Driscoll v. Hunter (VA Ct. App., October 25, 2011) is a case of wealthy male hubris. Driscoll’s divorce incorporated an agreement setting spousal support at $2,100 a month. Later, Driscoll retired with a net worth of $3.5M and moved to reduce his support obligation.

  1. Did the support modification proceeding require proof of a material change of circumstances? The parties’ original agreement said no such change had to be established if support were “set” by a court. That contract was incorporated by reference in a “pendente lite” agreement, which itself was incorporated by reference in the final decree. Driscoll argued no change needed to be shown by him based on the original waiver. [Logically, this argument sounds like a lose-lose proposition: The absence of change would leave support exactly the same. What was Driscoll thinking?]

  2. The trial and appellate courts both found that material change did have to be shown. The original waiver had been superseded by the support set forth in the final decree. This ruling appears correct, since if Driscoll disliked the original support amount he could have challenged it in the divorce proceeding. Moreover, the parties’ own language, “spousal support to be set,” clearly described an initial determination; it did not contemplate a permanent waiver of the “changed circumstances” standard.

  3. The trial court found no material changed circumstances that impacted ability to pay. The appellate court agreed, pointing out that it made no difference whether or not the retirement was a material change; for the reason that Driscoll had plenty of unearned income from investments to pay support even without a job.

  4. Interestingly, the Court of Appeals states in dicta that having to switch to paying support from principal is not a material change for a payor. Having to tap principal only matters for a support recipient, and then only in an initial support determination.

  5. After divorce, wife worked briefly and voluntarily quit. What about her voluntary impoverishment, asks Driscoll? It does not matter, says this opinion: Support modification is a three-step process, and the trial court never needed to reach the third step.

  The three steps in spousal support modification are (1) Was there a material change of circumstances; (2) Did it substantively affect need or ability to pay; and (3) What is the weight to be accorded each of the thirteen statutory factors set forth at VA Code Section 20-107.1(E)? Driscoll was unable to make the case for step two. He had so much income available – or potentially available – from his assets that step three never arose.

  6. The Court of Appeals cut the trial judge a break. The Circuit Court judge had taken into consideration Driscoll’s potential receipt of $200,000 for his medical practice, though the amount and timing were undetermined. This was deemed harmless error — if it was an error. Driscoll had so much cash flow that supporting his former spouse was not going to present a problem whether he had that particular asset in hand or not.