefore improved. Defendant maintains that there is thus no material change in circumstances that would permit this Court the discretion to provide for additional support. As a fallback position, Defendant maintains any additional support is limited by the parties' PSA to five years in duration. Plaintiff maintains she need not prove a material change in circumstances to invoke the reservation as a matter of law, and that the contractual language does not restrict the duration for which the Court may award added support. Plaintiff asks she be awarded spousal support for an additional period of fourteen years.
In the instant case, the PSA is silent on the question of whether the parties intended Plaintiff satisfy there is a "material change in circumstances" as a precondition to the award of supplementary spousal support under the reservation included in the Agreement. Absent contractual limitation, a threshold issue in this cause is thus whether this Court must treat exercise by Plaintiff of the reservation of spousal support de novo under Virginia Code § 20-109, moving directly to evaluate the factors contained in Virginia Code § 20-107.1(E), or whether the law instead compels the Court first make a finding of a "material change in circumstances." Since the Plaintiff invokes the power of the Court to consider a reservation pursuant to the parties' PSA, which does not address the issue of material change, the Court must resort to determining the confines of power with which the Court is clothed by statute. The Court is empowered in a divorce to grant a reservation of spousal support, be it in supplement or in lieu of an award at the time of the original decree. The statute reads:
In addition to or in lieu of an award pursuant to subsection C, the court may reserve the right of a party to receive support in the future. In any case in which the right to support is so reserved, there shall be a rebuttable presumption that the reservation will continue for a period equal to 50 percent of the length of time between the date of the marriage and the date of separation. Once granted, the duration of such a reservation shall not be subject to modification.
Va. Code § 20-107.1(D). The word "may" in the above statute is really a "shall" when a spouse requests a reservation be included in the final decree. "It is reversible error for a court to fail to make such a reservation when expressly requested to do so by a party." D'Auria v. D'Auria, 1 Va. App. 455, 462, 340 S.E.2d 164, 168 (1986) (citing Gagliano v. Gagliano, 215 Va. 447, 452, 211 S.E.2d 62, 66 (1975)). Virginia Code § 20-109 governs modification of spousal support awards:
The Defendant first relies on Barton v. Barton, 31 Va. 175, 522 S.E.2d 373 (1999), as controlling authority requiring Plaintiff prove a material change in circumstances before any additional support may be awarded under the reservation. Barton, however, involved a "motion to reduce spousal support" rather than exercise of a reservation to provide an additional period of support. Id., 31 Va. App. at 177, 522 S.E.2d at 374. Thus, the modification language in Barton does not apply by context to the reservation case at bar.
The Defendant next relies on language in Bacon v. Bacon, 3 Va. App. 484, 351 S.E.2d 37 (1986). The syntax in that case superficially invites the concept that a "material change in circumstances" is a prerequisite for the exercise of a reservation of spousal support. The Court of Appeals stated, "Therefore, Mrs. Bacon was...
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