Kenneth Francis Chandler, Sr. v. Gracie M. Chandler

• Court: Court of Appeals of Virginia
• Decided: June 20, 2000
• Docket: 2802991
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Humphreys

KENNETH FRANCIS CHANDLER, SR. MEMORANDUM OPINION * v. Record No. 2802-99-1 PER CURIAM JUNE 20, 2000 GRACIE MILBOURNE CHANDLER

FROM THE CIRCUIT COURT OF ACCOMACK COUNTY Glen A. Tyler, Judge

(J. Barbour Rixey, on brief), for appellant.

(Jon C. Poulson, on brief), for appellee.

Kenneth Francis Chandler, Sr. (husband) appeals the decision

of the circuit court granting Gracie Milbourne Chandler (wife) an

increase in spousal support. Husband contends that the trial

court erred by (1) finding that the cessation of child support was

a circumstance material to an award of spousal support; (2)

increasing the amount of spousal support without evidence of a

change of circumstances between the entry of the final decree and

the hearing; and (3) finding a material change in circumstances in

the parties' financial positions between 1997 and 1999. Upon

reviewing the record and briefs of the parties, we conclude that

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. this appeal is without merit. Accordingly, we summarily affirm

the decision of the trial court. See Rule 5A:27.1

On appeal, we view the evidence and all reasonable inferences

in the light most favorable to wife as the party prevailing below.

See McGuire v. McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346

(1990). "The trial court's decision, when based upon credibility

determinations made during an ore tenus hearing, is owed great

weight and will not be disturbed unless plainly wrong or without

evidence to support it." Douglas v. Hammett, 28 Va. App. 517,

525, 507 S.E.2d 98, 102 (1998).

"In a petition for modification of . . . spousal support, the

burden is on the moving party to prove a material change in

circumstances that warrants modification of support. The material

change 'must bear upon the financial needs of the dependent spouse

or the ability of the supporting spouse to pay.'" Richardson v.

Richardson, 30 Va. App. 341, 347, 516 S.E.2d 726, 729 (1999)

(citations omitted). "The petitioner must demonstrate a material

1 Husband filed a motion to strike the inclusion in the joint appendix of a copy of his 1997 federal income tax return on the ground that it was not part of the trial court record. Our review supports husband's contention. While husband testified at the August 1999 hearing concerning this return, neither party introduced a copy into evidence, apparently based upon the erroneous presumption that a copy was already included in the record following the 1997 hearing. Accordingly, we grant husband's motion to strike the document. Because it is not part of the record on appeal, it will not be considered by this Court. No further relief is required.

- 2 - change in circumstances from the most recent support award."

Barton v. Barton, 31 Va. App. 175, 177-78, 522 S.E.2d 373, 374

(2000).

The record demonstrates that the parties were divorced by

final decree entered May 24, 1999. Following the December 1997

hearing, pursuant to the interim instructions from the trial

court, husband paid $390 in monthly child support and $1 in

monthly spousal support. These requirements were incorporated

into the final decree of divorce entered May 24, 1999. However,

the final decree also noted that husband's obligation to pay

child support ceased on June 30, 1998 when the parties'

eighteen-year-old son ceased to be a full-time student.

By motion filed March 4, 1999, wife sought an increase in

spousal support, alleging a material change in circumstances

warranting an increase in spousal support. Following a hearing

on August 6, 1999, the trial court ruled that there had been a

material change in circumstances. By order entered October 28,

1999, the trial court awarded wife $375 in monthly spousal

support.

Cessation of Child Support as Change

We find no error in the determination of the trial court

that wife presented sufficient evidence to prove that there was

a material change in circumstances since the last hearing. The

trial court specifically noted that, at the time of the previous

- 3 - hearing in 1997, there was a question whether husband had the

ability to pay spousal support. The trial court also noted that

there had been a material change in husband's financial

obligations, including the cessation of child support, and that

while husband had incurred additional expenses, the new expenses

were not obligations. The trial court's factual finding that

there had been a material change in circumstances is supported

by evidence in the record.

This case is distinguishable from Head v. Head, 24 Va. App.

166, 480 S.E.2d 780 (1997), in which this Court referred to

the well established principle that "[c]hild support and spousal support are separate and distinct obligations based on different criteria." Lambert v. Lambert, 10 Va. App. 623, 628-29, 395 S.E.2d 207, 210 (1990) (child support not to be considered in determining award of spousal support). In light of this principle, a change in child support cannot be deemed a circumstance "material" to a support award.

Id. at 177-78, 480 S.E.2d at 786 (footnote omitted). In Head,

the trial court reduced the husband's child support payments

following legislative amendments to the statutory guidelines.

The wife then sought a dollar-for-dollar increase in spousal

support corresponding to the trial court's reduction in child

support. The trial court rejected the wife's claim, noting that

there was no evidence that the initial award was based upon a

determination of her household's total financial needs. In

contrast, in this case, the trial court noted that the initial

- 4 - $1 award of spousal support was based on the court's assessment

of husband's ability to pay and that the expiration of his

obligation to pay child support was one of several material

changes in husband's financial circumstances since the last

evidentiary hearing. Thus, unlike Head, the trial court here

found a material change in a factor which it previously ruled

precluded an immediate award of spousal support, i.e., husband's

other obligations, including child support.

Change Since Prior Decree

Husband contends that wife was required to prove a material

change in circumstances between the time of the entry of the

final decree in May 1999 and the evidentiary hearing in August

1999. We find no indication that husband raised this argument

below. The portion of the record to which husband refers as

preserving this contention demonstrates, on the contrary, that

husband, wife, and the trial court all addressed the changes in

financial circumstances as of the previous hearing in 1997.

Therefore, we do not address this contention further on appeal.

See Rule 5A:18.

Material Change in Circumstances

As noted above, the trial court found that there were

several material changes in the parties' circumstances and that

these changes warranted an increase in wife's spousal support.

The evidence indicated that both parties had increased earnings,

- 5 - but that husband continued to earn more than twice what wife

earned. While husband presented evidence that he had additional

expenses, the trial court noted that husband himself created

some of the expenses. Husband testified that he purchased a

Mercedes on which he made monthly payments of $574.62. He made

$2,000 in charitable contributions annually. Evidence supports

the conclusion of the trial court that there was a material

change in circumstances warranting an increase in wife's spousal

Accordingly, the decision of the circuit court is summarily

affirmed.

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