Robert Hyer Allison v. Marleen McBride Allison

• Court: Court of Appeals of Virginia
• Decided: April 16, 1996
• Docket: 1516954
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Overton Argued at Alexandria, Virginia

ROBERT HYER ALLISON

v. Record No. 1516-95-4 MEMORANDUM OPINION * BY JUDGE NELSON T. OVERTON MARLEEN McBRIDE ALLISON APRIL 16, 1996

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Jack B. Stevens, Judge Gary V. Davis for appellant.

James A. Watson, II (Surovell, Jackson, Colten, & Dugan, P.C., on brief), for appellee.

Robert Hyer Allison, husband, appeals the denial of his

motion to reduce spousal support to Marleen McBride Allison,

wife. Finding no error in the lower court's decision, we affirm

the decision of the circuit court.

Husband and wife were divorced in 1993 and husband was

ordered to pay spousal support to wife. Husband stopped working

in November 1994 and then petitioned the court for a reduction in

support based on this change in circumstances. His monthly

income had fallen from $5,777.34 to $5,373.00. After a hearing

at which both husband and wife gave testimony and other evidence,

the trial judge denied the motion to reduce husband's spousal

support. In his order, he ruled that "the Defendant has failed

to prove that his involuntary cessation of employment is a change

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. warranting a modification of the initial support award."

Husband asserts that the court erred by not considering all

of the factors set forth in Code § 20-107.1 governing spousal

support awards. We disagree. Section 20-107.1 applies to the

initial setting of spousal support. "If the court determines

that an award should be made, it shall, in determining the

amount, consider the [listed factors]." Code § 20-107.1. The

consideration of all of the factors in Code § 20-107.1 is not

required when a judge rules upon a motion to reduce the award

under Code § 20-109. Cf. Yohay v. Ryan, 4 Va. App. 559, 567, 359

S.E.2d 320, 324-25 (1987) (holding that when determining

reduction of child support award under Code § 20-108, the court

is not required to consider all of Code § 20-107.2 factors used

to initially set the award). The standard for a warranted

modification of spousal support is rather whether the moving

party proves "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

Furr v. Furr, 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992).

The court in this case expressly found that no such change

had occurred after considering all evidence of income to each of

the parties. Husband argues that the judge improperly refused to

hear evidence pertaining to wife's net worth and assets. His

argument is unpersuasive. The judge was not required to consider

wife's separate estate assets in determining a modification of

- 2 - spousal support. See Klotz v. Klotz, 203 Va. 677, 680, 127

S.E.2d 104, 106 (1962). The wife's income is instead the crucial

issue, and the record demonstrates that wife fully disclosed her

income through testimony and interrogatories. The judge likewise

considered all of husband's income. To the extent that husband

had the ability to withdraw from his retirement accounts without

penalty, the judge properly considered this source of income.

The record supports the finding that no material change of

circumstances warranted a reduction in spousal support. As such,

the decision of the trial court will be upheld. Husband also appeals the decision of the court concerning

attorneys' fees. Husband failed, however, to include any

transcript or statement of facts of the proceedings in question,

leaving this Court without a means to determine the issue. We

therefore dismiss that portion of the appeal. Turner v.

Commonwealth, 2 Va. App. 96, 100, 341 S.E.2d 400, 402 (1986). Affirmed in part and dismissed in part.

- 3 -