David Ware Riley v. Connie Pugh Riley

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
DAVID WARE RILEY
MEMORANDUM OPINION *
v. Record No. 0637-96-3 PER CURIAM
OCTOBER 8, 1996
CONNIE PUGH RILEY
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
(A. David Hawkins; Overbey, Hawkins & Selz,
on briefs), for appellant.
(Richard P. Cunningham, on brief), for
appellee.
David Ware Riley (husband) appeals the decision of the
circuit court setting the amount of monthly spousal support
payable to Connie Pugh Riley (wife). Husband raises four issues
on appeal:
(1) whether testimony by a witness without
personal knowledge regarding estimates
made by professional contractors
constitutes hearsay which is material
and prejudicial;
(2) whether the trial court should consider
the intent of the parties in making the
original separation agreement when
adjusting the level of support following
the parties' children reaching majority;
(3) whether wife's present lifestyle,
fourteen years after the divorce, is the
proper standard to apply in order to
determine the level of support to which
she is entitled; and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(4) whether spousal support of $1,000
constitutes an improper increase in
spousal support where the prior unitary
award of spousal and child support was
$1,400 and wife introduced no evidence
of materially changed circumstances.
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.
Hearsay Evidence
"'The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be disturbed
on appeal in the absence of an abuse of discretion.'" Crews v.
Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d 407, 409 (1994)
(citation omitted). Assuming, without deciding, that the
disputed evidence constituted hearsay, husband has failed to
establish that the challenged hearsay evidence was material and
prejudicial so as to amount to reversible error. See CSX
Transp., Inc. v. Casale, 247 Va. 180, 183, 441 S.E.2d 212, 214
(1994). Wife testified without exception that her home needed a
new roof, painting, and driveway repairs. While husband
challenged the admissibility of wife's testimony regarding the
contractors' estimates for these repairs, wife included a monthly
expense of $295 in estimated home repairs in her Exhibit 1, to
which husband did not object.
The court did not award wife the full amount of her
projected monthly shortfall of $1,816.34, and husband has not
demonstrated that the court relied upon the challenged testimony
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in making its award. Therefore, husband has failed to
demonstrate that the admission of hearsay testimony by wife was
material to the court's decision to award $1,000 in monthly
spousal support.
Intent under the Separation Agreement
"Property settlement and support agreements are subject to
the same rules of construction and interpretation applicable to
contracts generally." Fry v. Schwarting, 4 Va. App. 173, 180,
355 S.E.2d 342, 346 (1987). "[O]n appeal if all the evidence
which is necessary to construe a contract was presented to the
trial court and is before the reviewing court, the meaning and
effect of the contract is a question of law which can readily be
ascertained by this court." Id. Husband contends the trial
court erred by refusing to consider the parties' intent at the
time the original separation agreement was signed. However, when
an agreement is clear on its face, parol evidence as to the
parties' intent is not necessary. "[B]ecause a separation
agreement is a contract and must be construed as such . . . the
intent of the parties as expressed in the contract controls.
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." Gayler v. Gayler, 20 Va. App. 83, 86, 455 S.E.2d
278, 280 (1995) (citations omitted).
The agreement provided, in pertinent part, as follows:
2. Unitary Support; Insurance; Medical;
College Education
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Beginning on the 1st day of March, 1982,
Husband agrees to pay the sum of $1,700.00 a
month for the support and maintenance of Wife
and the children born of the marriage. This
sum shall be included in the income of the
Wife and deductible from the gross income of
the Husband. This provision shall be subject
to modification or change by a court of
competent jurisdiction upon a showing of
change in circumstances subsequent to the
date of this agreement.
The plain language of the agreement therefore demonstrated that
the parties contemplated modifications in the unitary support
amount "upon a showing of change in circumstances." No language
in the agreement suggests any characterization or purpose behind
the unitary support payment. Therefore, the trial court did not
err in refusing to allow husband to introduce parol evidence as
to the parties' alleged intent.
Wife's Current Needs
Code § 20-109 provides that "upon petition of either party
the court may increase, decrease or terminate spousal support and
maintenance that may thereafter accrue . . . as the circumstances
may make proper." "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).
Husband alleged, and the trial court agreed, that a material
change in circumstances had occurred warranting a reduction in
his monthly unitary support payment of $1,400. The parties'
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younger child had reached his majority, relieving husband of the
responsibility to pay child support. Husband continued to pay
costs associated with his children's education, as set out in the
parties' separation agreement.
The court found that wife's current needs required $1,000 in
monthly spousal support "to allow [wife] to maintain the life
style to which she is and has become accustomed." The focus on
wife's current needs complied with the statutory scheme which
"recognizes that comparative needs and capacities change as
circumstances change, that changes are not fairly predictable,
and that spousal support awards must be determined in light of
contemporary circumstances and then, if necessary, redetermined
in light of new circumstances." Jacobs v. Jacobs, 219 Va. 993,
995, 254 S.E.2d 56, 58 (1979). The trial court found that
husband had the ability to pay $1,000 a month in spousal support.
Husband admitted his income had risen substantially since the
time of the divorce. We find no evidence that the court was
seeking to impose a higher standard of living than that
established during the marriage and find no error in the trial
court's consideration of the statutory factors.
Improper Increase in Spousal Support
As noted above, the trial court considered wife's current
needs and husband's current ability to pay prior to setting the
amount of spousal support. Under Code § 20-109, the court may
increase, decrease or terminate spousal support as the
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circumstances warrant. The trial court considered the evidence
and the statutory factors before reaching its decision. We find
no error or abuse of discretion in the trial court's award.
Accordingly, the decision of the circuit court is summarily
affirmed. Affirmed.
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