Robert Hyer Allison v. Marleen McBride Allison ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Overton
Argued at Alexandria, Virginia
ROBERT HYER ALLISON
v. Record No. 1516-95-4 MEMORANDUM OPINION * BY
JUDGE NELSON T. OVERTON
MARLEEN McBRIDE ALLISON APRIL 16, 1996
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jack B. Stevens, Judge
Gary V. Davis for appellant.
James A. Watson, II (Surovell, Jackson, Colten, &
Dugan, P.C., on brief), for appellee.
Robert Hyer Allison, husband, appeals the denial of his
motion to reduce spousal support to Marleen McBride Allison,
wife. Finding no error in the lower court's decision, we affirm
the decision of the circuit court.
Husband and wife were divorced in 1993 and husband was
ordered to pay spousal support to wife. Husband stopped working
in November 1994 and then petitioned the court for a reduction in
support based on this change in circumstances. His monthly
income had fallen from $5,777.34 to $5,373.00. After a hearing
at which both husband and wife gave testimony and other evidence,
the trial judge denied the motion to reduce husband's spousal
support. In his order, he ruled that "the Defendant has failed
to prove that his involuntary cessation of employment is a change
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
warranting a modification of the initial support award."
Husband asserts that the court erred by not considering all
of the factors set forth in Code § 20-107.1 governing spousal
support awards. We disagree. Section 20-107.1 applies to the
initial setting of spousal support. "If the court determines
that an award should be made, it shall, in determining the
amount, consider the [listed factors]." Code § 20-107.1. The
consideration of all of the factors in Code § 20-107.1 is not
required when a judge rules upon a motion to reduce the award
under Code § 20-109. Cf. Yohay v. Ryan, 4 Va. App. 559, 567, 359
S.E.2d 320, 324-25 (1987) (holding that when determining
reduction of child support award under Code § 20-108, the court
is not required to consider all of Code § 20-107.2 factors used
to initially set the award). The standard for a warranted
modification of spousal support is rather whether the moving
party proves "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
Furr v. Furr, 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992).
The court in this case expressly found that no such change
had occurred after considering all evidence of income to each of
the parties. Husband argues that the judge improperly refused to
hear evidence pertaining to wife's net worth and assets. His
argument is unpersuasive. The judge was not required to consider
wife's separate estate assets in determining a modification of
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spousal support. See Klotz v. Klotz, 203 Va. 677, 680, 127
S.E.2d 104, 106 (1962). The wife's income is instead the crucial
issue, and the record demonstrates that wife fully disclosed her
income through testimony and interrogatories. The judge likewise
considered all of husband's income. To the extent that husband
had the ability to withdraw from his retirement accounts without
penalty, the judge properly considered this source of income.
The record supports the finding that no material change of
circumstances warranted a reduction in spousal support. As such,
the decision of the trial court will be upheld.
Husband also appeals the decision of the court concerning
attorneys' fees. Husband failed, however, to include any
transcript or statement of facts of the proceedings in question,
leaving this Court without a means to determine the issue. We
therefore dismiss that portion of the appeal. Turner v.
Commonwealth, 2 Va. App. 96, 100, 341 S.E.2d 400, 402 (1986).
Affirmed in part and
dismissed in part.
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