COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank Argued at Salem, Virginia
PEYTON L. MORGAN, III MEMORANDUM OPINION * BY v. Record No. 1402-00-3 JUDGE ROSEMARIE ANNUNZIATA FEBRUARY 6, 2001 KATHERINE ANN ROSE
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Richard S. Miller, Judge
Patricia McAdams Gibbons (Patricia McAdams Gibbons, P.C., on brief), for appellant.
No brief or argument for appellee.
The appellant, Peyton Morgan, III, appeals the decision of
the trial court reducing his spousal support obligation owed to
his former spouse, Katherine Rose, by an amount he contends is not
supported by the evidence. He specifically contends the trial
court erred in failing: (1) to determine whether his former
spouse was underemployed, thus justifying an imputation of income;
(2) to award a reduction of support commensurate with the material
change in circumstance established by the evidence; and (3) to
make a finding at the hearing of the actual amount of income
received by his former spouse and her need for continued support.
Morgan also contends the trial court erred in amending the
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. statement of facts submitted by Morgan. For the following
reasons, we affirm.
BACKGROUND
On appeal we review the evidence in the light most favorable
to Rose, the party prevailing below. Richardson v. Richardson, 30
Va. App. 341, 346, 516 S.E.2d 726, 728-29 (1999). The parties
were married on April 23, 1983 and were divorced by final decree
entered on September 2, 1993. The parties' one minor child
resides with Morgan. At the time of the divorce, spousal support
in the amount of $750 per month was awarded to Rose.
In July, 1996, Morgan petitioned the City of Lynchburg
Circuit Court for a reduction in spousal support. The court
reduced spousal support from $750 to $650 per month. On December
9, 1999, Morgan petitioned the City of Lynchburg Juvenile and
Domestic Relations District Court for a further reduction and/or
termination of spousal support. The court denied the petition,
and Morgan appealed that ruling to the City of Lynchburg Circuit
Court. By order of the circuit court entered June 1, 2000,
spousal support was decreased by $50 and Morgan was ordered to pay
Rose $600 per month. This appeal followed.
At the hearing in circuit court, Morgan alleged there had
been a material change in the financial circumstances of the
parties that justified a modification in the amount of spousal
support. Rose had secured a part-time job in the thirteen months
that had elapsed since the former court-ordered support. Rose's
- 2 - job is seasonal; she works at a plant nursery except during the
months of January and February and in late summer when full-time
work at the nursery is not available. Her gross monthly pay,
averaged on an annual basis, is a little over $1,000 per month.
The court found this income represented "only a small change in
circumstances since the divorce." Although Morgan alleged Rose
was underemployed, he presented no evidence to establish the
nature and level of any education, skills or other work
experience Rose had, nor did Morgan present evidence on the
availability of employment positions commensurate with Rose's
education, skill level or experience. The record also reflects
Rose receives $20,000 annually as a gift from her parents, a
circumstance the court found had not changed since the divorce.
According to the financial statement received in evidence,
Rose's needs remained essentially the same as they were in 1996,
the date of the last support modification, except for consumer
debt which had increased from $268 per month to $2,348 per
month.
In 1998, Morgan was involuntarily terminated from his job
as a manager of engineering-technical services at Ericsson in
Lynchburg where he earned $73,000 per year. He was awarded
severance pay for twenty-three weeks, and ultimately went into
business for himself after he was unsuccessful in obtaining a
lateral entry position with First Colony Insurance and
Framatome. He declined employment near his former level in
- 3 - Northern Virginia on the ground it would require relocation for
both himself and the parties' daughter who visits with Rose
weekly. Morgan determined that "relocating would have radically
altered his daughter's relationship with her mother" and that
the move would not be in their daughter's best interest. The
court found Morgan had voluntarily decided to not seek a
position of comparable pay, and to become self-employed at a
lesser income. 1 Morgan earned $26,000 in 1999 and reported
expected gross receipts in the year 2000 in the amount of
$50,000, which would net him approximately $43,000 in business
income. Morgan expected his income from his self-employment to
increase in the future. His financial statement showed a
monthly deficit in the amount of $510.63 which was paid by his
present wife.
