Herman Norris Elliott v. Josephine A Jacobs Elliott ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Overton and Senior Judge Hodges
Argued at Salem, Virginia
HERMAN NORRIS ELLIOTT
MEMORANDUM OPINION * BY
v. Record No. 2921-95-3 JUDGE JOHANNA L. FITZPATRICK
JULY 16, 1996
JOSEPHINE ALPHA JACOBS ELLIOTT
FROM THE CIRCUIT COURT OF THE CITY OF SALEM
G. O. Clemens, Judge
John W. Acree (Jolly, Place, Fralin &
Prillaman, P.C., on brief), for appellant.
Chris K. Kowalczuk (Richard Lee Lawrence &
Associates, on brief), for appellee.
In this domestic relations appeal, Herman Norris Elliott
(husband) argues that the trial court erred in finding him to be
underemployed and in finding his new salary sufficient to
continue to pay spousal support of $75 per week to Josephine
Alpha Jacobs Elliott (wife). He further argues that the trial
court erred in awarding attorney's fees to wife. For the reasons
that follow, we affirm.
BACKGROUND
In a final decree dated September 29, 1994, the trial court
ordered husband to pay $75 per week in spousal support to wife
and awarded each party his or her own retirement benefits. On
June 23, 1995, husband moved for a reduction in spousal support.
The trial court denied husband's request and found that: (1)
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
husband's voluntary underemployment did not support a reduction,
and (2) husband had sufficient income to pay the spousal support
as ordered. The trial court also awarded attorney's fees to
wife. Husband filed a motion to reconsider, and a second hearing
was held on October 26, 1995.
The evidence established that husband worked for Elizabeth
Arden for over twenty-nine years. In January 1995, he received a
"Voluntary Retirement Incentive Program" memorandum from his
employer, offering him the opportunity for early retirement.
Husband chose to participate in the early retirement program
because he anticipated that Elizabeth Arden might eliminate his
job. Upon husband's retirement, his enhanced retirement benefits
totaled $220,336.45. Husband opted to receive his retirement
benefits in a lump sum, rather than in monthly installments.
After retiring, husband obtained a new job with Hanover
Direct, where he earns $8 per hour and approximately $377 per
week. Additionally, husband withdrew money from a separate
401(k) account worth $120,000 to make spousal support payments.
Wife's monthly income is $1,326.98, and her expenses total
$1,664.85.
At the hearing on October 26, 1995, the trial judge found,
inter alia, that the $75 per week spousal support previously
ordered was not excessive when husband's salary was over $300 per
week and that husband "had the ability to pay that amount" for
spousal support. Additionally, he found that husband was
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voluntarily underemployed and stated as follows:
He chose early retirement and he chose not to
receive any income from his early retirement,
and that is his choice, but it has caused him
to not have as much income available to him
as he could have had under other means.
In a December 4, 1995 order, the trial court denied husband's
motion for a reduction in spousal support.
SPOUSAL SUPPORT
Husband contends that the trial court erred in finding that
he was voluntarily underemployed and in determining that his
current income is sufficient to pay spousal support. Husband
claims that he is forced to use his retirement benefits to make
spousal support payments.
"'[T]he decision to award spousal support rests within the
sound discretion of the trial court.'" L.C.S. v. S.A.S., 19 Va.
App. 709, 714, 453 S.E.2d 580, 583 (1995) (quoting Via v. Via, 14
Va. App. 868, 870, 419 S.E.2d 431, 433 (1992)), cert. denied, ___
U.S. ___, 116 S. Ct. 1360 (1996). "Once evidence is produced
that a [spouse] chose to leave his or her employment without
being discharged, a trial court may infer that the unemployment
was voluntary." Brody v. Brody, 16 Va. App. 647, 650, 432 S.E.2d
20, 22 (1993). "The burden of proof is upon that [spouse] to
explain why his or her unemployment or underemployment was not
'voluntary.'" Id. "A reduction in income resulting from a
voluntary employment decision does not require a corresponding
reduction in the payor spouse's support obligations, even if the
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decision was reasonable and made in good faith." Stubblebine v
Stubblebine, 21 Va. App. 635, 640, 466 S.E.2d 764, 766 (1996),
reh'g en banc granted, Mar. 22, 1996.
Although the trial court addressed the issue of husband's
voluntary reduction in income, it did not impute any income to
husband in the instant case. The court simply evaluated the
ability of husband to continue to make his spousal support
payments with his lower salary. The trial court's finding that
husband's current salary of $377 a week was sufficient to pay $75
in spousal support was supported by the evidence. The denial of
husband's request for a reduction was not an abuse of discretion.
ATTORNEY'S FEES
Husband also argues that the trial court erred in awarding
attorney's fees to wife. "'An award of attorney fees is a matter
submitted to the trial court's sound discretion and is reviewable
on appeal only for an abuse of discretion.'" L.C.S., 19 Va. App.
at 721, 453 S.E.2d at 587 (quoting Graves v. Graves, 4 Va. App.
326, 333, 357 S.E.2d 554, 558 (1987)). Under the circumstances
of this case, we can find no abuse of discretion by the trial
court.
Accordingly, the decision of the trial court is affirmed.
Affirmed.
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