Everett Creates a Res Judicata Problem
with Temporary Spousal Support
Everett v. Tawes, Record No. 181238, (VA Sup. Ct., October 31, 2019)
In Everett v. Tawes, a trial judge declined to modify pendente lite spousal support, expressing uncertainty about whether he had the power to change the existing order. The Court of Appeals affirmed. But the Virginia Supreme Court remanded the case, creating an unresolved issue: whether a support recipient must return money to the support payor after a support award is modified or reversed.
A divorcing chef in Williamsburg at a pendente lite spousal support hearing presented the accounting equivalent of nouvelle cuisine; he judge-shopped the creative assertion that income on his tax return should be disregarded in determining spousal support because he never received the money.
The second trial judge to examine the chef’s spousal support obligation, being baffled by the reasoning, failed to recognize that an interlocutory order is modifiable. This second judge should have determined whether there had been a material change in circumstances following entry of the original support order, but did not do so.
The Supreme Court might have simply confirmed that a pendente lite order is modifiable by statute, and designated the ruling as not being one for publication. Instead, the Court reached back 172 years for precedent establishing that a pendente lite spousal support order is retroactively modifiable. Flemings v. Riddick, 46 Va. (5 Gratt.) 272, 280–81 (1848). The word “retroactively” may create a problem.
The Everett ruling may conflict with the principle of res judicata; the Supreme Court fails to state whether spousal support paid in the past and retroactively reduced is reimbursable to the payor.
Traditionally, the principal of res judicata makes interim support stay the same during the time the order setting that support is in effect, regardless of whether that support is later voided, modified or withdrawn. Any subsequent order could only change the amount of support from the date of the new order, going forward. In other words, if unpaid past support is still owed under the new order, it is still owed. If past support was higher than the amount under the new order, the support recipient cannot be forced to return overpayment to the support payor.
The open question in Everett is whether a needy spouse may be ordered to pay back support actually paid that – for whatever reason – is later determined to have been excessive.
Traditionally, there are two differences between pendente lite support and permanent support. Pendente lite support can be modified without showing a change in circumstances and cannot be appealed. Permanent support cannot be modified unless there is a material change in circumstances, and it can be appealed.
An obligation to return support monies received in the past would cause substantial harm to support recipients. Most spousal support recipients spend the money on food, rent, utilities and other necessaries. They do not have the financial means to pay money back. If the word “retroactive” is to be accorded any meaning at all, then the prior support order has to be set aside. Support ordered in the past is no longer owed, because the order establishing the obligation is withdrawn. Whatever was paid in the past was never owed. It may have to be paid back.
As a result of Everett, support payors like the Williamsburg chef will be motivated to withhold court-ordered interim support payments until a second pendente lite hearing (as this chef did) or until a final hearing on divorce. Further, support payors like the chef have no reason to bring their expert to the first pendente lite hearing. If the hearing does not turn out to their satisfaction, they may schedule another on the same issue and the same facts, and bring their expert. If they are lucky, they might even get a different judge. At his second support hearing, the chef brought an expert to testify about his tax returns.
If a support payor prevails at a subsequent hearing in obtaining any retroactive support reduction, then they may not only avoid being found in contempt for failing to fully comply with the previous order; they may also keep the support previously owed but never paid.
Everett may significantly increase the under-payment or non-payment of court-ordered spousal support leading up to divorce. In our current economy with massive unemployment and inability to pay rent, the impact of Everett on needy spouses may be catastrophic. Until the impact of this decision is further clarified, wealthier spouses may take advantage of more than one hearing in which to minimize their support obligation.
Exercise of Power of Attorney Correctly Nullified in Davis
But by Unnecessarily Convoluted Reasoning
Davis v. Davis, Record No. 181192 (December 5, 2019).
The Virginia Supreme Court in Davis interprets a power of attorney. The decision correctly nullifies the agent’s transfers exceeding their authority, but focuses upon an unrelated issue (obiter dictum) and ignores critical facts that might have simplified the ruling.
I. Virginia Code Section 64.2-1622 (H) is Irrelevant.
After the Virginia Supreme Court in Davis concludes that the power of attorney under consideration does not authorize gifts, the Court explains how Code Section 64.2-1622 (H) would apply to a power of attorney that does authorize gift-giving. In my opinion, it was unnecessary for the Court to comment extensively on how the case would be decided if absent verbiage were present.
Virginia courts usually do not devote judicial resources to expounding upon issues that are immaterial to the case at hand. The practice is disfavored. Cumbo v. Dickenson Cty. Dep’t of Soc. Servs., 62 Va. App. 124, 127 n.2 (2013), (noting that appellate courts should decide cases on the “best and narrowest” grounds (quoting Luginbyhl v. Commonwealth, 48 Va. App. 58, 64 (2006) (en banc)).
Judicial reasoning regarding gift-giving in powers of attorney is particularly unnecessary when no facts before the Court in Davis support the existence of a gift by power of attorney.
II. Egregious Conduct Bordering on Fraud Makes
a Detailed Review of the Power of Attorney Unnecessary
The agent in the power of attorney testified she had no intention of gifting property. No evidence conflicts with her admission. Virginia’s highest court might have avoided discussing the gifting statute at all, had it ruled the trial court decision was without evidence to support it. Upon remand, the trial court might have been directed to consider a constructive trust, or other remedies.
Given the rapid conveyance of every parcel the grantor owned under such suspicious circumstances, the Supreme Court might, in my view, have easily ruled that Invoking the gifting statute despite such patently improper conduct was clearly erroneous; or the finding of a gift was without evidence to support it.
The agent’s conduct was prima facie incompatible with her fiduciary duty for the following reasons:
(1) The agent conveyed over Two Million Dollars of property – everything the grantor owned;
(2) The agent never notified the grantor after liquidating his estate. Grantor was generally lucid except for occasional confusion. Since this was not a guardianship or conservatorship and grantor was not comatose or judicially determined to be incompetent, his agent’s affirmative concealment of her exercise of his power of attorney constituted misconduct;
(3) Fifteen days before making the transfers, the agent learned grantor had married. The agent may have been attempting to divert assets from grantor’s new wife, the natural object of his bounty; and,
(4) Six days before the conveyances, the hospital called a “code blue” indicating grantor was in a life-threatening condition. The agent may have believed grantor was about to die and render her powerless to transfer his property to her relatives.
The Virginia Supreme Court did not need to parse the gift-giving authority of the power of attorney at all, when the agent by her own admission was not making gifts. When an agent’s conduct is so self-serving, a court need not examine her scope of authority at all.
Olivier D. Long, Esquire
Member of the Virginia State Bar since 1977
 When statutory authority exists to resolve facts, and material and relevant facts are admitted into evidence, a guiding principal is that “not to decide is to decide”.
“As mathematical and absolute certainty is seldom to be attained in human affairs, reason and public utility require that judges and all mankind in forming their opinions of the truth of facts should be regulated by the superior number of the probabilities on the one side or the other whether the amount of these probabilities be expressed in words and arguments or by figures and numbers.”
Ernest King, Fleet Admiral King: A Naval Record (1952), p. viii.