Milam v. Milam [unpublished], Record No. 0837-12-4, (Va. App., April 30, 2013), is a 28-paged opinion in which a Manassas solo law practitioner claims thirty-eight errors by the trial court.  The attorney, Kirk T. Milam, (“Husband”), fails to provide principles of law or authorities regarding thirteen of his arguments, and loses those outright.
       On the remaining twenty-five issues, Husband wins relatively little:  He receives back his separately-owned 2004 BMW improperly classified as marital, and scores a few inconsequential technical upsets requiring Jonathan C. Thacher, the judge designate in Rappahannock County, to add words to the final order. 
       If the result of your appeal is for the trial court to calculate and announce presumptive guideline child support before awarding the same child support as before; or the consequence of the appeal is an additional sentence in the final order declaring that the court considered all statutory factors before it makes the identical award; then the appeal hardly seems worthwhile.
       In his divorce, Husband refused to disclose the tax arrears on his income as sole breadwinner.  He controlled the finances, spent money on gifts and vacations with paramours, and predictably was assessed the entirety of the unspecified tax obligation.  Husband also obtained court permission for a custody evaluation conditioned on his pre-payment, and then declined to pay the evaluator.
       Husband was, according to Judge Thacher, “obstreperous, uncooperative and unwilling to disclose his earnings and income,” resulting in awards against him of $4,000 a month in alimony and child support, and $82,000 as wife’s attorney fees.  Since he never disclosed his income, we cannot measure how well he did representing himself.  Since he appears to have lost every argument in the trial court and nearly every issue on appeal except the automobile, one may speculate that even being a lawyer does not always help.
       The Court of Appeals sustained the spousal support award with no evidence of husband’s income, citing Andrews v. Creacey, 56 Va. App. 606, 696 S.E.2d 218 (2010); and Fadness v. Fadness, 52 Va. App. 833, 846, 667 S.E.2d 857, 865 (2008).  However, neither of those cases seems to support the proposition that spousal support is justified based upon need alone.  In Andrews, wife lost her support bid when she failed to produce evidence of her finances.  Fadness declares that a wife’s testimony and expense sheet are sufficient to establish her need; but states that on page 864 of the opinion — not page 865; and does not appear to claim that wife’s evidence alone is sufficient basis for awarding her support.
       A generally recognized principal of family law is that spousal support requires proof of both need and ability to pay.  A support award lacking record evidence of ability to pay, or at least an imputation of income for the payor, may be clearly erroneous.  Though this blogger has not researched authority supporting the general rule, it is his considered opinion that a support appeal premised on proof of need alone may founder if it has no better citations that Andrews and Fadness.[1]



[1] According to the appellate court in Milam, “[T]he trial court noted that husband was an attorney with an active law practice, and concluded that sufficient evidence demonstrated that husband “ha[d] in the past and may in the future earn gross incomes in any given year in excess of $100,000.”  If the trial court imputation of income plus evidence of wife’s finances — rather than wife’s need alone — constituted the basis for affirmance of the support award, this writer believes the Court of Appeals might have said so more clearly.