Michael E. Vanderford v. Tommie Adelia Vanderford

• Court: Court of Appeals of Virginia
• Decided: December 8, 1998
• Docket: 1314984
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

MICHAEL E. VANDERFORD MEMORANDUM OPINION * v. Record No. 1314-98-4 PER CURIAM DECEMBER 8, 1998 TOMMIE ADELIA VANDERFORD

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY David T. Stitt, Judge (Thomas F. Koerner, Jr., on brief), for appellant.

(Richard P. Buzan, on brief), for appellee.

Michael E. Vanderford (husband) appeals the decision of the

circuit court denying his motion to eliminate spousal support

paid to Tommie A. Vanderford (wife). Husband contends that the

trial court erred by (1) failing to terminate spousal support

where the amount wife received as her share of husband's pension

exceeded the amount she received as spousal support; and (2)

adopting a percentage reduction formula to determine wife's

spousal support. 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. See Rule 5A:27.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.

- 1 - Failure to Eliminate Spousal Support

"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). As the party seeking to modify spousal support,

husband was required to prove that the material change in

circumstances warranted a modification of support. See Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28,

30 (1989). The parties agreed that there had been a material

change in circumstances since entry of the initial spousal

support award, and agreed that husband was not underemployed.

The trial court expressly rejected husband's contention that

the payout from his pension constituted a material change in

circumstances. Rather, the court found that the payout "was

contemplated on the face of the property settlement agreement."

The trial court also found no evidence to support husband's

testimony that the parties agreed that spousal support would

cease once the payout began. As noted by the trial court, "if

that had, in fact, been the agreement of the parties, that the

spousal support would stop when the pension kicked in, then the

property settlement agreement should have said that. It

doesn't."

Under Code § 20-107.1, the trial court is required to

consider the parties' income when setting the amount of spousal

- 2 - support. Both parties presented evidence of their current

expenses and income. Wife's gross monthly income from her

employment was $1,274, and her share of the monthly pension

benefits was $1,894. Wife's monthly listed expenses totaled

approximately $3,011. The trial court noted that the expenses of

both parties were reasonable. The court found credible wife's

explanations for her increased expenses "particularly because a

substantial portion of those increases were in the health expense

field, and also things related to her personal situation." Wife

indicated that she continued to incur additional debt each month

when she was receiving $1,700 in monthly spousal support.

Husband's monthly income totaled almost $5,250, with expenses of

$3,160, excluding any spousal support payments. Thus, husband

was in a better financial position than wife. We find no error

in the trial court's decision not to eliminate wife's spousal

support.

Percentage Reduction in Support Husband also contends that the trial court erred by adopting

a mathematic formula as the basis for reducing wife's spousal

support. We find no indication that husband raised this issue

below. The Court of Appeals will not consider an argument on

appeal which was not presented to the trial court. See Jacques

v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)

(citing Rule 5A:18).

Moreover, husband concedes that the trial court considered

- 3 - the statutory factors before making its decision. The trial

court's recitation of and consideration of the parties' income,

expenses, and other statutory factors demonstrates that the trial

court did not merely apply a formula to determine the amount of

spousal support.

Accordingly, the decision of the circuit court is summarily

affirmed.

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