David H. Dailey

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.

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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.