COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia
GEORGE ROGER BARTON
OPINION BY
v. Record No. 0108-99-3 JUDGE RUDOLPH BUMGARDNER, III
DECEMBER 21, 1999
LOUVENIA C. BARTON
FROM THE CIRCUIT COURT OF BEDFORD COUNTY
James W. Updike, Jr., Judge
J. Emmette Pilgreen, IV (Harvey S. Lutins;
Harvey S. Lutins & Associates, on brief), for
appellant.
David D. Beidler (Legal Aid Society of
Roanoke Valley, on brief), for appellee.
George Roger Barton (husband) appeals the denial of his
motion to reduce spousal support to Louvenia C. Barton (wife).
The husband claims the trial court erred in finding that he did
not show a material change in circumstances warranting a
modification. Finding no error, we affirm.
The parties were married July 16, 1994 and separated April
4, 1996. They had no children. The trial court heard the
evidence of spousal support on August 6, 1997, but nothing
indicates that it announced its decision before entering the
final decree of divorce on October 16, 1997. In that decree,
the trial court ordered the husband to pay $450 per month in
permanent spousal support.
On November 10, 1997, the husband filed a petition in the
juvenile and domestic relations district court to suspend or
reduce the support obligation. He appealed an adverse decision
to the circuit court, which heard the matter de novo October 1,
1998. The husband proffered a consent order entered on
September 23, 1997 requiring him to pay child support for an
illegitimate child born in August 1996. The consent support
order was entered between the hearing on permanent spousal
support and the entry of the final decree setting that support.
On appeal, the husband argues the trial court erred in
refusing to consider his obligation to support his illegitimate
child. He contends the trial court precluded him from showing a
material change in circumstances by failing to consider the
September 23, 1997 order.
"In a petition for modification of child support and
spousal support, the burden is on the moving party to prove [by
a preponderance of the evidence] a material change in
circumstances that warrants modification of support."
Richardson v. Richardson, 30 Va. App. 341, 347, 516 S.E.2d 726,
729 (1999) (citation omitted). The petitioner must demonstrate
a material change in circumstances from the most recent support
award. See Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d
117, 119 (1991) ("following entry of a final decree . . . a
party seeking a change in court-ordered . . . support" must
prove a material change); Keel v. Keel, 225 Va. 606, 611, 303
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S.E.2d 917, 921 (1983) (child support); Layman v. Layman, 25 Va.
App. 365, 367, 488 S.E.2d 658, 659 (1997) (court considered
change occurring after entry of final order establishing
support); Street v. Street, 25 Va. App. 380, 488 S.E.2d 665
(1997) (en banc) (considering husband's sale of business after
entry of decree establishing support); Moreno v. Moreno, 24 Va.
App. 190, 195, 480 S.E.2d 792, 795 (1997) (spousal support).
The material change must relate to either the need for support
or the ability to pay. See Richardson, 30 Va. App. at 347, 516
S.E.2d at 729; Moreno, 24 Va. App. at 195, 480 S.E.2d at 795.
"In the absence of a material change in circumstances,
reconsideration of support . . . would be barred by principles
of res judicata." Hiner v. Hadeed, 15 Va. App. 575, 580, 425
S.E.2d 811, 814 (1993) (child support); see also Hammers v.
Hammers, 216 Va. 30, 31, 216 S.E.2d 20, 21 (1975).
In this case, the husband showed no material change in
circumstances that occurred after the entry of the spousal
support order on October 16, 1997. The husband knew about the
child support order before the trial court entered its final
decree fixing his spousal support obligation. He would have
known of his obligation to support his child before the court
ordered him to do so on September 23, 1997. The consent order
would have required negotiation, preparation, circulation, and
presentation before that date.
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When fashioning spousal support awards, courts "must
consider all relevant evidence concerning the needs of the
[recipient spouse] and the ability of the [payor] to provide for
those needs." Hiner, 15 Va. App. at 578, 425 S.E.2d at 813
(citations omitted). Courts must make support awards based upon
"current circumstances and what the circumstances will be
'within the immediate or reasonably foreseeable future.'"
Srinivasan v. Srinivasan, 10 Va. App. 728, 735, 396 S.E.2d 675,
679 (1990) (citation omitted). In considering a denial of a
request for a reduction of support payments, courts must look to
"objective evidence available at the time of the previous award
in order to assess what increases in expenses might reasonably
have been expected." Furr v. Furr, 13 Va. App. 479, 482, 413
S.E.2d 72, 74 (1992). See also Blank v. Blank, 10 Va. App. 1,
4, 389 S.E.2d 723, 724 (1990).
