COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Lemons and
Senior Judge Duff
Argued at Alexandria, Virginia
JOAN M. RICHARDSON
OPINION BY
v. Record No. 0834-98-4 JUDGE DONALD W. LEMONS
JULY 27, 1999
JOSEPH L. RICHARDSON
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge
Joseph A. Condo (Condo & Masterman, P.C., on
brief), for appellant.
J. Patrick McConnell (Elizabeth Laura Salans;
Odin, Feldman & Pittleman, P.C., on brief),
for appellee.
Joan M. Richardson appeals an order of the Circuit Court of
Fairfax County granting Dr. Joseph L. Richardson a reduction in
child and spousal support payments. On appeal, Mrs. Richardson
argues that the court erred in requiring her to prove that the
claimed reduction of Dr. Richardson’s income was due to his own
acts or neglect, that the burden of proof should have rested on
Dr. Richardson, and that Dr. Richardson failed to meet the
burden. Mrs. Richardson also argues that the trial court erred
in refusing to grant her request for attorney’s fees. We find
that the trial court did not err in granting Dr. Richardson a
reduction in child and spousal support payments; however, the
trial court utilized an improper factor in refusing to award
Mrs. Richardson attorney’s fees and costs. We reverse and
remand for reconsideration of Mrs. Richardson’s petition for
attorney’s fees and costs at trial.
I. BACKGROUND
Dr. Joseph L. Richardson (“Dr. Richardson”) and Joan M.
Richardson (“Mrs. Richardson”) were divorced in 1996. They have
two children born of the marriage. On May 14, 1996, the parties
entered into a marital settlement agreement (“Agreement”) which
resolved all issues of support, property, and equitable
distribution. According to the Agreement, at the time of the
divorce Dr. Richardson was earning an annual salary of $270,000
as a dentist with Reston Dental Group, P.C., and Mrs. Richardson
was earning $30,000 annually working in geriatric care
management. The Agreement provided that Dr. Richardson would
pay $4,200 per month in modifiable spousal support and $1,500
per month for each child in child support. On October 2, 1997,
Dr. Richardson filed a motion for reduction of support, alleging
that his income had been “greatly reduced from its prior level”
and that Mrs. Richardson’s financial status had improved
following entry of the final decree of divorce. Dr. Richardson
requested that his obligations to pay both child support and
spousal support be reduced and that he be awarded attorney’s
fees and costs.
At the time of the hearing on February 19, 1998, Dr.
Richardson was current with all spousal support and child
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support payments. Dr. Richardson testified that he had been a
practicing dentist with Reston Dental Group, P.C., for ten years
and was a shareholder in the practice. Dr. Richardson stated
that on August 28, 1997, he was unanimously voted out of Reston
Dental Group at a shareholders’ meeting. Dr. Richardson
testified that he “was not aware of anything [he] did to
displease the group” and that he was not given a reason for his
dismissal. The termination agreement presented by Dr.
Richardson at the hearing stated that his termination was
“involuntary” and was based upon “personality conflicts and
differences.”
Dr. Richardson admitted that he was in a serious romantic
relationship with Lisa Parker, who had been employed with Reston
Dental Group as an assistant since 1993. Dr. Richardson and
Lisa Parker resided together. Dr. Richardson testified that
Reston Dental Group had a “spoken rule” that prohibited spouses
from working in the practice but that there was “no mention of
significant others [working in the practice] ever.” Dr.
Richardson admitted that Dr. Forsbergh, another partner with
Reston Dental Group, suggested that Dr. Richardson ask Parker to
resign, stating, “since we were as the equivalent of spouses,
even though we weren’t married, that it fell under this heading
of spouses not working in the office.”
Dr. Richardson testified that after his dismissal, he
opened a practice of his own, Reston Dental Care, retaining
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approximately eighty percent of his patients from his former
practice. Dr. Richardson stated that he did not initially
receive any pay from his new practice but that he gradually
began to draw earnings from the new corporation. At the time of
the hearing, he was earning approximately $8,000 per month. Dr.
Richardson testified that he did not consider moving out of the
Reston area because he had practiced there for twenty years and
he feared that if he relocated, he would lose a large number of
patients. He also stated that he did not pursue a salaried
position because such positions offered a salary of only $50,000
to $80,000 per year. Dr. Richardson testified that his ability
to join another practice as a partner or shareholder was
unlikely because he did not know of any practices in Reston that
would take on another partner.