ANALYSIS
The decision to award spousal support and the determination
of the amount to award are matters within the discretion of the
trial court. Stubblebine v. Stubblebine, 22 Va. App. 703, 707,
473 S.E.2d 72, 74 (1996). The court's decision will not be
disturbed on appeal unless plainly wrong or without evidence to
support it. Reece v. Reece, 22 Va. App. 368, 372, 470 S.E.2d
148, 151 (1996).
1 Although Morgan now alleges on appeal that the court erred in finding he was voluntarily underemployed, Morgan never objected at the trial level to the court's finding; therefore, he failed to preserve this issue for appeal. Rule 5A:18.
- 4 - Morgan first contends the trial court erred in failing to
impute income to Rose. We disagree. In the absence of evidence
of Rose's abilities and the availability of other positions for
which she could reasonably be employed, the trial court had no
basis for determining that she was underemployed and that
imputation was warranted. Id. at 374-75, 470 S.E.2d at 151-52.
Morgan next contends the trial court erred in failing to
award a reduction of support commensurate with the "material
change in circumstances" established in the case. Specifically,
he contends that the trial court failed to consider the gift
income Rose received from her parents in the amount of $20,000
annually. However, the court found that Rose had been receiving
the $20,000 annually since before the parties separated;
therefore, the receipt of gift income did not constitute a
change of circumstance from the original divorce decree and
spousal support award. Although Morgan alleges on appeal that
the $20,000 parental gift had never before been considered by a
court in determining the award amount, there is no evidence in
the limited record we have before us on appeal to support that
allegation. White v. Morano, 249 Va. 27, 30, 452 S.E.2d 856,
858 (1995) ("[T]he onus is upon the appellant to provide the
reviewing court with a sufficient record from which it can be
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COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank Argued at Salem, Virginia
PEYTON L. MORGAN, III MEMORANDUM OPINION * BY v. Record No. 1402-00-3 JUDGE ROSEMARIE ANNUNZIATA FEBRUARY 6, 2001 KATHERINE ANN ROSE
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Richard S. Miller, Judge
Patricia McAdams Gibbons (Patricia McAdams Gibbons, P.C., on brief), for appellant.
No brief or argument for appellee.
The appellant, Peyton Morgan, III, appeals the decision of
the trial court reducing his spousal support obligation owed to
his former spouse, Katherine Rose, by an amount he contends is not
supported by the evidence. He specifically contends the trial
court erred in failing: (1) to determine whether his former
spouse was underemployed, thus justifying an imputation of income;
(2) to award a reduction of support commensurate with the material
change in circumstance established by the evidence; and (3) to
make a finding at the hearing of the actual amount of income
received by his former spouse and her need for continued support.
Morgan also contends the trial court erred in amending the
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. statement of facts submitted by Morgan. For the following
reasons, we affirm.
BACKGROUND
On appeal we review the evidence in the light most favorable
to Rose, the party prevailing below. Richardson v. Richardson, 30
Va. App. 341, 346, 516 S.E.2d 726, 728-29 (1999). The parties
were married on April 23, 1983 and were divorced by final decree
entered on September 2, 1993. The parties' one minor child
resides with Morgan. At the time of the divorce, spousal support
in the amount of $750 per month was awarded to Rose.
In July, 1996, Morgan petitioned the City of Lynchburg
Circuit Court for a reduction in spousal support. The court
reduced spousal support from $750 to $650 per month. On December
9, 1999, Morgan petitioned the City of Lynchburg Juvenile and
Domestic Relations District Court for a further reduction and/or
termination of spousal support. The court denied the petition,
and Morgan appealed that ruling to the City of Lynchburg Circuit
Court. By order of the circuit court entered June 1, 2000,
spousal support was decreased by $50 and Morgan was ordered to pay
Rose $600 per month. This appeal followed.
At the hearing in circuit court, Morgan alleged there had
been a material change in the financial circumstances of the
parties that justified a modification in the amount of spousal
support. Rose had secured a part-time job in the thirteen months
that had elapsed since the former court-ordered support. Rose's
- 2 - job is seasonal; she works at a plant nursery except during the
months of January and February and in late summer when full-time
work at the nursery is not available. Her gross monthly pay,
averaged on an annual basis, is a little over $1,000 per month.
The court found this income represented "only a small change in
circumstances since the divorce." Although Morgan alleged Rose
was underemployed, he presented no evidence to establish the
nature and level of any education, skills or other work
experience Rose had, nor did Morgan present evidence on the
availability of employment positions commensurate with Rose's
education, skill level or experience. The record also reflects
Rose receives $20,000 annually as a gift from her parents, a
circumstance the court found had not changed since the divorce.