The husband's obligation to support an illegitimate child
was not an uncertain future circumstance. See Jacobs v. Jacobs,
219 Va. 993, 995, 254 S.E.2d 56, 58 (1979) (material "changes
are not fairly predictable"). He had the opportunity to provide
the trial court with the reasonably foreseeable obligation to
support the child at the August 8, 1997 hearing. For whatever
reason he failed to do that, the husband still had ample time to
inform the trial court of the consent child support order before
it decreed spousal support. Cf. Hughes v. Gentry, 18 Va. App.
318, 325, 443 S.E.2d 448, 453 (1994) (prejudice to moving party
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outweighed where he "has failed to act diligently in discovering
[relevant] evidence or, . . ., has withheld evidence for
personal or tactical reasons").
The child support order was not a change of circumstance;
it was not a development that had occurred unexpectedly. The
order was merely new evidence of an existing circumstance which
the husband had chosen not to present. The husband cannot
withhold known, relevant information and then claim that the
information withheld establishes a change of circumstance. The
husband failed to show a material change in circumstances
warranting a modification in his spousal support obligation.
Accordingly, we affirm the trial court.
Affirmed.
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Benton, J., concurring.
I agree with the majority that the consent order, which
required the husband to pay child support, was entered prior to
the spousal support award and, therefore, could not provide a
basis to support a modification of the spousal support award.
Thus, I too would affirm the judgment entered December 11, 1998.
I do not join the suggestion contained in the last two
paragraphs of the majority opinion that the husband's moral
obligation to support the child, although not determined by
court order, was a circumstance that, if proved at the August 6,
1997 hearing, might have entitled him to relief in the
determination of spousal support. The order fixing his child
support was the event that would constitute a change in
circumstances that might have entitled him to relief in the
determination of spousal support. Until that order was entered,
his monetary obligation had not been determined; thus, the trial
judge would have had no basis for assessing an expense in
determining his spousal support obligation. Cf. Kaplan v.
Kaplan, 21 Va. App. 542, 548, 466 S.E.2d 111, 114 (1996) (noting
that the father's knowledge at the time of the divorce
proceeding of his future change in income did not bar the
father's petition to reduce support when the actual change in
his income occurred after the divorce decree was entered).
Code § 20-108 permits the trial judge to modify a support
order based upon a finding of a change in circumstances. The
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statute provides that "[t]he court may, from time to time after
decreeing as [to custody and support of minor children], . . .
revise and alter the decree . . . as the circumstances of the
parents and benefit of the children may require." Id. The
statute also provides that "[n]o support order may be
retroactively modified." Id. Code § 20-108 reflects a policy
that, absent special circumstances, the event giving rise to a
petition for modification based on changed circumstances must
occur "after [the trial judge has] decree[d] as provided in
[Code] § 20-107.2." Id. Cf. Hughes v. Gentry, 18 Va. App. 318,
321, 443 S.E.2d 448, 450 (1994) (holding that in applying Code
§ 20-108 in a custody proceeding the trial judge must determine
"whether there has been a change of circumstances since the most
recent . . . award").
In this case, the consent order, which gave rise to the
husband's obligation to support the child, was entered September
23, 1997, three weeks before entry of the divorce decree fixing
the amount of spousal support. Although the evidentiary hearing
regarding spousal support had already occurred, the husband made
no effort to present the consent order to the trial judge for
consideration in setting spousal support. Clearly, if he had
done so and had been unsuccessful in reopening the proceeding,
see Rowe v. Rowe, 24 Va. App. 123, 144, 480 S.E.2d 760, 770
(1997) (holding that "[t]he granting or denying of a motion to
hear additional evidence is within the sound discretion of the
trial court"), this case would be in a different posture. This
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record, however, contains no evidence of circumstances that
prohibited the husband from petitioning the judge in the divorce
proceeding to consider the obligation created by the consent
order before fixing the amount of spousal support. Thus, I
concur in the judgment. 1
1
In her brief, the wife asserts that the final order was
entered October 1, 1998. Thus, she contends we lack
jurisdiction to hear this appeal because the notice of appeal
was not timely filed. That claim lacks merit because the
October 1, 1998 order merely directed "the Clerk . . . to
forthwith deliver the . . . sum [of $4,190, which was deposited
to assure the husband's compliance,] to George R. Barton upon
proper identification." The order entered December 11, 1998
denied "the motion of [the husband] seeking a decrease or
suspension of spousal support." Husband timely appealed from
the December 11, 1998 order.
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