Badri N. Das v. Pushp L. Das

• Court: Court of Appeals of Virginia
• Decided: May 13, 1997
• Docket: 2656964
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Fitzpatrick

BADRI N. DAS MEMORANDUM OPINION * v. Record No. 2656-96-4 PER CURIAM MAY 13, 1997 PUSHP L. DAS

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Paul F. Sheridan, Judge

(Ted Kavrukov; Kavrukov, Mehrotra & DiJoseph, on briefs), for appellant. (Edward Ellis Zetlin; Legal Services of Northern Virginia, on brief), for appellee.

Badri N. Das (husband) appeals the decision of the circuit

court denying his motion to eliminate or reduce spousal support

paid to Pushp L. Das (wife). 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.

The parties signed a settlement agreement which was

incorporated into the final divorce decree. Pursuant to that

agreement, at the time of the hearing, husband paid wife $600 in

monthly spousal support. Prior to husband's retirement, wife

received health insurance through husband's employment. The

parties' agreement also provided that "[b]ased on retirement,

relocation, or other similar circumstances, the parties reserve

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. the right to request revision of spousal support under Rule 109."

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 testified that since the entry of the divorce, he

had retired and remarried. He continued to need domestic help at

the cost of $100 per month because of his peptic ulcer. His

monthly retirement income was $1,998.

Wife earned $850 per month as a child care provider, but her

employment required her to relocate. Wife had monthly rental

income of $1,250 but related expenses of $1,413. Wife also had

heart disease requiring daily medication and, since husband's

retirement, paid $145 per month for health insurance. After

reaching age sixty-two, wife began to draw $406 in monthly Social

Security, which was her only retirement income. Wife's monthly

income from work, rental property and Social Security totaled

$2,506.

The trial court found that husband was not required to

provide health insurance coverage for wife after his retirement.

The court denied husband's motion to reduce or eliminate spousal

2 support. Credible evidence in the record supports this

conclusion. Both husband and wife were over sixty years old, but

while husband was retired, wife was required to continue her

employment without which her income would have fallen to less

than $1,700. Wife had no retirement benefits other than Social

Security, although she received a one-time lump sum payment of

approximately $13,500 prior to the parties' divorce. The income

wife earned from the rental property did not exceed her mortgage

expenses. Wife also was now responsible for monthly health

insurance premiums of $145. "When a trial court hears evidence ore tenus, its findings

are entitled to the weight of a jury verdict, and will not be

disturbed on appeal unless plainly wrong or without evidence to

support them." Floyd v. Floyd, 1 Va. App. 42, 45, 333 S.E.2d

364, 366 (1985). The trial court's findings are neither plainly

wrong nor unsupported by evidence. Accordingly, the decision of

the circuit court is summarily affirmed. Affirmed.