Michael E. Vanderford v. Tommie Adelia Vanderford ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
MICHAEL E. VANDERFORD
MEMORANDUM OPINION *
v. Record No. 1314-98-4 PER CURIAM
DECEMBER 8, 1998
TOMMIE ADELIA VANDERFORD
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David T. Stitt, Judge
(Thomas F. Koerner, Jr., on brief), for
appellant.
(Richard P. Buzan, on brief), for appellee.
Michael E. Vanderford (husband) appeals the decision of the
circuit court denying his motion to eliminate spousal support
paid to Tommie A. Vanderford (wife). Husband contends that the
trial court erred by (1) failing to terminate spousal support
where the amount wife received as her share of husband's pension
exceeded the amount she received as spousal support; and (2)
adopting a percentage reduction formula to determine wife's
spousal support. 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.
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
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Failure to Eliminate Spousal Support
"When a trial court hears evidence ore tenus, its findings
are entitled to the 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). As the party seeking to modify spousal support,
husband was required to prove that the material change in
circumstances warranted a modification of support. See
Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28,
30 (1989). The parties agreed that there had been a material
change in circumstances since entry of the initial spousal
support award, and agreed that husband was not underemployed.
The trial court expressly rejected husband's contention that
the payout from his pension constituted a material change in
circumstances. Rather, the court found that the payout "was
contemplated on the face of the property settlement agreement."
The trial court also found no evidence to support husband's
testimony that the parties agreed that spousal support would
cease once the payout began. As noted by the trial court, "if
that had, in fact, been the agreement of the parties, that the
spousal support would stop when the pension kicked in, then the
property settlement agreement should have said that. It
doesn't."
Under Code § 20-107.1, the trial court is required to
consider the parties' income when setting the amount of spousal
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support. Both parties presented evidence of their current
expenses and income. Wife's gross monthly income from her
employment was $1,274, and her share of the monthly pension
benefits was $1,894. Wife's monthly listed expenses totaled
approximately $3,011. The trial court noted that the expenses of
both parties were reasonable. The court found credible wife's
explanations for her increased expenses "particularly because a
substantial portion of those increases were in the health expense
field, and also things related to her personal situation." Wife
indicated that she continued to incur additional debt each month
when she was receiving $1,700 in monthly spousal support.
Husband's monthly income totaled almost $5,250, with expenses of
$3,160, excluding any spousal support payments. Thus, husband
was in a better financial position than wife. We find no error
in the trial court's decision not to eliminate wife's spousal
support.
Percentage Reduction in Support
Husband also contends that the trial court erred by adopting
a mathematic formula as the basis for reducing wife's spousal
support. We find no indication that husband raised this issue
below. The Court of Appeals will not consider an argument on
appeal which was not presented to the trial court. See Jacques
v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)
(citing Rule 5A:18).
Moreover, husband concedes that the trial court considered
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the statutory factors before making its decision. The trial
court's recitation of and consideration of the parties' income,
expenses, and other statutory factors demonstrates that the trial
court did not merely apply a formula to determine the amount of
spousal support.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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