COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Cole Argued at Richmond, Virginia
KRISHAN RANA MEMORANDUM OPINION * BY v. Record No. 1808-99-2 JUDGE JAMES W. BENTON, JR. APRIL 11, 2000 SHAKUNTLA RANA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY William R. Shelton, Judge
Lawrence D. Diehl for appellant.
Mary Burkey Owens (Ishnelia I. Gubb; Cowen & Owen, on brief), for appellee.
Krishan Rana appeals the trial judge's denial of his motion
to modify spousal support paid to Shakuntla Rana, his former wife.
The husband contends the trial judge erred by failing to find (1)
that a material change in circumstances resulted from his
increased debt and the wife's lessened need for support, (2) that
the wife's employment following the divorce and subsequent
unemployment was a material change of circumstances, (3) that the
wife was voluntarily unemployed, and (4) that the evidence
contained sufficient proof to impute income to the wife. Both
parties seek attorney's fees and costs for this appeal. For the
reasons that follow, we affirm the trial judge's decision.
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I.
As the party seeking to modify spousal support, the husband
bore the burden "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); see also Code § 20-109. "[T]he 'circumstances' which
make 'proper' an increase, reduction or cessation of spousal
support under Code § 20-109 are financial and economic ones."
Hollowell v. Hollowell, 6 Va. App. 417, 419, 369 S.E.2d 451,
452-53 (1988). "We will not disturb the trial judge's decision
where it is based on an ore tenus hearing, unless it is 'plainly
wrong or without evidence to support it.'" Furr v. Furr, 13 Va.
App. 479, 481, 413 S.E.2d 72, 73 (1992) (citation omitted).
II.
The husband contends that several changes occurring after the
entry of the divorce decree were material changes in
circumstances. The husband testified that his current expenses
greatly exceeded his expenses at the time of the divorce and that
he had a monthly deficit of $2,745. The husband also testified
that he had almost no debt at the time of the divorce and now had
$50,000 in debt. The husband presented evidence that wife's
current expenses were $2,326 and that her expenses at the time of
the divorce were $3,663.
Although the husband testified that his spousal support
payments increased his debt, he admitted on cross-examination that
- 2 - his debts included attorney's fees and other costs. The husband
also admitted that his claimed expenses included costs
attributable to his recently purchased new home and his current
spouse, who is not employed outside their home. Although he
claimed as an expense a monthly payment of $400 to a retirement
account, he admitted that the payment was voluntary. The husband
owns four pieces of rental property and testified at the hearing
that they produced no income. An April 1999 loan application,
however, showed that he claimed $2,500 in monthly income from
those properties. The husband also admitted that he overstated
several of the loan amounts he was obligated to repay. The
evidence further proved that although the husband's income
increased from approximately $58,000 to $68,000, he had listed his
income as $62,458.
The wife admitted that her monthly expenses had decreased
since the time of the divorce decree. She received the marital
residence under the terms of the decree. She testified, however,
that because the husband was continually late in paying spousal
support, she incurred late payments and additional interest on the
mortgage throughout 1997 and 1998. Concerned that the lender
would foreclose on the property, the wife sold her home. That
evidence was uncontested. After the sale, the wife's housing
expenses decreased from $1,708 for a mortgage and $465 for
utilities to $510 for rent and $200 for utilities.
- 3 - Husband contends that in addition to changes in their income
and expenses, the evidence proved the wife was voluntarily
unemployed. The evidence established that the wife was not
employed at the time of the divorce but began working at a retail
store shortly after the decree was entered. She testified that
she worked because she had no money for food when the husband's
payments were late. She continued to work at the store for
approximately two and one-half years and earned $5.75 an hour.
Although the wife admitted that she could understand simple
English, she testified that language difficulties required her to
call her manager to resolve problems with customers. At the time
of the hearing, however, the wife was not working and had not
worked since she relocated to Blacksburg in December 1998
following the sale of her home.
The wife's evidence also established that because husband
refused to allow her to drive during the marriage, she cannot
drive and must rely upon public transportation or her sons. After
she sold her house, she moved to Blacksburg to be near one of her
sons. Although the husband's expert testified that wife was
immediately employable at $6.00 an hour in entry level positions,
he admitted that he had not considered wife's level of English
comprehension, the proximity of jobs to public transportation, or
that she could not apply for jobs until she replaced her green
card.
