Stephen B. Lane v. Robin B. Lane ( 2009 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Alston and Senior Judge Coleman
STEPHEN B. LANE
MEMORANDUM OPINION *
v. Record No. 0951-09-4 PER CURIAM
SEPTEMBER 15, 2009
ROBIN B. LANE
FROM THE CIRCUIT COURT OF CULPEPER COUNTY
John G. Berry, Judge
(Elizabeth P. Coughter; Michie Hamlett Lowry Rasmussen & Tweel
PLLC, on briefs), for appellant.
(Lawrence D. Diehl; Brandy M. Poss; Barnes & Diehl, P.C., on
brief), for appellee.
Stephen B. Lane (husband) appeals an order denying his motion to modify spousal support.
Husband argues that the trial court erred by (1) failing to modify spousal support because husband,
through no fault of his own, experienced a significant reduction in income; and (2) finding that
Robin B. Lane (wife) made a good faith effort to find employment. Upon reviewing the record and
briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily
affirm the decision of the trial court. See Rule 5A:27.
BACKGROUND
Husband and wife married in 1973 and separated in 1997. On June 2, 1999, the parties
entered a separation agreement (the Agreement), which provided that husband would pay $6,000
per month to wife in spousal support. The Agreement further stated:
Robin agrees to make a good faith effort to obtain a job so that she
may become more financially self-sufficient.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
* * * * * * *
If Steve’s income is reduced substantially through no voluntary act
on his part, the amount of spousal support to be paid shall be
subject to renegotiation and modification within six weeks of such
a reduction. If Steve and Robin are unable to agree as to the
amount of support to be paid, then they agree to return to
mediation in an attempt to resolve these issues before taking any
legal action.
The Agreement was incorporated into the final decree of divorce, which was entered on August 10,
1999.
In 1999, husband was a CEO for a company called Omni Services. He earned
approximately $517,427 in 1999. In 2002, another company, Cintas, purchased Omni Services.
Husband received $14,800,000 from the sale.1 Beginning in 2003, husband purchased, improved,
and sold high-end residential real estate projects and invested in the stock market. In 2007 and
continuing until the hearing in 2008, husband’s income decreased due to changes in the economy
and the real estate market. In 2008, husband lost 32% of the value of his investment account, and
he had not received any income from the sale of real estate. Husband had to draw down the
principal in his investment account to meet his expenses.
Since the divorce, wife entered the real estate business. In 2003, wife was diagnosed with
cancer. As a result of her cancer diagnosis and the change in the real estate market, wife was unable
to sustain a career in real estate.
Husband sought to modify his spousal support due to a change in his income. The trial
court ruled that husband did not voluntarily reduce his income and that there was a material change
of circumstances. However, the trial court held that the change in circumstances did not warrant a
modification of spousal support. The trial court also held that wife made a good faith effort to
obtain a job to become more financially self-sufficient.
1
The amount he received after taxes was $11,200,000.
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The trial court denied husband’s motion to modify the spousal support award, and husband
appealed.
ANALYSIS
Modification of Spousal Support
Husband argues that the trial court erred in denying his motion to modify spousal support.
He contends that his reduction in income was sufficient to warrant a reduction in spousal support.
“We will not disturb the trial court’s decision where it is based on an ore tenus hearing,
unless it is ‘plainly wrong or without evidence in the record to support it.’” Furr v. Furr, 13
Va. App. 479, 481, 413 S.E.2d 72, 73 (1992) (quoting Schoenwetter v. Schoenwetter, 8 Va. App.
601, 605, 383 S.E.2d 28, 30 (1989)).
“Code § 20-109(C) expressly limits the court’s authority to modify an agreed upon
spousal support award according to the terms of a stipulation or contract signed by the parties.”
Blackburn v. Michael, 30 Va. App. 95, 100, 515 S.E.2d 780, 783 (1999). The parties’
Agreement allowed for a modification of spousal support when husband’s income decreased
through no fault of his own. The trial court determined that husband’s income decreased because
of changes in the economy and the real estate market, and not through any fault of his own.
Therefore, the trial court had the authority to modify spousal support.
“The moving party in a petition for modification of support is required to prove both a
material change in circumstances and that this change warrants a modification of support.”
Schoenwetter, 8 Va. App. at 605, 383 S.E.2d at 30 (citation omitted). The material change in
circumstances “must bear upon the financial needs of the dependent spouse or the ability of the
supporting spouse to pay.” Hollowell v. Hollowell, 6 Va. App. 417, 419, 369 S.E.2d 451, 452
(1988).
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Here, the trial court held that husband’s change in income was a material change of
circumstances. Since the divorce, husband sold his company and invested the proceeds in the
stock market and in real estate. The trial court specifically found that husband’s investment
choices at the time were “a very good decision.” However, the stock market and real estate
market declined in 2007 and 2008, and husband’s investments and income decreased.
Having held that there was a material change of circumstances, the trial court next looked
to whether the change in circumstances warranted a reduction in spousal support. Among other
factors, the trial court examined the parties’ financial resources, husband’s investment choices,
and the parties’ property interests. Contrary to husband’s assertions, the trial court specifically
held that it was not ordering husband to invade the principal of his assets to meet his support
obligation. The trial court acknowledged that husband made what appeared to be prudent
investment choices by investing in the stock market; however, husband also had to accept the
risk of such an investment. The trial court also noted that husband had a much greater earning
capacity than wife because he made “good business decisions.” The trial court also examined
the parties’ standard of living. Husband’s standard of living was better now than it was at the
time of the divorce, whereas wife’s standard of living had declined. The trial court also
considered the parties’ health. Husband was in good health, but since the divorce, wife had been
diagnosed with cancer. The trial court concluded that wife had a greater need for support now
than she did at the time of the divorce, and husband did not have a diminished ability to pay
support, despite the downturn in the economy.
Not every material change of circumstance justifies a modification of spousal support.
See Blackburn, 30 Va. App. at 103, 515 S.E.2d at 784. The evidence supports the trial court’s
ruling that husband’s change in income did not warrant a reduction in spousal support.
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Wife’s good faith effort to find a job
Husband argues that the trial court erred in finding that wife made a good faith effort to
obtain a job so that she could become more financially self-sufficient.
“It is well established that the trier of fact ascertains a witness’ credibility, determines the
weight to be given to their testimony, and has the discretion to accept or reject any of the
witness’ testimony.” Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en
banc). Here, the trial court accepted wife’s testimony regarding her efforts to become financially
self-sufficient.
Husband argues that despite wife’s cancer diagnosis, wife had not made a good faith
effort to find a job. Wife was diagnosed with cancer in 2003 and underwent treatment until
2007. Prior to her diagnosis, wife was a real estate agent and, like husband, was “a victim of the
same downturn in the market.” The trial court found that wife was becoming self-sufficient as a
real estate agent prior to her cancer diagnosis and change in the real estate market.
The evidence supports the trial court’s ruling that wife made a good faith effort to obtain
employment.
Attorney’s fees
Both parties have requested an award of attorney’s fees and costs incurred on appeal. See
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). On consideration
of the record before us, we decline to award either party attorney’s fees and costs on appeal.
CONCLUSION
For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.
Affirmed.
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