Dr. Richardson stated that he works six days a week for his
new practice, renting space from another dentist. Parker works
for Dr. Richardson, earning a salary of $25 per hour as an
office manager. Dr. Richardson stated that because the size of
the rented space is limited, he is “in the process of obtaining
a piece of real estate to build a new office.” Dr. Richardson’s
accountant, James Veltri, testified that purchasing or renting a
new office and equipment to operate the dental practice would
raise Dr. Richardson’s expenses by about $3,000 per month.
Finding Dr. Richardson’s income was $9,000 per month, and
Mrs. Richardson’s income was $4,650 per month, the trial court
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reduced Mrs. Richardson’s spousal support from $4,200 to $2,000
per month and reduced child support from $1,500 to $578 per
month. The court declined to award attorneys’ fees to either
party.
Mrs. Richardson contends the trial court erred by: (1)
placing on her the burden of proving that Dr. Richardson’s
termination was caused by his own act or neglect; (2) finding
that Dr. Richardson’s claimed reduction of income was not due to
his own act or neglect; and (3) finding that she was not
entitled to attorney’s fees. The court ordered both the
reductions in spousal support and child support retroactive to
January 1, 1998.
II. MODIFICATION OF SUPPORT
Because the court heard the evidence at trial, its decision
“is entitled to great weight and will not be disturbed unless
plainly wrong or without evidence to support it.” Piatt v.
Piatt, 27 Va. App. 426, 432, 499 S.E.2d 567, 570 (1998)
(citations omitted); see Code § 8.01-680. In reviewing the
findings of the trial court, “we construe the evidence in the
light most favorable to husband, the prevailing party below,
granting to him all reasonable inferences fairly deducible
therefrom.” Rogers v. Yourshaw, 18 Va. App. 816, 818, 448
S.E.2d 884, 885 (1994).
On appeal, Mrs. Richardson argues that the trial court
erred by failing to require Dr. Richardson to establish that his
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claimed reduction in income was not due to his own voluntary act
or neglect. Mrs. Richardson argues that the court improperly
placed this burden on her. She argues that Dr. Richardson
“knowingly jeopardized his employment and livelihood and, in
fact, lost his job, by refusing to obtain the resignation of his
live-in companion as an employee of his dental practice, after
being told by another principal of the practice that her
employment violated company policy.”
In a petition for modification of child support and spousal
support, the burden is on the moving party to prove a material
change in circumstances that warrants modification of support.
See Street v. Street, 24 Va. App. 2, 9, 480 S.E.2d 112, 116
(1997). The material change “must bear upon the financial needs
of the dependent spouse or the ability of the supporting spouse
to pay.” Id. at 9, 480 S.E.2d at 116 (citations omitted). An
obligor/parent seeking a reduction in the amount of his or her
child support obligation “must . . . make a full and clear
disclosure about his ability to pay, and he must show his
claimed inability to pay is not due to his own voluntary act or
because of his neglect.” Antonelli v. Antonelli, 242 Va. 152,
154, 409 S.E.2d 117, 119 (1991).
Spouses deemed entitled to support have the
right to be maintained in the manner to
which they were accustomed during the
marriage, but their needs must be balanced
against the other spouse’s financial ability
to pay. . . . In addition, a court retains
jurisdiction to modify an award of periodic
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payments for support upon a showing that a
change of circumstances has occurred,
affecting the need for the payments or the
ability to make them.
Floyd v. Floyd, 1 Va. App. 42, 45, 333 S.E.2d 364, 366 (1985)
(citations omitted); see Code § 20-109.
Dr. Richardson, as the moving party, was required to prove
that changed financial circumstances required a modification of
his duty to pay child and spousal support and that his claimed
inability to pay support at the previously established level was
not due to his own voluntary act or neglect. At the hearing on
February 19, 1998, Dr. Richardson testified that he did not know
why he was terminated from Reston Dental Group. He stated that
on August 26, 1997, he was given notice of a shareholders’
meeting convened to address his status as a shareholder. Dr.
Richardson testified that the shareholders’ meeting was held two
days later, on August 28, 1997, and during the meeting, the
shareholders voted unanimously to terminate him as a
shareholder.
Dr. Richardson stated that he asked why he was being
terminated both prior to the meeting and several times during
the meeting, but his former partners refused to give him a
reason for his termination. Dr. Richardson testified that he
was “not aware of anything I did to displease the group.” He
testified that he had some disagreements over his ten years in
the practice group with Dr. Kirkpatrick, the president of the
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practice group, but that “there [were] not hard feelings about
it. It was just a conflict in the practice.” The severance
agreement and general release agreement signed by three of the
partners and Dr. Richardson stated that his termination was
“involuntary . . . [and] based upon personality conflicts and
differences.”
