THE ALIMONY GAMBLE: RETRO CITY

Take heart ye traditionalists all! The old-fashioned divorce law we all once knew is far from dead. Its quaint Victorian terms and tones still reappear at the Court of Appeals from time to time, albeit selectively.

Most Virginia lawyers think of Gamble v. Gamble, 14 Va. App. 558, 421 S.E. 2d 635 (1992) as a pension case -- and indeed Gamble revolutionized the Virginia law of pension division, by allowing mandatory "present offset" awards in defiance of what everyone considered the clearest possible expression of legislative intent to the contrary. But those who go on to read the alimony sections of the Gamble opinion will find that the Court of Appeals in this Charlottesville case made some rather amazing pronouncements in the law of alimony as well. Every practitioner who expects to argue a spousal support issue any time soon should carefully examine the language in Section III of the Gamble opinion concerning the criteria for awarding maintenance and determining its amount.

Those who had thought that such pro-payee cases as Barnes had fully renounced traditional alimony thinking despite the General Assembly's express declaration that it wanted to save at least some vestige of the traditional criteria in adultery cases should think again. It appears in Gamble that the Court of Appeals is quite willing to revert to such traditional concepts in the case of adultery by a payor. Practitioners who have become quite used to sanctimonious pronouncements in recent payee-adultery cases that alimony awards, denials and amounts are not meant to punish will see some language in Gamble that appears astoundingly retro for a proudly value-neutral society. The majority opinion treats us to some equally sanctimonious pronouncements that make alimony appear very much designed to punish adultery, if it is the payor husband who commits it.

And then take the matter of "the style to which she had become accustomed." For those who thought that this cliché, though found among the statutory criteria, went out with the black-and-white movies of the 1940s, Gamble will serve as a reminder that the concept is alive and well. A wronged wife is entitled to support at just that level, insofar as she needs it and the guilty husband can afford it. The majority opinion's emphasis on this criterion is what nostalgia lovers will find so delightfully old-fashioned.

Except for its extremely confusing discussion of spousal maintenance for purposes of paying mortgages on awarded property, the Gamble opinion's alimony observations take us back to the days when the grayest among us first began to practice "domestic relations law." Alimony can indeed be awarded for the purpose of punishing adultery -- so long as it is the payor who gets the punishment.

If there is any general rule to net out of the Gamble language and those cases such as Barnes which strongly imply that there will never, never be a case that allows alimony to be cut off for reasons of payee adultery, it is that adultery is going to be very expensive to payor spouses either way, whether as adulterer or as adultery victim. (Of course there is the coincidental factor that in both Barnes and Gamble the payee spouses were female. Now the challenge will be to see how consistently the Court of Appeals will adhere to its rule when somebody brings it, in this era of increasingly high-earning wives, a case involving an adulterous female payor.)

The majority begins by stating that "well established principles guide our resolution of the spousal support issue in this appeal," and that "where a claim for support is made by a party who has been held blameless for the marital breach, the law imposes upon the other party a duty, within the limits of his or her financial ability, to maintain the blameless party according to the station in life to which that party was accustomed during the marriage." The opinion does acknowledge that in fixing the amount, all the §20-107.1 factors must be reviewed, and the award must be fair under all the circumstances. Turning to the specific case at hand, the Court declares that "Mr. Gamble's adultery and desertion and Mrs. Gamble's blamelessness...readily and adequately support the chancellor's threshold determination" that wife was entitled to support. The Court of Appeals then focused on amount.

The trial judge correctly reviewed all nine statutory factors when determining amount, although apparently he is now deemed to have mishandled the first factor, obligations, needs and financial resources of the parties, since he left out rental income on the marital home as a financial resource of the wife, and counted as "needs" monthly mortgage payments she will be making to retire a mortgage debt that was taken into account under §20-107.3. Apparently, leaving out the rental income, though wrong, was not sufficient to trigger a reversal per se, but it was postponed and relegated to "one of several considerations in our review of the final award."

In doing all of this the Court of Appeals makes clear (well, sort of clear) that there is nothing unlawful about granting so much alimony to a blameless party that the guilty payor ends up with less net income monthly than the supported spouse. Though the Court refused to reverse on that ground, and excused itself from the task of reviewing cases on the point, it expressly did not "decide whether such a result is necessarily a fatal defect in the calculation of a spousal support award," and it relegated the issue to the "additional considerations in our review of the final award in this particular case" category.

While the court pointed out the fallacious double counting involved in treating the monthly mortgage payment as an alimony-determining supported-party obligation when the mortgage was already taken into account in equitable distribution, it also relegated that to the ever-growing "another consideration in our review" category. The cumulative effect of all these "other considerations" was in fact a remand on the issue of alimony amount, which resulted in an award of $450 less in the trial court the second time around.

On the mortgage-payment-compensation (or subsidy) issue, the majority does condemn as a clear abuse of discretion the decision to give the wife a "double dip," but because the appellate court was unable to determine whether the amount of the award would in fact had been the same if the trial judge had done it right, it reversed and remanded "for reconsideration in light of the views expressed herein."

In explaining the double-dip issue the Court of Appeals is bound to cause some major confusion with sentences like "This requirement, however, is not an authorization to fix a spousal support award to compensate a spouse further for marital property received pursuant to Code §20-107.3," where apparently it is referring to the recipient spouse, and should perhaps have put the word compensate in quotation marks to indicate an ironic use. However, interesting as the abstract discussion of 107.1 and 107.3 purposes may be, the alarming, and potentially very useful, declarations in the spousal support area are those designed to show the world what a strong pro-alimony policy Virginia has. Payor spouses can be made to pay for their adultery, even though payee spouses can't -- even in the face of the Legislature's express declaration that they should. The important message for counsel representing potential alimony recipients is that exploration of potential adultery facts against the supporting spouse should never be overlooked. If those who read the Barnes opinion, in conjunction with Aster v. Gross and similar equitable distribution cases, thought that it meant we are getting away from the world of subsidizing private detectives and perusing X-rated photographs, they should think again. Adultery is not irrelevant: it just depends on whose adultery it is.