- 4 - III.
The trial judge found that husband failed to prove "a
material change in circumstances which would warrant a reduction
in spousal support." Although we agree with the husband that the
evidence proved changes in the parties' economic circumstances,
see Hollowell, 6 Va. App. at 419, 369 S.E.2d at 452, we cannot say
that the trial judge erred in finding that the changes did not
warrant a modification in support.
"[W]hen a material change of circumstances has occurred, the
trial court must determine whether the changed circumstances
warrant or justify a change in the amount of support." Blackburn
v. Michael, 30 Va. App. 95, 103, 515 S.E.2d 780, 784 (1999). Not
every material change of circumstances warrants a modification of
support. See id.
The moving party in a petition for modification of support is required . . . to prove both a material change in circumstances and that such change justifies an alteration in the amount of support. A material change in circumstances, standing alone, does not provide a basis for the trial court to modify its support decree. A modification is appropriate only after the court has considered the material change in circumstances in relation to . . . the present circumstances of both parties . . . .
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Cole Argued at Richmond, Virginia
KRISHAN RANA MEMORANDUM OPINION * BY v. Record No. 1808-99-2 JUDGE JAMES W. BENTON, JR. APRIL 11, 2000 SHAKUNTLA RANA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY William R. Shelton, Judge
Lawrence D. Diehl for appellant.
Mary Burkey Owens (Ishnelia I. Gubb; Cowen & Owen, on brief), for appellee.
Krishan Rana appeals the trial judge's denial of his motion
to modify spousal support paid to Shakuntla Rana, his former wife.
The husband contends the trial judge erred by failing to find (1)
that a material change in circumstances resulted from his
increased debt and the wife's lessened need for support, (2) that
the wife's employment following the divorce and subsequent
unemployment was a material change of circumstances, (3) that the
wife was voluntarily unemployed, and (4) that the evidence
contained sufficient proof to impute income to the wife. Both
parties seek attorney's fees and costs for this appeal. For the
reasons that follow, we affirm the trial judge's decision.
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I.
As the party seeking to modify spousal support, the husband
bore the burden "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); see also Code § 20-109. "[T]he 'circumstances' which
make 'proper' an increase, reduction or cessation of spousal
support under Code § 20-109 are financial and economic ones."
Hollowell v. Hollowell, 6 Va. App. 417, 419, 369 S.E.2d 451,
452-53 (1988). "We will not disturb the trial judge's decision
where it is based on an ore tenus hearing, unless it is 'plainly
wrong or without evidence to support it.'" Furr v. Furr, 13 Va.
App. 479, 481, 413 S.E.2d 72, 73 (1992) (citation omitted).
II.
The husband contends that several changes occurring after the
entry of the divorce decree were material changes in
circumstances. The husband testified that his current expenses
greatly exceeded his expenses at the time of the divorce and that
he had a monthly deficit of $2,745. The husband also testified
that he had almost no debt at the time of the divorce and now had
$50,000 in debt. The husband presented evidence that wife's
current expenses were $2,326 and that her expenses at the time of
the divorce were $3,663.
Although the husband testified that his spousal support
payments increased his debt, he admitted on cross-examination that
- 2 - his debts included attorney's fees and other costs. The husband
also admitted that his claimed expenses included costs
attributable to his recently purchased new home and his current
spouse, who is not employed outside their home. Although he
claimed as an expense a monthly payment of $400 to a retirement
account, he admitted that the payment was voluntary. The husband
owns four pieces of rental property and testified at the hearing
that they produced no income. An April 1999 loan application,
however, showed that he claimed $2,500 in monthly income from
those properties. The husband also admitted that he overstated
several of the loan amounts he was obligated to repay. The
evidence further proved that although the husband's income
increased from approximately $58,000 to $68,000, he had listed his
income as $62,458.
