Noah Schwartz, Jr. v. Amy Elizabeth Schwartz ( 2013 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Huff and Senior Judge Haley
UNPUBLISHED
NOAH SCHWARTZ, SR.
MEMORANDUM OPINION *
v. Record No. 1377-12-1 PER CURIAM
JANUARY 22, 2013
AMY ELIZABETH SCHWARTZ
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
David F. Pugh, Judge
(Noah Schwartz, pro se, on brief).
No brief for appellee.
Noah Schwartz, Sr., (husband) appeals the trial court’s decision awarding Amy Elizabeth
Schwartz (wife) monthly spousal support in the amount of $560. Husband argues that (1) the trial
court erred in finding a change in circumstances based upon wife’s testimony; (2) the trial court
erred in denying his motion to reconsider because he presented proof that wife had received food
stamps and sold plasma prior to the termination of spousal support by the juvenile and domestic
relations district court; (3) wife failed to show evidence of a change in financial circumstances;
(4) the trial court erred in making the support retroactive, thus eliminating the equitable distribution
debt; and (5) the trial court erred in awarding the amount of support because it was excessive.1
Upon review of the record and brief, we conclude 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, this opinion is not designated for publication.
1
On December 12, 2012, husband filed motion to expedite his appeal because he will be
deployed in January 2013. Husband’s motion is denied.
ISSUES 1 AND 3
In determining whether to modify an award of spousal support, “the moving party must
prove: 1) a material change in circumstances; and 2) the change warrants a modification.” Barrs v.
Barrs, 45 Va. App. 500, 507, 612 S.E.2d 227, 230 (2005). “The material change ‘must bear upon
the financial needs of the dependent spouse or the ability of the supporting spouse to pay.’”
Richardson v. Richardson, 30 Va. App. 341, 347, 516 S.E.2d 726, 729 (1999) (quoting Street v.
Street, 24 Va. App. 2, 9, 480 S.E.2d 112, 116 (1997)).
Code § 20-109 grants courts continuing jurisdiction to
modify awards where changed circumstances are demonstrated.
Thus, “[the] statutory scheme recognizes that comparative needs
and capacities change as circumstances change, that changes are
not fairly predictable, and that spousal support awards must be
determined in light of contemporary circumstances and . . .
redetermined [if necessary] in light of new circumstances.”
Blank v. Blank, 10 Va. App. 1, 4, 389 S.E.2d 723, 724 (1990) (quoting Jacobs v. Jacobs, 219 Va.
993, 995, 254 S.E.2d 56, 58 (1979)).
“A trial court has broad discretion in setting spousal support and its ‘determination “will not
be disturbed except for a clear abuse of discretion.”’” Brooks v. Brooks, 27 Va. App. 314, 317, 498
S.E.2d 461, 463 (1998) (quoting Dodge v. Dodge, 2 Va. App. 238, 246, 343 S.E.2d 363, 367
(1986)).
Husband and wife were divorced by a final decree on January 13, 2011. At a hearing on
April 10, 2012, the trial court determined there was a material change in circumstances since the
entry of a March 31, 2011 order terminating wife’s spousal support because wife was compelled to
sell plasma and to apply for food stamps. At a hearing on June 27, 2012, the trial court awarded
wife monthly spousal support in the amount of $560. At the hearing, wife testified that she did not
receive food stamps while receiving support and that she notified social services upon her
employment and receipt of support. She stated that she and husband took vacations, ate out, and
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had entertainment expenses during the marriage and that she has been unable to engage in any of
those activities since the divorce. Although wife’s income had increased since the prior support
order, wife submitted an income and expense statement showing a monthly shortfall of $280. The
trial court found that wife’s income and expense statement was a “bare bones” statement and it did
not include everything a family of three may need.
Paragraph 6 of the agreed statement of facts provides in pertinent part:
The documents produced showed that Amy Schwartz previously
had received food stamps and sold plasma (prior to entry of the
Order terminating spousal support). Amy Schwartz argued that the
food stamp receipt was prior to receiving support initially from
Noah Schwartz and that she had sold plasma only to have extra
money for the holidays (period of sale October 2010 – January
2011) and again when spousal support was terminated on March
31, 2011.
Based upon a review of the record, the trial court did not abuse its discretion in determining
there was a change of circumstances based upon wife’s testimony and in awarding wife monthly
spousal support in the amount of $560.
ISSUES 2, 4, AND 5
Rule 5A:20(e) requires that the opening brief contain argument, including principles of law
and authorities, relating to the assignment of error. “Statements unsupported by argument,
authority, or citations to the record do not merit appellate consideration. We will not search the
record for errors in order to interpret appellant’s contention and correct deficiencies in a brief.”
Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992).
Husband’s opening brief failed to include any argument or principles of law concerning the
trial court’s denial of his motion to reconsider, the trial court’s decision to make the spousal support
award retroactive, and whether the trial court’s award of spousal support was excessive. Husband’s
failure to advance any argument or to cite any legal authority in support of these assignments of
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error is so significant that he has waived his right to have them reviewed by this Court. Fadness v.
Fadness, 52 Va. App. 833, 850, 667 S.E.2d 857, 866 (2008).
Based upon the foregoing, the trial court’s award of monthly spousal support to wife in the
amount of $560 is affirmed.
Affirmed.
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