In Weidlein, the parties signed an agreement providing for spousal support after divorce. The agreement said wife would receive $2,500 a month until she cohabited with a man for a week. (Weidlein v. Weidlein, Va. Ct. App., Record No. 2145-14-4, October 6, 2015).

      Wife cohabited with a man for more than a week, and ex-husband stopped paying support.

      Much later, when $400,000 of back support would have been owed if support continued to be owed at all, the matter came before Judge Lorraine Nordlund of Fairfax County Circuit Court. Judge Nordlund ruled the support termination in this case was not self-executing, like attainment of a certain age, because the parties had to return to court to determine if the triggering condition occurred. The trial court found that the requisite cohabitation had occurred, that back support was owed, and that the support obligation terminated as of the date of the hearing.

      On appeal, all parties agreed that support ended no later than the hearing date. The issue was whether the unpaid back alimony of $400,000.00 was owed or not.

    With all due respect for the Court of Appeals, I think that Judge Nordlund and dissenting Judge Mary Grace O’Brien of the Court of Appeals of Virginia understood the facts and the law exactly right. I believe the trial judge and the Court of Appeals dissent had the more persuasive argument for the following reasons:

1. Unlike Schrödinger's cat, famously alive and dead at the same time; spousal support arrearages cannot not be simultaneously non-modifiable and not owed at all – depending on the prevailing party at a later date.

          It appears to me that the majority and dissent would necessarily have to agree that the original spousal support order (the “original order”) was valid, enforceable and unmodified up until the moment the trial court entered its order determining that the cohabitation contingency had been satisfied (the “modifying order”).

It is at the moment of entry of the modifying order that the appellate opinions diverge:

          (A) According to the majority, the modifying order “enforces the pre-existing award according to its plain terms”.

          (B) According to the dissent, the modifying order changes a pre-existing award according to its plain terms in violation of VA Code Sec. 20-112. [Section 20-112 says “[N]o support order may be retroactively modified …”].

[Remember, a modifying order is required because the cohabitation contingency is not self-executing; satisfaction of the contingency can only be established by a judicial determination.]

      Here is why the majority view, in my opinion, establishes a logical impossibility:

      Assume hypothetically that on the date of the hearing before Judge Nordlund, wife established spousal support arrears of $400,000.00 were due and unpaid; and husband failed to prove cohabitation had taken place. The trial court would under those facts unquestionably enter judgment in favor of wife and against husband for the arrears, based upon the original order. In other words, arrears would have been found due and owing pursuant to a support order that was never modified.

      The rationale of the Court of Appeals calls to mind a physics conundrum involving “quantum entanglement”. In the renowned paradox, Schrödinger's cat is in a box, and is alive and dead simultaneously. The cat does not become one or the other until the moment someone looks in the box. In the alimony context, the Court of Appeals has treated spousal support arrears as if they were simultaneously owed and not owed. The court has established a rule that support absolutely owed in the past may be effectively vaporized depending on facts in the future.

2. Statutes are not construed in harmony by making one re-write the other.

      The Weidlein decision does not harmonize Code §§ 20-109(A) and 20-109(C) as the Court of Appeals asserts; it places them in conflict.

      Here is the precise language at issue in Code § 20-109(A):

Upon petition of either party the court may increase, decrease, or terminate the amount or duration of any spousal support and maintenance that may thereafter accrue, whether previously or hereafter awarded, as the circumstances may make proper.

This is the default spousal support rule. It applies unless a statute requires something different.

      Here is the relevant language in Code § 20-109(C):

In suits for divorce, … if a stipulation or contract signed by the party to whom such relief might otherwise be awarded is filed before entry of a final decree, no decree or order directing the payment of support and maintenance for the spouse, suit money, or counsel fee or establishing or imposing any other condition or consideration, monetary or nonmonetary, shall be entered except in accordance with that stipulation or contract.

      In other words, § 20-109(A) says spousal support is modifiable if a party petitions for modification, while § 20-109(C) prohibits the court from awarding spousal support at variance with a stipulation or contract entered into by the parties.

      The Court of Appeals decision states that § 20-109(C) is a statute modifying 20-109(A). I respectfully disagree. All that § 20-109(C) does is require the court to implement private contracts. I believe § 20-109(C) was ever intended to grant individuals a license to re-write history.

      An appropriate example of a statute modifying § 20-109(A) is § 20-110, which terminates support upon remarriage of the support recipient. Section 20-110 places a limit on the duration of support established by § 20-109(A) by imposing a self-executing terminating clause. Code § 20-109(D) also sets a statutory limit on support, based on death or remarriage. The support terminations identified in these statutes are self-executing modifications of spousal support, in that they do not require a court hearing.

Code Section 20-109(C), by comparison, does not modify 20-109(A) at all.

3. An established rule of statutory construction is that – if possible — all words in a statute should be accorded meaning. Yet, the Court of Appeals ignores the phrase “that may thereafter accrue” in VA Code § 20-109(A).

      Code § 20-109(A) says in pertinent part: “[T]he court may increase, decrease, or terminate the amount or duration of any spousal support and maintenance that may thereafter accrue …”

      When the Court of Appeals permits a contingency to trigger a retroactive reduction in spousal support, as happened in Weidlein, then the court is decreasing or terminating the amount of support that accrued in the past. This can only happen if the court fails to abide by the phrase “that may thereafter accrue”. The “thereafter” phrase is prospective, not retrospective.

      Furthermore, accepted rules of statutory construction include the Latin phrase, “Inclusio unius est exclusio alterius.” The inclusion of one thing conclusively excludes others of the same type. Applying that standard here, it may be said that specifically restricting a course of action to the future conclusively precludes the right to perform that same conduct to revise events that occurred in the past. Stated differently, if the legislature had intended to authorize courts to “increase, decrease, or terminate the amount or duration of … support” in the past, they would have said so. The fact that they restricted the power to the future means they excluded the past.

      I firmly believe that the Court of Appeals erred in sanctioning a reduction or termination of spousal support in the past based on Code § 20-109(A), especially if you consider that Code Section 20-112 says “[N]o support order may be retroactively modified …”

4. Conclusion

      The trial court correctly ruled, in my professional opinion, that the husband’s support obligation ended on the date of the trial court ruling and not at some earlier date when the cohabitation occurred.

      Before the three-judge panel of the Virginia Court of Appeals issued its ruling, the only way that a property right conferred by statute and actually delivered could be retroactively withdrawn was on jurisdictional, constitutional, or public policy grounds including fraud Apart from those exceptions, alimony actually paid was a vested property right. Not any more! According to Weidlein, even spousal support properly received and spent by the recipient can be divested in the future. Spousal support recipients were placed in the precarious position of potentially having to disgorge money, while support payors had diminished incentive to promptly alert the court when they believed a terminating condition has occurred.

      Hopefully, Weidlein will be reversed in accordance with Virginia case law, established principals of statutory construction, and the due process clause of the U.S. Constitution.


December 11, 2015

After the Court of Appeals re-heard Weidlein en banc, and before the opinion, the parties settled. Apparently, they realized at oral argument that the three-judge panel’s ruling was likely to be reversed – and that the trial judge was going to be vindicated. Unfortunately, the settlement deprives Judge Nordlund of a formal affirmation by the appellate court of her well-written opinion.