Courtney Wood v. Harry Wood ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Elder
Argued at Alexandria, Virginia
COURTNEY WOOD
MEMORANDUM OPINION * BY
v. Record No. 2388-97-4 JUDGE LARRY G. ELDER
APRIL 21, 1998
HARRY WOOD
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge
Paula W. Rank (Byrd, Mische, Bevis, Bowen,
Joseph & O'Connor, P.C., on brief), for
appellant.
Beth A. Bittel (Law Offices of Beth A.
Bittel, on brief), for appellee.
Courtney Wood ("mother") appeals the trial court's order
granting the motion of Harry Wood ("father") to reduce his
obligations of child support and spousal support. For the
reasons that follow, we affirm.
On appeal, "[a] presumption exists that the trial court
based its decision on the evidence presented and properly applied
the law." Reece v. Reece, 22 Va. App. 368, 372, 470 S.E.2d 148,
151 (1996). The burden is on the appellant to show that the
trial court's decision was erroneous. See Twardy v. Twardy, 14
Va. App. 651, 658, 419 S.E.2d 848, 852 (1992).
"Under familiar principles we view [the]
evidence and all reasonable inferences in the
light most favorable to the prevailing party
below. Where, as here, the court hears the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
evidence ore tenus, its finding is entitled
to great weight and will not be disturbed on
appeal unless plainly wrong or without
evidence to support it."
Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668
(1997) (en banc) (quoting Martin v. Pittsylvania County Dept. of
Social Services, 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986)).
I.
CHANGE IN CIRCUMSTANCES
We hold that the evidence was sufficient to support the
trial court's conclusion that a material change in circumstances
had occurred since the entry of the parties' divorce decree that
warranted a reduction in father's spousal and child support
obligations.
The party seeking a modification of child or spousal support
has the burden of proving (1) that a material change in
circumstances has occurred since the most recent judicial review
of the award and (2) that the change warrants modification of the
party's support obligations. See Moreno v. Moreno, 24 Va. App.
190, 195, 480 S.E.2d 792, 795 (1997); see also Layman v. Layman,
25 Va. App. 365, 367, 488 S.E.2d 658, 659 (1997). The moving
party must also make "full and clear disclosure relating to his
ability to pay" and prove that "his lack of ability to pay is not
due to his own voluntary act or because of his neglect." Hammers
v. Hammers, 216 Va. 30, 31-32, 216 S.E.2d 20, 21 (1975); see also
Crosby v. Crosby, 182 Va. 461, 466, 29 S.E.2d 241, 243 (1944).
First, we disagree with mother that the parties' agreement
2
required father to prove a change in his "average" financial
condition over a number of years. The provision regarding
father's support obligation is unambiguous and mother's
interpretation of it is inconsistent with the plain meaning of
its terms. The agreement, which was incorporated into the
parties' divorce decree, expressly utilized the well established
"change of circumstances" test as the mechanism by which the
parties may seek to modify spousal support. This standard also
governs requests to change father's child support obligation.
See Kaplan v. Kaplan, 21 Va. App. 542, 547, 466 S.E.2d 111,
113-14 (1996). Significantly, the text of the agreement does not
indicate that the proof burden imposed upon a party seeking a
change in support is any different from that imposed upon a
person seeking to modify a purely court-ordered support
obligation. Moreover, the levels of child and spousal support
established by the parties in the agreement were based upon the
approximate "present gross annual income" of each party and not
their "average" gross annual incomes.
A separation agreement . . . is a contract
and must be construed as such. Where the
agreement is plain and unambiguous in its
terms, the rights of the parties are to be
determined from the terms of the agreement
and the court may not impose an obligation
not found in the agreement itself.
Jones v. Jones, 19 Va. App. 265, 268-69, 450 S.E.2d 762, 764
(1994).
The evidence, when viewed in the light most favorable to
3
father, supports the trial court's conclusions that the change in
father's financial condition was not attributable to his
voluntary actions or neglect and that it warranted a reduction in
his support obligations. In 1995, father agreed to pay mother
$2,850 per month in spousal support and $800 per month in child
support for the parties' sole minor child. The parties expressly
stated in their agreement that these amounts were "predicated
upon" the fact that father's "present gross annual income" was
"approximately $150,000." At the hearing on father's motion, the
evidence indicated that father had experienced a drastic
reduction in income due to market-related changes affecting his
business, Harcourt Group, Ltd. ("Harcourt"), and that the
financial reversal of Harcourt was not attributable to any
neglect or other acts of father.
