DAILEY v. DAILEY

DAVID H. DAILEY,
v.
JANICE M. DAILEY.

Record No. 0922-11-4.

Court of Appeals of Virginia.

March 6, 2012.

John K. Cottrell (Cottrell Fletcher Schinstock Bartol & Cottrell, on briefs), for appellant.

Dorothy M. Isaacs (Surovell, Isaacs, Petersen & Levy, PLC, on brief), for appellee.

Present: Judges Frank, McCullough and Senior Judge Annunziata.

OPINION

STEPHEN R. McCULLOUGH, Judge.

David H. Dailey ("husband") contends that the trial court erred in holding that his retirement, and the share of that retirement that is being disbursed to his former wife, Janice M. Dailey ("wife"), did not constitute a basis to modify the husband's spousal support obligation to wife. We agree with husband and, therefore, reverse and remand.

BACKGROUND

Husband and wife were divorced in 2009. The final decree of divorce, dated September 14, 2009, incorporated the parties' property settlement agreement. The agreement provides that husband must pay wife $1,000 per month in spousal support "to continue . . . until such time as the Wife's remarriage, or cohabitation with another person in a relationship analogous to marriage for a period of one year, or Wife's death, or Husband's death, whichever first occurs. The support provided for herein shall be modifiable upon a material change in circumstances . . . ." The agreement further specifies, with respect to husband's retirement, that wife "shall receive fifty percent (50%) of the marital share of the Husband's gross retirement pay if as and when received by the Husband." At the time of the divorce, husband was working for the Fairfax County Police Department. He had worked there for 29-and-a-half years. The Fairfax County retirement plan in question does not contain a survivor benefit for an ex-wife when the divorce occurs prior to retirement. Husband testified that at the time of the entry of the divorce decree, husband had no plans to retire.

On November 19, 2010, husband retired from the Fairfax County Police Department and obtained employment as a Deputy Sheriff in Loudoun County. As a consequence, wife began to receive both the spousal support and her share of husband's retirement pension. Prior to retirement, wife received $1,000 per month from husband in spousal support. Following husband's retirement, wife received a combined spousal support and pension share of approximately $3,900 per month.

Husband filed a motion to terminate or reduce wife's spousal support. He contended that his retirement, and wife's receipt of her share of his retirement pension, constituted a material change in circumstances. Wife agreed that a change in circumstances had occurred, but resisted any modification of support, contending that the parties had contemplated the change at the time they entered into their agreement. Following a hearing, the trial court noted that the parties agreed that a material change in circumstances had occurred. The court proceeded to consider the factors found in Code § 20-107.1(E)(1). After reviewing the factors, the court concluded that no modification of spousal support was warranted because paying both spousal support and a share of retirement was exactly what the parties had "bargained for." Husband appeals from this decision.

Morrogh finds cop he doesn’t love. In other news, hell freezes.

Probe of fatal police shooting goes to federal authorities

By Justin Jouvenal/Post

The Fairfax County prosecutor has turned over the investigation of a fatal police shooting of an unarmed Springfield man to federal authorities, citing complications with the five-month-old case.

Commonwealth’s Attorney Ray Morrogh said the U.S. attorney’s office for the Eastern District of Virginia has agreed to continue the probe into the death of 46-year-old John Geer, who was shot during a standoff with Fairfax County police in August. No one has been charged in the incident.

“There is a conflict of interest that has arisen in the case,” Morrogh said Thursday. “And there is a second potential conflict of interest that has arisen out of my office. . . . This is the prudent thing to do.”

Morrogh declined to describe the nature of the conflicts because the investigation is ongoing. The U.S. attorney’s office said Thursday that it could not confirm or deny any investigation or comment on pending investigations.

Police went to Geer’s Pebble Brook Court home on Aug. 29 because of a report of a domestic disturbance. Geer’s father, Don Geer, said his son was upset because his girlfriend, the mother of his two children, had decided to leave him.

John Geer had thrown his girlfriend’s belongings in the front yard. She called police and told them that Geer had a firearm. Police said they tried for about 50 minutes to persuade Geer to leave the home, but he refused.

Don Geer said he watched the climax of the encounter. He said that he could not hear what officers were saying to his son but that he saw him standing with empty hands resting on top of a screen door at the home’s entrance.

At some point, John Geer began to slowly lower his hands and an officer opened fire, hitting Geer in the chest, his father said. Geer retreated inside and closed the door. A SWAT team eventually entered the home and found Geer dead.

Don Geer said detectives later told him that his son did not have a gun on him at the time of the shooting but that there was a holstered handgun a couple of steps from the front door.

Don Geer said it appeared to him that the shooting was unjustified, but he was unsure what to make of the probe being turned over to federal authorities.

“I don’t know whether that’s good or bad — if I had a better idea of why they are doing it, I could form an opinion,” he said.

Geer and friends of his son have been critical of how long the investigation has taken, but Morrogh said police and prosecutors were working to explore all the evidence. He did not think federal prosecutors would have to start from scratch.

“No one wants these things to linger on,” Morrogh said.

Our ink will outlast his career

Under the reign of former Chief of Police Rhorer the Fairfax County Police arrested a man for not wearing clothes in his house while he made coffee, set up an eye doctor on a gambling charge and then used the SWAT team to kill him. An investigation into the charge that the Doctor’s primary clients were cops has never been investigated. The police gunned down an emotionally unstable man because cop who shot him wrongly assumed the man was trying to escape. He wasn’t. The cops also shot dead four other citizens under highly questionable circumstances. The department under Rhorer was sued multiple times by citizens. So did they fire Rhorer? Naw they promoted him. According to news reports Rhorer draws a salary of $191,168 per year as Deputy Fairfax County Executive as well as a concurrent pension from the Fairfax County police of $173000 per year.

Occupation by force

According to the most recent U.S. Census figures, nearly one in five Fairfax residents (17.5 percent) is of Asian descent while Hispanics make up nearly 16 percent of Fairfax’s overall population. Those numbers drop considerably when applied to the Fairfax County Police Department, where only 4.3 percent of officers are Asian and 4.1 percent Hispanic. White officers make up 84 percent of Fairfax County’s 1,360-member police department, significantly higher than the county’s general population (54 percent white). Almost 90% of the force lives outside the county.