The wife admitted that her monthly expenses had decreased
since the time of the divorce decree. She received the marital
residence under the terms of the decree. She testified, however,
that because the husband was continually late in paying spousal
support, she incurred late payments and additional interest on the
mortgage throughout 1997 and 1998. Concerned that the lender
would foreclose on the property, the wife sold her home. That
evidence was uncontested. After the sale, the wife's housing
expenses decreased from $1,708 for a mortgage and $465 for
utilities to $510 for rent and $200 for utilities.
- 3 - Husband contends that in addition to changes in their income
and expenses, the evidence proved the wife was voluntarily
unemployed. The evidence established that the wife was not
employed at the time of the divorce but began working at a retail
store shortly after the decree was entered. She testified that
she worked because she had no money for food when the husband's
payments were late. She continued to work at the store for
approximately two and one-half years and earned $5.75 an hour.
Although the wife admitted that she could understand simple
English, she testified that language difficulties required her to
call her manager to resolve problems with customers. At the time
of the hearing, however, the wife was not working and had not
worked since she relocated to Blacksburg in December 1998
following the sale of her home.
The wife's evidence also established that because husband
refused to allow her to drive during the marriage, she cannot
drive and must rely upon public transportation or her sons. After
she sold her house, she moved to Blacksburg to be near one of her
sons. Although the husband's expert testified that wife was
immediately employable at $6.00 an hour in entry level positions,
he admitted that he had not considered wife's level of English
comprehension, the proximity of jobs to public transportation, or
that she could not apply for jobs until she replaced her green
card.
- 4 - III.
The trial judge found that husband failed to prove "a
material change in circumstances which would warrant a reduction
in spousal support." Although we agree with the husband that the
evidence proved changes in the parties' economic circumstances,
see Hollowell, 6 Va. App. at 419, 369 S.E.2d at 452, we cannot say
that the trial judge erred in finding that the changes did not
warrant a modification in support.
"[W]hen a material change of circumstances has occurred, the
trial court must determine whether the changed circumstances
warrant or justify a change in the amount of support." Blackburn
v. Michael, 30 Va. App. 95, 103, 515 S.E.2d 780, 784 (1999). Not
every material change of circumstances warrants a modification of
support. See id.
The moving party in a petition for modification of support is required . . . to prove both a material change in circumstances and that such change justifies an alteration in the amount of support. A material change in circumstances, standing alone, does not provide a basis for the trial court to modify its support decree. A modification is appropriate only after the court has considered the material change in circumstances in relation to . . . the present circumstances of both parties . . . . Thus, in a petition for reduction of support, the trial court must assess whether the requested reduction, based on a material change in circumstances, is justified in light of the overall circumstances of both parties . . . .
- 5 - Yohay v. Ryan, 4 Va. App. 559, 566, 359 S.E.2d 320, 324 (1987);
see also Furr, 13 Va. App. at 481, 413 S.E.2d at 73.
The evidence proved that the husband's income had
increased; however, it raised doubt about the extent of the
husband's actual debts. Indeed, the evidence concerning his
claim of increased expenses was highly problematic.
Furthermore, the evidence proved that as a result of the
husband's tardy payment of spousal support, the wife's
circumstances drastically changed. She testified that she had
to work in order to buy food and that she had to sell her home
to avoid foreclosure. The trial judge could have found that the
wife's move to Blacksburg was a consequence of this disruption
and of her need to be in a place where she could rely upon her
son for her transportation needs.
Furthermore, the evidence would support a finding that the
wife's initial employment was caused by the need to have income
when the husband's payments were tardy and that her subsequent
unemployment was not voluntary. "Whether a person is voluntarily
unemployed or underemployed is a factual determination."
Blackburn, 30 Va. App. at 102, 515 S.E.2d at 784.
Based upon the evidence in the record, we find no error in
the trial judge's finding that the husband failed to prove "a
material change in circumstances which would warrant a reduction
in spousal support." In view of the failure of the evidence to
- 6 - prove the wife was voluntarily unemployed, we need not address
the issue of imputation of income.
IV.
Both the husband and the wife request attorney's fees and
costs incurred in this appeal. See O'Loughlin v. O'Loughlin, 23
Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). We deny both
requests.
Accordingly, we affirm the trial judge's decision.
Affirmed.
- 7 -