Furthermore, based on our review of the record, we cannot
say that father failed to provide full and clear disclosure
regarding his current ability to meet his support obligations.
The record contains ample evidence regarding father's salary and
other forms of income from Harcourt as well as the past, present,
and future performance of Harcourt. Although mother contends
that the evidence produced by father regarding his ability to pay
was of an insufficient quality, the credibility and weight of
this evidence was an issue for the finder of fact at trial and
not for this Court on appeal. Cf. Moreno, 24 Va. App. at 195,
480 S.E.2d at 795.
4
II.
FATHER'S INCOME
We also hold that the evidence was sufficient to support the
trial court's finding that father's income was currently $60,000
per year. The record established that, from the beginning of
1997 to August 14, 1997, the date of the hearing, father's income
consisted of $9,000 in salary from Harcourt and approximately
$46,000 in loans from Harcourt and one of his pension plans.
Father's testimony indicated that, in light of Harcourt's
business problems and liability to its retirement account, father
would probably receive little if any additional income from
Harcourt in 1997.
III.
IMPUTATION OF INCOME TO MOTHER
Mother contends that the trial court's imputation of income
to her was unsupported by the evidence and that the trial court
erred when it declined to impute income to father based on his
earning capacity. We disagree with both contentions.
In light of our standard of review, we cannot say that the
trial court's decision to impute income to mother was unsupported
by the evidence. Steven Shedlin, a "forensic employment expert,"
opined that, based on her background, mother could obtain work in
retail management that paid between $21,000 and $25,000 per year,
including commissions, "within two-to-three months of full-time
job search." This testimony, which the trial court deemed
5
credible, supports the trial court's finding that mother can earn
$1,917 per month.
We hold that the trial court did not abuse its discretion
when it declined to impute income to father. "A 'court may
impute income to a party who is voluntarily unemployed or
underemployed.'" Stubblebine v. Stubblebine, 22 Va. App. 703,
708, 473 S.E.2d 72, 74 (1996) (en banc) (quoting Calvert v.
Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875, 876 (1994)); see
also Code § 20-108.1(B)(3). Although father's income declined
from $211,263 to about $60,000 in a two-year period, the evidence
in this case supports the trial court's conclusion that any
"underemployment" attributable to father was not voluntary. The
decrease in father's earnings was directly linked to the downturn
in Harcourt's business. When viewed in the light most favorable
to father, the evidence supports the conclusion that Harcourt's
financial reversal was due to market forces beyond father's
control and was not linked to any act or neglect on father's
part. Cf. Brooks v. Rogers, 18 Va. App. 585, 593, 445 S.E.2d
725, 729 (1994); Floyd v. Floyd, 17 Va. App. 222, 231, 436 S.E.2d
457, 462-63 (1993).
IV.
STANDARD OF LIVING ESTABLISHED DURING THE MARRIAGE
We disagree with mother that the trial court failed to
consider the standard of living established by the parties during
the marriage. The standard of living established by the parties
6
during the marriage is a factor considered by a trial court when
determining how much a spousal or child support obligation should
be modified. See Stubblebine, 22 Va. App. at 710-11, 473 S.E.2d
at 75-76; Conway v. Conway, 10 Va. App. 653, 658, 395 S.E.2d 464,
467 (1990); Code §§ 20-107.1(3), -108.1(B)(10). Although neither
the written statement of facts nor the trial court's order
expressly indicates that the trial court considered this factor
when it determined the amount of the reduction in father's
obligations, the trial court is presumed to have "properly
applied the law." Reece, 22 Va. App. at 372, 470 S.E.2d at 151.
Moreover, after considering the limited evidence in the record
regarding the standard of living established by the parties prior
to their divorce, we cannot say that the trial court's
consideration of this factor in its overall analysis was
erroneous.
V.
CONSIDERATION OF MOTHER'S ASSETS
Similarly, nothing in the record affirmatively indicates
that the trial court improperly considered the assets obtained by
mother from either inheritance or equitable distribution.
Although mother argues that the trial court considered these
assets "beyond the extent to which [they] produce income," the
trial court's order indicates that it considered only the
"passive income" produced by her assets. Based on the record
before us, we cannot say that the trial court's consideration of
7
mother's assets was erroneous.
After considering the circumstances of this case, we deny
both parties' requests for attorney fees and costs related to
this appeal.
For the foregoing reasons, we affirm the order of the trial
court.
Affirmed.
8