Paul H. Blalock v. Sherri Sue Blalock ( 2014 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Decker and Senior Judge Coleman
UNPUBLISHED
PAUL H. BLALOCK
MEMORANDUM OPINION*
v. Record No. 0895-14-4 PER CURIAM
NOVEMBER 4, 2014
SHERRI SUE BLALOCK
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge Designate
(Ryan M. Schmalzle; Beckman Schmalzle PLC, on briefs), for
appellant.
(Elizabeth M. Ross; Lieblich & Grimes, P.C., on brief), for appellee.
Paul H. Blalock (husband) appeals a spousal support order. Husband argues that the trial
court erred by (I) modifying his spousal support obligation because “the trial court failed to properly
account for (1) the income imputed to [Sherri Sue] Blalock [(wife)], (2) [wife’s] significantly
reduced cost of living due to her relocation, (3) [wife’s] lack of housing costs, and (4) the factors
listed in Virginia Code Ann. 20-107.1(E);” and (II) not terminating his spousal support obligation
because wife failed to prove an ongoing need for support and because “the trial court failed to
properly account for (1) the income imputed to [wife], (2) [wife’s] significantly reduced cost of
living due to her relocation, (3) [wife’s] lack of housing costs, and (4) the factors listed in Virginia
Code Ann. 20-107.1(E).” 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.
See Rule 5A:27.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
“When reviewing a trial court’s decision on appeal, we view the evidence in the light
most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”
Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003) (citations omitted).
The parties married on December 22, 1979. The trial court entered an amended order of
divorce on March 11, 2009, nunc pro tunc to November 6, 2008. Pursuant to the order, husband
was to pay spousal support to wife in the amount of thirty percent of his base salary, so at the
time of the divorce, he paid her $7,125 per month. As additional support and maintenance, he
was ordered to pay wife thirty percent of “the gross cash component of the Husband’s annual
bonus” within ten days of its receipt.
At the time of the divorce, wife lived in the former marital residence in Loudoun County.
After the former marital residence sold, she moved to her home in Fort Gibson, Oklahoma and
paid off its mortgage.
On May 18, 2012, husband filed a motion to modify spousal support. Husband argued
that wife moved to Oklahoma and lowered her cost of living, so her need for spousal support
decreased. He also stated that he changed jobs since the parties divorced.
On January 8, 2014, husband appeared before the trial court to present evidence on his
motion. Wife did not appear.1 Husband testified about the changes since the divorce, including
wife’s move to Oklahoma. He also presented evidence from a vocational and cost of living
expert who testified about the lower cost of living in Oklahoma and wife’s earning capacity.
On January 10, 2014, the trial court issued a memorandum opinion. The trial court found
that there was a “material change in circumstances warranting a modification of support based
1
Wife requested a continuance of the hearing, but the trial court found that the motion
was “untimely and prejudicial” to husband. It also noted that the motion to modify spousal
support had been on the docket for over one and a half years.
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upon the testimony regarding the [wife’s] employability, vocational training period, [husband’s]
slight reduction in salaried income, amount of previous bonus awards, and cost of living for the
parties.” The trial court ordered that husband’s support obligation would be $7,125 per month,
as of January 1, 2014. He no longer was obligated to pay a portion of his bonus to wife. The
trial court entered an order memorializing its rulings on April 17, 2014. Both parties noted their
objections to the order.
On the same day, the trial court also entered an order suspending judgment. Husband
filed a motion to reconsider and brief in support thereof on April 22, 2014. Husband requested
that the trial court lower his spousal support obligation to $2,535 per month, based on the wife’s
earning capacity and her lower cost of living. On April 30, 2014, the trial court entered an order
denying the motion to reconsider. This appeal followed.
ANALYSIS
Assignments of error I and II
Husband argues that the trial court erred in modifying, not terminating, husband’s spousal
support obligation. He contends the trial court did not consider (1) income imputed to wife,
(2) wife’s lower cost of living in Oklahoma, (3) the lack of housing costs for wife, and (4) the
Code § 20-107.1(E) factors.
