Gregory O. Wigglesworth v. Carrie F. Wigglesworth

• Court: Court of Appeals of Virginia
• Decided: April 22, 1997
• Docket: 2498962
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Fitzpatrick

GREGORY O. WIGGLESWORTH MEMORANDUM OPINION * v. Record No. 2498-96-2 PER CURIAM APRIL 22, 1997 CARRIE F. WIGGLESWORTH

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY William H. Ledbetter, Jr., Judge

(Joseph J. Ellis; Ellis & Ellis, on brief), for appellant. (Carrie F. Wigglesworth, pro se, on brief).

Gregory O. Wigglesworth (husband) appeals the decision of

the circuit court reserving spousal support for Carrie F.

Wigglesworth (wife). Husband argues that the trial court erred

in reserving future spousal support because wife failed to

request a reservation of support in her pleadings. 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.

Wife was awarded spousal support by order of the juvenile

and domestic relations district court. Husband commenced this

action in the circuit court, seeking to terminate the existing order of spousal support. Thus, this case commenced in the

circuit court in a significantly different procedural posture

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. than Boyd v. Boyd, 2 Va. App. 16, 340 S.E.2d 578 (1986), which

husband relies upon as authority. In Boyd, the wife failed to

request spousal support when she filed her initial pleadings in

the circuit court, no order concerning spousal support was filed

during the proceedings, and the issue was not raised by the

parties in their trial memoranda. Id. at 18, 340 S.E.2d at 579.

We ruled that the issue of spousal support was not raised in the

pleadings and the trial court lacked jurisdiction to award relief

not sought. Id. at 19, 340 S.E.2d at 580. See also Reid v.

Reid, 24 Va. App. 146, 150, 480 S.E.2d 771, 773 (1997).

Here, the requested relief was the termination of support,

which wife opposed. As noted by the trial court, "the parties

and counsel adduced almost 200 pages of transcribed testimony

primarily on the issue of spousal support." The trial court

correctly noted that wife currently receives spousal support under a valid and final order of the juvenile court. She does not have to affirmatively plead for something she has already been awarded. It is [husband] who seeks relief in this case, by way of a termination of his spousal support obligation.

The court found that husband assumed responsibility for payments

on a tax lien and the outstanding indebtedness on the car in

wife's possession and that those were material changes which

justified a termination in support. The court then noted that,

"[i]f circumstances materially change again in the future, [wife]

has the right, to be expressly reserved in the divorce decree, to

2 petition for a modification as provided by statute."

We find no error in the trial court's decision to grant

husband's request to terminate support, but reserve wife's right

to petition for support again in the future. Accordingly, the

decision of the circuit court is summarily affirmed.

Affirmed.