William Howell Grover, II v. Sandra Hackley Grover ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Duff ∗
WILLIAM HOWELL GROVER, II
MEMORANDUM OPINION ∗∗
v. Record No. 1544-01-3 PER CURIAM
NOVEMBER 6, 2001
SANDRA HACKLEY GROVER
FROM THE CIRCUIT COURT OF BEDFORD COUNTY
James W. Updike, Jr., Judge
(Charles O. Cornelison; Copenhaver, Ellett,
Cornelison & Derrico, on brief), for
appellant.
(Harwell M. Darby, Jr.; Glenn, Feldmann,
Darby & Goodlatte, on brief), for appellee.
William Howell Grover, II appeals the decision of the circuit
court refusing to modify the amount of his monthly support
payments to his former wife, Sandra Hackley Grover. On appeal,
husband argues the trial court erred in finding 1) there had been
no material change in circumstances since the original support
award, and 2) wife was not voluntarily underemployed. Upon
reviewing the record and briefs of the parties, we conclude that
∗
Retired Judge Charles H. Duff took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
∗∗
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
this appeal is without merit. Accordingly, we summarily affirm
the decision of the trial court. See Rule 5A:27.
Procedural Background
On appeal, we view the evidence and all reasonable
inferences in the light most favorable to appellee as the party
prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990). The parties were married on February
9, 1974. In November, 1996, the trial court awarded wife a
fault-based divorce on the ground of adultery on the part of
husband. The court ordered husband to pay wife $4,000 in monthly
spousal support plus an additional amount for child support. On
September 27, 1999, husband filed a petition to reinstate the case
and reduce his spousal support payments. Following an evidentiary
hearing, the court found that wife's circumstances had not changed
and that she was not voluntarily underemployed and denied the
petition.
Analysis
I.
"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);
Mansfield v. Taylor, 24 Va. App. 108, 114,
480 S.E.2d 752, 755 (1997). The material
change "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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Street v. Street, 25 Va. App. 380, 386, 488 S.E.2d 665, 668
(1997).
Husband argues wife's circumstances have materially changed
since the date of the final decree of divorce. In its letter
opinion, however, the trial court noted that it had heard ample
evidence of the parties' incomes, assets, and employment
situations when it entered the final decree of divorce. The
court specifically noted that at the time it had considered the
issue of whether wife was voluntarily underemployed. The court
also noted that husband was relieved of his child support
obligations at the time his son reached maturity, freeing funds
that could be used to make his spousal support payments. The
court explained that the fact that the child would leave home
was well anticipated at the time of the final decree of divorce
and did not constitute a material change.
In its letter opinion, the court meticulously reiterated
the findings regarding spousal support and the Code
§ 20-107.1(E) factors it considered. Wife's employment status
had not changed since the time of the final decree of divorce
and did not constitute a material change in circumstances. The
evidence supports the court's ruling that husband failed to
present any evidence of a substantial change in circumstances
from the time of the final decree of divorce.
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II.
In setting or modifying spousal support
or child support, a court may impute income
to a party voluntarily unemployed or
underemployed. See Calvert v. Calvert, 18
Va. App. 781, 784, 447 S.E.2d 875, 876
(1994); Stubblebine v. Stubblebine, 22 Va.
App. 703, 710, 473 S.E.2d 72, 75 (1996) (en
banc). Whether a person is voluntarily
unemployed or underemployed is a factual
determination. In evaluating a request to
impute income, the trial court must
"consider the [parties'] earning capacity,
financial resources, education and training,
ability to secure such education and
training, and other factors relevant to the
equities of the parents and the children."
Niemiec v. Commonwealth, 27 Va. App. 446,
451, 499 S.E.2d 576, 579 (1998).
Furthermore, the party moving the court to
impute income has the burden of proving that
the other party is voluntarily foregoing
more gainful employment. See id.Blackburn v. Michael, 30 Va. App. 95, 102, 515 S.E.2d 780,
783-84 (1999). "The decision to impute income is within the
sound discretion of the trial court and its refusal to impute
income will not be reversed unless plainly wrong or unsupported
by the evidence." Id.The court found that evidence presented by husband failed
to establish that wife could readily find employment in the
health care field in the Bedford, Virginia area. The court
specifically noted she had not worked as a medical technician
for over twenty years. The court also found husband's evidence
unreliable because it was based on markets other than the
Bedford area, and because it included opinions based almost
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solely on advertisements and internet research. The court held
that husband had failed to prove by a preponderance of the
evidence that wife could currently obtain employment as a
medical technician within a reasonable distance from Bedford,
Virginia. The trial court's determination that wife was not
voluntarily underemployed was not plainly wrong or unsupported
by the evidence. Accordingly, we summarily affirm the decision
of the trial court. See Rule 5A:27.
Affirmed.
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