Robert Wayne Ingalls v. Julie Ann Ingalls
This text of Robert Wayne Ingalls v. Julie Ann Ingalls (Robert Wayne Ingalls v. Julie Ann Ingalls) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Hodges Argued at Chesapeake, Virginia
ROBERT WAYNE INGALLS MEMORANDUM OPINION * BY v. Record No. 0635-02-1 JUDGE WILLIAM H. HODGES OCTOBER 8, 2002 JULIE ANN INGALLS
FROM THE CIRCUIT COURT OF YORK COUNTY N. Prentis Smiley, Jr., Judge
Kenneth B. Murov for appellant.
McClanahan Ingles (Martin, Ingles & Ingles, Ltd., on brief), for appellee.
Robert Wayne Ingalls, husband, appeals a decision of the
trial judge denying his motion for a reduction in his spousal
support obligation to Julie Ann Ingalls, wife. Husband contends
on appeal that the trial judge erred in: (1) finding that
wife's expenses had increased nominally; (2) finding that wife's
receipt of $905 per month as her share of husband's military
retirement was not a material change in wife's income; (3)
finding that husband's income had not materially decreased; and
(4) failing to reduce husband's spousal support obligation based
on a material change in circumstances. Finding that the trial
judge did not abuse his discretion in refusing to modify the
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. spousal support award, we affirm the decision of the trial
judge.
BACKGROUND
The parties were divorced by final decree entered on
January 20, 2000. The parties had four children who live with
wife. On April 28, 2000, the trial judge held a hearing on
several issues, including spousal support. By orders entered on
August 3, 2000 and November 13, 2001, nunc pro tunc to April 28,
2000, the trial judge ordered husband to pay wife spousal
support of $1,800 per month.
Husband retired from the military in July 2001. He
receives monthly income from civilian employment and military
retirement benefits. On November 13, 2001, husband filed a
motion for a reduction in his monthly spousal support obligation
based upon his reduction in income since his retirement.
Husband also alleged that wife's income had increased since she
had been receiving her share of his military retirement
benefits. Wife filed a motion for an increase in spousal
support on the grounds that husband's expendable income had
increased and that husband's contributions to savings and tax
deferred investments had increased since the determination of
permanent spousal support in April 2000.
The trial judge held hearings on the motions on December
11, 2001 and January 31, 2002. By order entered on February 27,
- 2 - 2002, the trial judge denied both of the motions, finding that
neither party had established a material change in circumstances
since the April 28, 2000 hearing. Both parties appealed the
February 27, 2002 order. Wife's appeal is addressed in a
separate opinion in Record No. 0758-02-1.
ANALYSIS
A party seeking modification of spousal support pursuant to
Code § 20-109, bears the burden of proving "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 Barton v. Barton, 31 Va. App. 175,
177-78, 522 S.E.2d 373, 374-75 (1999). "The material change 'must
bear upon the financial needs of the dependent spouse or the
ability of the supporting spouse to pay.'" Street v. Street, 25
Va. App. 380, 386, 488 S.E.2d 665, 668 (1997) (en banc) (citation
omitted). "The determination whether a spouse is entitled to [a
reduction or increase in spousal] support, and if so how much, is
a matter within the discretion of the [trial] court and will not
be disturbed on appeal unless it is clear that some injustice has
been done." Dukelow v. Dukelow, 2 Va. App. 21, 27, 341 S.E.2d
208, 211 (1986).
I. Wife's Expenses
At the April 28, 2000 hearing, the trial judge found that
wife's monthly expenses were $4,871. At the January 31, 2002
- 3 - hearing, wife presented evidence that her monthly expenses were
$5,167. Husband introduced bank records and check registers
from wife's bank account, arguing that the documents showed that
wife's ten-month average of expenses from January 2001 through
October 2001 was about $4,056 per month. Husband argues that
this amount is materially and substantially lower than the
$4,871 per month figure from April 28, 2000.
The trial judge found that wife's expenses included "total
expenses for her family of four children and herself" so that he
was unable to determine wife's needs as extracted from the needs
of the wife and the children. The trial judge concluded that
wife's expenses had increased "nominally" since April 2000,
about $300 per month as indicated by wife's evidence. Credible
evidence supports the trial judge's finding that, while there
had been some change in wife's expenses, it was not a material
change in circumstances.
II. Wife's Receipt of her Share of Husband's Retirement
Husband contends the trial judge erred in finding that
wife's receipt of her share of his military retirement benefits
was not a material change in circumstances. The evidence showed
that in April 2000, the trial judge found wife's income was $193
per month from interest earned on a sum of money she received as
part of the equitable distribution award. Wife presented
evidence that she had depleted much of the principal of that
- 4 - award, and the trial judge found that interest rates had
decreased since April 2000 such that the imputation of this
income was not "fair" "anymore."
The evidence also showed that wife receives $905 per month
(gross) as her share of husband's military retirement. The
trial judge found that wife "nets" about $800 per month from
that retirement money. Given that wife's expenses had nominally
increased and that she no longer had the imputed monthly income,
the trial judge did not abuse his discretion in finding that the
addition of the retirement income was not a material change in
circumstances warranting a decrease in the spousal support
award.
III. Husband's Income
Husband argues that the trial judge erred in finding that
the decrease in his income upon his retirement was not a
material change in circumstances. In April 2000, the trial
judge found that husband's monthly income was $7,387. The
evidence showed that since retirement husband was earning $7,150
per month from employment and military retirement benefits. The
difference in husband's income is $237 per month, or about 3%
less than it was in April 2000. The trial judge did not abuse
his discretion in finding that this difference was not a
material change in circumstances.
- 5 - IV. Refusal to Reduce Spousal Support Award
Husband contends the trial judge erred in not reducing his
monthly spousal support obligation. Although wife had begun
receiving a portion of husband's military retirement benefits,
wife's expenses had increased nominally since April 2000, and
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