According to the financial statement received in evidence,
Rose's needs remained essentially the same as they were in 1996,
the date of the last support modification, except for consumer
debt which had increased from $268 per month to $2,348 per
month.
In 1998, Morgan was involuntarily terminated from his job
as a manager of engineering-technical services at Ericsson in
Lynchburg where he earned $73,000 per year. He was awarded
severance pay for twenty-three weeks, and ultimately went into
business for himself after he was unsuccessful in obtaining a
lateral entry position with First Colony Insurance and
Framatome. He declined employment near his former level in
- 3 - Northern Virginia on the ground it would require relocation for
both himself and the parties' daughter who visits with Rose
weekly. Morgan determined that "relocating would have radically
altered his daughter's relationship with her mother" and that
the move would not be in their daughter's best interest. The
court found Morgan had voluntarily decided to not seek a
position of comparable pay, and to become self-employed at a
lesser income. 1 Morgan earned $26,000 in 1999 and reported
expected gross receipts in the year 2000 in the amount of
$50,000, which would net him approximately $43,000 in business
income. Morgan expected his income from his self-employment to
increase in the future. His financial statement showed a
monthly deficit in the amount of $510.63 which was paid by his
present wife.
ANALYSIS
The decision to award spousal support and the determination
of the amount to award are matters within the discretion of the
trial court. Stubblebine v. Stubblebine, 22 Va. App. 703, 707,
473 S.E.2d 72, 74 (1996). The court's decision will not be
disturbed on appeal unless plainly wrong or without evidence to
support it. Reece v. Reece, 22 Va. App. 368, 372, 470 S.E.2d
148, 151 (1996).
1 Although Morgan now alleges on appeal that the court erred in finding he was voluntarily underemployed, Morgan never objected at the trial level to the court's finding; therefore, he failed to preserve this issue for appeal. Rule 5A:18.
- 4 - Morgan first contends the trial court erred in failing to
impute income to Rose. We disagree. In the absence of evidence
of Rose's abilities and the availability of other positions for
which she could reasonably be employed, the trial court had no
basis for determining that she was underemployed and that
imputation was warranted. Id. at 374-75, 470 S.E.2d at 151-52.
Morgan next contends the trial court erred in failing to
award a reduction of support commensurate with the "material
change in circumstances" established in the case. Specifically,
he contends that the trial court failed to consider the gift
income Rose received from her parents in the amount of $20,000
annually. However, the court found that Rose had been receiving
the $20,000 annually since before the parties separated;
therefore, the receipt of gift income did not constitute a
change of circumstance from the original divorce decree and
spousal support award. Although Morgan alleges on appeal that
the $20,000 parental gift had never before been considered by a
court in determining the award amount, there is no evidence in
the limited record we have before us on appeal to support that
allegation. White v. Morano, 249 Va. 27, 30, 452 S.E.2d 856,
858 (1995) ("[T]he onus is upon the appellant to provide the
reviewing court with a sufficient record from which it can be
determined whether the trial court erred as the appellant
alleges."). Therefore, we cannot find the trial court erred in
finding the receipt of the gift income did not constitute a
- 5 - change in circumstance warranting a reduction in the support
award.
make a finding of the actual amount of income received by Rose
and in failing to find a continued need for support. Morgan
cites no authority in support of the contention that the court
must make an explicit finding of income and need as a predicate
to modifying support, and we have found none. We therefore find
his contentions to be without merit.
Similarly, Morgan's final contention that the trial court
erred in "altering the Statement of Facts by adding a Memorandum
that was written by the trial Judge after the hearing" is
without merit. Under Rule 5A:8, the trial judge is responsible
for certifying the written statement of facts. The rule
specifically provides that "[a]t any time while the record
remains in the office of the clerk of the trial court, the trial
judge may, after notice to counsel and hearing, correct the
transcript or written statement." In this case, the trial court
held a hearing on June 28, 2000 concerning the content of the
statement of facts. At that hearing, the trial court made known
to the parties the corrections and additions it was making to
the statement, and both parties signed the amended statement.
Because we find the trial court's actions were authorized by
Rule 5A:8, we find no merit in Morgan's final contention.
- 6 - For the reasons stated in this opinion, we affirm.
Affirmed.
- 7 -