Richard N. Smull v. Karen W. Smull

• Court: Court of Appeals of Virginia
• Decided: July 20, 1999
• Docket: 1308984
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Senior Judge Cole Argued at Richmond, Virginia

RICHARD N. SMULL MEMORANDUM OPINION * BY v. Record No. 1308-98-4 JUDGE JERE M. H. WILLIS, JR. JULY 20, 1999 KAREN W. SMULL

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY M. Langhorne Keith, Judge

David L. Duff (David L. Duff, P.C., on brief), for appellant.

Stefan C. Long (Stefan C. Long, P.C., on brief), for appellee.

On appeal from the denial of his motion to reduce his

spousal support obligation, Richard N. Smull contends that the

trial court erred (1) in requiring him to prove that no jobs

were available in his career field, and (2) in awarding to Karen

W. Smull all of her costs and attorney's fees. We affirm the

judgment of the trial court.

I. MOTION FOR SPOUSAL SUPPORT REDUCTION

Richard and Karen Smull were divorced on March 7, 1988. On

March 12, 1998, Richard moved for a reduction in his spousal

support obligation, asserting that he had experienced a material

change in circumstances warranting a reduction in the support

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. required by the divorce decree. The trial court denied the

reduction and denied Richard's motion for reconsideration.

A party seeking to modify spousal support is "required 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).

As we further noted in Hammers [v. Hammers, 216 Va. 30, 216 S.E.2d 20 (1975)], a party seeking a reduction in support payments has additional burdens: "[H]e must make a full and clear disclosure relating to his ability to pay. He must also show that his lack of ability to pay is not due to his own voluntary act or because of his neglect."

Edwards v. Lowery, 232 Va. 110, 112-13, 348 S.E.2d 259, 260

(1986) (citation omitted).

"When a trial court hears evidence ore tenus, its findings

are entitled to the same 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).

After retiring from the Air Force just before the divorce,

Richard found employment at Systems Planning Corporation

("SPC"), where his primary duty was to act as a liaison to the

Taiwan Economic Relations Office. After a downturn in the Asian

economy, the Taiwanese Office modified its contract with SPC

from a retainer to an "as needed" basis. As a result, Richard's

- 2 - hours at SPC, and his income from that organization, were

greatly reduced.

Around the same time, Richard began working as a wine

wholesaler in a business managed by his current wife. When his

hours at SPC were reduced, he began spending more time at the

wholesale wine venture, which produced much less income. The

trial court found that Richard had made no effort to secure

employment other than by SPC in his professional field and that

his decision to devote his time to the lower paying wine

wholesaling enterprise was voluntary. Thus, his reduction in

income did not require a corresponding reduction in his spousal

support obligation. See Dept. of Social Services v. Ewing, 22

Va. App. 466, 470-73, 470 S.E.2d 608, 610-13 (1996).

Richard argues that the trial court erroneously required

him to prove that no jobs were available within his professional

field. The record does not support this contention. At the

hearing, Richard produced no evidence that he had sought work in

his field. He produced only the testimony of his supervisor at

SPC, who stated that no more work was available for Richard at

that firm. Richard made no attempt to find work in his

professional field beyond a single employer, SPC. The trial

court did not err in requiring proof of a greater effort.

II. COSTS AND FEES

An award of attorney's fees and costs is a matter submitted

to the sound discretion of the trial court and will be overruled

- 3 - on appeal only for an abuse of discretion. See Graves v.

Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). "We

have said that 'the key to a proper award of counsel fees . . .

[is] reasonableness under all of the circumstances revealed by

the record.'" Westbrook v. Westbrook, 5 Va. App. 446, 458, 364

S.E.2d 523, 530 (1988).

Richard initiated these proceedings by his motion to reduce

spousal support. The trial court denied that motion. The trial

court took into account the relative financial circumstances of

the parties and determined that Richard should pay Karen's fees

and costs. Sufficient evidence in the record supports this

decision.

The judgment of the trial court is affirmed.

Affirmed.

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