David Ware Riley v. Connie Pugh Riley

• Court: Court of Appeals of Virginia
• Decided: October 8, 1996
• Docket: 0637963
• Status: Unpublished

Opinion

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

2 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

3 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'

4 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

5 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.