Richard N. Smull v. Karen W. Smull ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia
RICHARD N. SMULL
MEMORANDUM OPINION * BY
v. Record No. 1308-98-4 JUDGE JERE M. H. WILLIS, JR.
JULY 20, 1999
KAREN W. SMULL
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
David L. Duff (David L. Duff, P.C., on
brief), for appellant.
Stefan C. Long (Stefan C. Long, P.C., on
brief), for appellee.
On appeal from the denial of his motion to reduce his
spousal support obligation, Richard N. Smull contends that the
trial court erred (1) in requiring him to prove that no jobs
were available in his career field, and (2) in awarding to Karen
W. Smull all of her costs and attorney's fees. We affirm the
judgment of the trial court.
I. MOTION FOR SPOUSAL SUPPORT REDUCTION
Richard and Karen Smull were divorced on March 7, 1988. On
March 12, 1998, Richard moved for a reduction in his spousal
support obligation, asserting that he had experienced a material
change in circumstances warranting a reduction in the support
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
required by the divorce decree. The trial court denied the
reduction and denied Richard's motion for reconsideration.
A party seeking to modify spousal support is "required to
prove both a material change in circumstances and that this
change warrants a modification of support." Schoenwetter v.
Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989).
As we further noted in Hammers [v. Hammers,
216 Va. 30, 216 S.E.2d 20 (1975)], a party
seeking a reduction in support payments has
additional burdens: "[H]e must make a full
and clear disclosure relating to his ability
to pay. He must also show that his lack of
ability to pay is not due to his own
voluntary act or because of his neglect."
Edwards v. Lowery, 232 Va. 110, 112-13, 348 S.E.2d 259, 260
(1986) (citation omitted).
"When a trial court hears evidence ore tenus, its findings
are entitled to the same weight of a jury verdict, and will not
be disturbed on appeal unless plainly wrong or without evidence
to support them." Floyd v. Floyd, 1 Va. App. 42, 45, 333 S.E.2d
364, 366 (1985).
After retiring from the Air Force just before the divorce,
Richard found employment at Systems Planning Corporation
("SPC"), where his primary duty was to act as a liaison to the
Taiwan Economic Relations Office. After a downturn in the Asian
economy, the Taiwanese Office modified its contract with SPC
from a retainer to an "as needed" basis. As a result, Richard's
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hours at SPC, and his income from that organization, were
greatly reduced.
Around the same time, Richard began working as a wine
wholesaler in a business managed by his current wife. When his
hours at SPC were reduced, he began spending more time at the
wholesale wine venture, which produced much less income. The
trial court found that Richard had made no effort to secure
employment other than by SPC in his professional field and that
his decision to devote his time to the lower paying wine
wholesaling enterprise was voluntary. Thus, his reduction in
income did not require a corresponding reduction in his spousal
support obligation. See Dept. of Social Services v. Ewing, 22
Va. App. 466, 470-73, 470 S.E.2d 608, 610-13 (1996).
Richard argues that the trial court erroneously required
him to prove that no jobs were available within his professional
field. The record does not support this contention. At the
hearing, Richard produced no evidence that he had sought work in
his field. He produced only the testimony of his supervisor at
SPC, who stated that no more work was available for Richard at
that firm. Richard made no attempt to find work in his
professional field beyond a single employer, SPC. The trial
court did not err in requiring proof of a greater effort.
II. COSTS AND FEES
An award of attorney's fees and costs is a matter submitted
to the sound discretion of the trial court and will be overruled
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on appeal only for an abuse of discretion. See Graves v.
Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). "We
have said that 'the key to a proper award of counsel fees . . .
[is] reasonableness under all of the circumstances revealed by
the record.'" Westbrook v. Westbrook, 5 Va. App. 446, 458, 364
S.E.2d 523, 530 (1988).
Richard initiated these proceedings by his motion to reduce
spousal support. The trial court denied that motion. The trial
court took into account the relative financial circumstances of
the parties and determined that Richard should pay Karen's fees
and costs. Sufficient evidence in the record supports this
decision.
The judgment of the trial court is affirmed.
Affirmed.
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