“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) (quoting Schoenwetter v. Schoenwetter, 8 Va. App.
601, 605, 383 S.E.2d 28, 30 (1989)).
Husband contends the trial court erroneously considered the disparity in the parties’
earning capacities and did not focus on wife’s need for support. He asserts that wife’s need for
spousal support decreased when she moved to Oklahoma. She paid off the mortgage on her
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home in Oklahoma. In addition, husband presented expert testimony that the standard of living
was significantly lower in Fort Gibson, Oklahoma than it was in Loudoun County, Virginia.
Lastly, husband argues that the trial court did not consider the income it imputed to wife when it
determined her need for support.
“The determination whether a spouse is entitled to [a termination of spousal] support . . .
is a matter within the discretion of the [trial] court . . . .” Dukelow v. Dukelow, 2 Va. App. 21,
27, 341 S.E.2d 208, 211 (1986).
“Upon [the] petition of either party the court may increase, decrease, or terminate the
amount or duration of any spousal support and maintenance . . . as the circumstances may make
proper.” Code § 20-109. “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, 8 Va. App. at 605, 383 S.E.2d at 30 (citation omitted). The material
change in circumstances “must bear upon the financial needs of the dependent spouse or the
ability of the supporting spouse to pay.” Hollowell v. Hollowell, 6 Va. App. 417, 419, 369
S.E.2d 451, 452 (1988).
Contrary to husband’s arguments, the trial court considered all of the evidence presented
when it modified his spousal support obligation. The trial court noted in its memorandum
opinion that husband’s annual income at the time of the divorce was $285,000, not including
bonus income. At the time of the modification hearing, husband’s annual income was $275,000,
not including bonus income. It also determined that based on the evidence presented, wife was
capable of earning $20,000 per year “after five months training.” Further, the trial court found
that there was “a gross disparity between the cost of living in [wife’s] home state of Oklahoma
and that of Loudoun County.”
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On appeal, husband focuses on the trial court’s statement that “the evidence suggests that
there exists both a gross disparity between the earning capacities of the parties even after
imputing income to [wife].” He argues that the trial court relied on an additional factor that was
not found in Code § 20-107.1(E), namely the parties’ disparity in incomes. Husband did not
make this objection or argument to the trial court. Therefore, this Court will not consider it.
Rule 5A:18.
Husband also contends the trial court did not consider all of the evidence presented for
the factors in Code § 20-107.1(E). He asserts that the trial court did not consider wife’s
education, his contributions to the marriage, and the reasons for the breakdown of the marriage.
However, in its April 30, 2014 order, the trial court stated that “a reading of the Opinion reveals
the Court considered the statutory factors” and it specified where in its memorandum opinion
and prior order it considered the statutory factors. In awarding spousal support, a trial court must
consider the factors in Code § 20-107.1(E); however, “[t]his does not mean that the trial court is
required to quantify or elaborate exactly what weight or consideration it has given to each of the
statutory factors. It does mean, however, that the court’s findings must have some foundation
based on the evidence presented.” Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422,
426 (1986). Based on the trial court’s memorandum opinion, it is clear that the trial court
considered the Code § 20-107.1(E) factors when it modified the spousal support award.
After hearing all of the evidence and argument, the trial court held that there was a
material change in circumstances that warranted a modification in spousal support. Despite
husband’s arguments otherwise, this Court finds that the trial court specifically stated that it
based its decision on “the testimony regarding [wife’s] employability, vocational training period,
[husband’s] slight reduction in salaried income, amount of previous bonus awards, and cost of
living for the parties.”
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There is nothing in the record to suggest that a termination of spousal support was
appropriate considering the circumstances of the parties.
Accordingly, the trial court did not err in modifying husband’s spousal support
obligation.
Attorney’s fees and costs
Both parties requested an award of attorney’s fees and costs incurred on appeal. See
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). On consideration
of the record before us, we decline to award either party attorney’s fees and costs on appeal.
CONCLUSION
For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.
Affirmed.
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