Frank S. Mullin, III v. Shirley N. Mullin ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
FRANK S. MULLIN, III
MEMORANDUM OPINION *
v. Record No. 2731-95-4 PER CURIAM
JULY 9, 1996
SHIRLEY N. MULLIN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jack B. Stevens, Judge
(Laurence J. Tracy, on brief), for appellant.
(Marcia M. Maddox; Heather A. Cooper, on
brief), for appellee.
Frank S. Mullin, III, (husband) appeals the decision of the
circuit court denying his motion to reduce spousal support paid
to Shirley N. Mullin (wife). On appeal, husband contends that
(1) the trial court abused its discretion in failing to find that
there was a material change in circumstances warranting a
reduction in spousal support; (2) the trial court erred or abused
its discretion in failing to consider the factors listed in Code
§ 20-107.1; and (3) the trial court abused its discretion in
awarding attorney's fees to wife. 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.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Material Change
"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). See Code § 20-109. This "material change" must have
occurred subsequent to the most recent judicial review of the
award. See Hiner v. Hadeed, 15 Va. App. 575, 577, 425 S.E.2d
811, 812 (1993). On appeal, we construe the evidence in the
light most favorable to wife as the prevailing party, granting
her all inferences fairly deducible therefrom. See McGuire v.
McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990). "We
will not disturb the trial court's decision where it is based on
an ore tenus hearing, unless it is 'plainly wrong or without
evidence in the record to support it.'" Furr v. Furr, 13 Va.
App. 479, 481, 413 S.E.2d 72, 73 (1992) (citation omitted).
Husband contends that there had been a material change in
circumstances following the court's last review of spousal
support on January 27, 1994. Husband further contends the trial
court erred when it found no material change for spousal support
purposes after finding grounds to increase his child support.
The evidence proved that both husband and wife earned more at the
time of the hearing than they did in January 1994. The parents'
increased income requires either a recomputation of child support
or a written finding rebutting the application of the guidelines.
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Code § 20-108.2. The parties' increased income supports the
trial judge's decision to increase child support payments. Code
§ 20-108.2. However, under the Virginia statute, a trial court's
findings concerning child support are distinct from its spousal
support determinations.
Proof that both parties experienced an increase in income
does not necessarily warrant a finding that spousal support
should be decreased. Wife testified that she was earning $20,000
per year at the time of the January 1994 hearing. Wife had been
terminated from that employment and had trouble finding new
employment. She was currently earning approximately $29,000 per
year. She has a serious health condition that was not currently
covered by insurance. Since the last hearing, wife had moved
from her mother's home and had purchased a townhouse closer to
her new job. Her expenses had substantially increased.
Husband testified that he took a new position with increased
income, but which had no retirement benefits and higher medical
insurance costs. The court found husband's current monthly
income to be $5,948. His average monthly income for 1993 was
$5,187. Husband testified that he had about $3,000 in expenses
for dental work that he needed.
On this evidence the trial court found that husband had not
demonstrated a material change in circumstances justifying a
modification of spousal support. Significantly, both parties had
increased earnings since that hearing. Wife's expenses for
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housing and related costs had also increased. Considering all of
these factors, we cannot say the trial court's decision was
plainly wrong or without evidence to support it.
Statutory Factors
Husband contends, without specification, that the
trial court failed to consider the factors
set out in Code § 20-107.1 when reaching its
determination. The record demonstrates that
the court considered the financial
information presented by the parties. See
Hollowell v. Hollowell, 6 Va. App. 417, 419,
369 S.E.2d 451, 452-53 (1988). Husband has
not indicated which additional statutory
factors the trial court failed to consider.
Although the appellant argues that the trial
court did not consider all of the statutory
factors, his brief fails to identify which
factors were not considered and how they
would have affected the trial court's
determination. Since this argument was not
fully developed in the appellant's brief, we
need not address this question.
Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239
(1992). Therefore, we find no error in the trial judge's
determination.
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Attorney's Fees
An award of attorney's fees is a matter submitted to the
sound discretion of the trial court and is reviewable on appeal
only for an abuse of discretion. Graves v. Graves, 4 Va. App.
326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award
of counsel fees is reasonableness under all the circumstances.
McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985). Husband earned substantially more than wife. Wife
incurred over $4,500 in fees and costs associated with the trial
court proceedings. Based on the number of issues involved and
the respective abilities of the parties to pay, we cannot say
that the award was unreasonable or that the trial judge abused
his discretion in awarding wife $2,500 in attorney's fees.
Motion for Sanctions
Wife has filed a motion for sanctions seeking an award of
attorney's fees. In the trial court, husband filed a motion to
reduce spousal support based upon wife's full-time employment.
Husband admitted that he did not know wife's income at the time
he filed the motion. The trial court awarded wife a portion of
her attorney's fees arising from husband's unsuccessful motion.
Husband's failure to demonstrate a material change in
circumstances justifying a reduction in spousal support does not
warrant sanctions under Rule 11. Therefore, wife's motion for
sanctions is denied.
Accordingly, the decision of the circuit court is summarily
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affirmed.
Affirmed.
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