Edwin Eugene Gelletly v. Elana H. Gelletly ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
EDWIN EUGENE GELLETLY
v. Record No. 1127-95-2 MEMORANDUM OPINION *
PER CURIAM
ELANA H. GELLETLY JANUARY 23, 1996
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge
(Thomas F. Coates, III; Susan L. Wright; Coates &
Davenport, on briefs), for appellant.
(Alfred L. Shilling, on brief), for appellee.
Edwin E. Gelletly (husband) appeals the decision of the
circuit court ordering him to pay spousal support to Elana
Gelletly (wife) and deciding other issues. Husband raises two
issues on appeal: (1) whether the trial court abused its
discretion by refusing to terminate spousal support; and (2)
whether the trial court abused its discretion by imputing income
to husband. 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. Rule 5A:27.
Failure to Terminate Spousal Support
Code § 20-109 provides that "[u]pon petition of either party
the court may increase, decrease or terminate spousal support and
maintenance that may thereafter accrue . . . as the circumstances
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
may make proper." "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 v. Schoenwetter, 8 Va.
App. 601, 605, 383 S.E.2d 28, 30 (1989). "[T]he 'circumstances'
which make 'proper' an increase, reduction or cessation of
spousal support under Code § 20-109 are financial and economic
ones." Hollowell v. Hollowell, 6 Va. App. 417, 419, 369 S.E.2d
451, 452-53 (1988).
Husband contends that wife had not demonstrated a need for
continued spousal support and had failed to seek suitable
full-time employment. The trial court found that wife had a
reduced need for support since the last hearing and reduced the
support payments by $200 a month. Wife was working approximately
seventeen and a half hours a week, and presented evidence that
she had sought full-time employment. Wife's ability to seek
greater employment continued to be hampered by discomfort from
two ruptured discs. Wife had also suffered two accidents and had
broken her leg, in the intervening period.
As credible evidence supports the trial court's deter-
mination that wife continued to need spousal support, we cannot
say that the court abused its discretion in refusing to terminate
support.
Imputation of Income
Husband contends that he was unable to pay any support, that
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he had attempted to find suitable work, and that the trial court
erred by imputing income to him. The trial court found that
husband's decision to leave his full-time employment with its
salary of $85,000 was a significant change in circumstances since
the last hearing. However, the court also found that husband was
responsible for the change because "[h]e jumped from a place of
safety into a dry hole." The court imputed income to husband at
his former salary level. The trial court ruled that the changed
circumstances warranted a $200 a month decrease in, but not the
elimination of, husband's spousal support obligation.
Husband took a cut in pay when he left his former
employment. Subsequently, husband lost his position with his new
employer. Husband testified that he had sought employment, but
had not worked since losing his job in December 1994. Husband
admitted he had not looked for positions paying in the $25,000
range because
when somebody looks at my resume, and they
say, well, this is [sic] guy has owned four
or five companies. He is an $85,000 a year
guy. He does this, that and the other, how
long is he really going to work for me. If I
go in here and teach him my job for $25,000,
and, you know, when he gets a $40,000 job, he
is walking, and we have wasted a lot [of]
time. Then when he gets a $40,000 job, he
will find a $50,000 job, and he is walking
. . . .
The party who incurs a voluntary reduction of income, even
if done in good faith, also bears the associated risks.
Antonelli v. Antonelli, 242 Va. 152, 155-56, 409 S.E.2d 117, 119-
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20 (1991). That party cannot then assert lack of income as
grounds for eliminating support. Id. Although husband had no
income, he voluntarily left a job he held for seven years, with
its high salary, for a job with a lower salary and greater risks.
The fact that the new job fell short of his expectations did not
relieve husband of his pre-existing spousal support obligations.
Therefore, we find the trial court's decision is supported by
credible evidence and is not an abuse of discretion.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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