Dr. Richardson admitted that after an administrative
meeting, less than a month before his dismissal, he had been
asked by one of his partners, Dr. Forsbergh, to talk to Parker
about resigning her position. Dr. Richardson also admitted that
following his conversation with Dr. Forsbergh, he and Parker
consulted an attorney to determine whether there was any legal
recourse to the attempts to terminate Parker. Dr. Richardson
testified that although he was aware of the policy that
prohibited spouses from working in Reston Dental Group, he did
not believe the fact that he and Parker lived together violated
the “spirit of that policy” and that he and Parker maintained a
professional relationship in the office. At the hearing, the
following colloquy took place between Dr. Richardson and Mrs.
Richardson’s counsel:
Q: Well, what were the purposes that were
given to you to suggest that you ask her
to resign a month before you were asked
to leave?
A: What Dr. Forsbergh said was that since
we were as the equivalent of spouses,
even though we weren’t married, that it
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fell under this heading of spouses not
working in the office.
Q: So the fact is, Dr. Richardson, you do
know at least partly why you were asked
to leave that practice?
A: No, that had nothing to do with it.
Q: How do you know that?
A: Well, I don’t know that.
Mrs. Richardson testified that she was aware of Reston
Dental Group’s prohibition on married spouses working in the
practice. She testified that during the marriage, Dr.
Richardson had told her of one occurrence where a partner’s
spouse left her position with the practice because of the
policy.
Mrs. Richardson testified that her employment situation at
the time of the Agreement and at the hearing remained the same.
She stated that she worked in the business of arranging nursing
care and other support services for the elderly. She testified
that her income had increased approximately five hundred dollars
per month from the time of the parties’ Agreement until the date
of the hearing.
Following all testimony, the court granted Dr. Richardson’s
petition for a reduction in spousal and child support and
stated,
I believe from the evidence . . . that he
did get fired there and he didn’t expect it,
and maybe it was involved with this woman
somehow; but . . . I can’t say that it was
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involved with her. As far as I know it was
an unexpected thing.
We must affirm the ruling of the trial court unless it is
plainly wrong or without evidence to support it. See Jennings
v. Jennings, 26 Va. App. 530, 534, 495 S.E.2d 544, 546 (1998).
Upon appellate review, we must review the facts in the light
most favorable to the party prevailing below. Mrs. Richardson
maintains that the language used by the trial court illustrates
that the burden of proof was improperly shifted to her. We
disagree.
In Whitt v. Ervin B. Davis & Co., Inc., 20 Va. App. 432,
438, 457 S.E.2d 779, 782 (1995), we examined the issue of a
party’s burden of proof and stated,
[A p]rima facie [case consists of] evidence
which on its first appearance is sufficient
to raise a presumption of fact or
establish[ed] the fact in question unless
rebutted. It imports that the evidence
produces for the time being a certain result,
but that the result may be repelled.
Commonwealth v. Dalton, 11 Va. App. 620, 623,
400 S.E.2d 801, 803 (1991) (habitual offender
adjudication appeal citing standard for civil
proceedings) (quoting Babbit v. Miller, 192
Va. 372, 379-80, 64 S.E.2d 718, 722 (1951)).
Where the party having the burden of proof
presents a prima facie case, the burden of
going forward with the evidence shifts to the
opposing party. While the burden of proof
remains unchanged, the party against whom a
prima facie case exists can avoid the
presumed result only by producing evidence to
explain to the satisfaction of the trier of
fact why the prima facie evidence is in error
or is otherwise not subject to the
appropriate standard of law applicable to
such facts. Such countervailing evidence is
sufficient if it outweighs the prima facie
case or leaves the ultimate question in
equipoise. See Pullen v. Fagan, 204 Va. 601,
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604, 132 S.E.2d 718, 720 (1963) (standard
applicable to civil proceedings); Interstate
Veneer Co. v. Edwards, 191 Va. 107, 113-14,
60 S.E.2d 4, 7-8 (1950) (same).
After Dr. Richardson established a prima facie case that
his termination was not due to his voluntary act or neglect,
Mrs. Richardson introduced evidence in rebuttal. We do not
construe the trial judge’s explanation as improperly shifting
the burden of proof; rather, we find that the trial judge
accepted the evidence that constituted Dr. Richardson’s prima
facie case and determined that Mrs. Richardson’s evidence did
not rebut it. The burden of proof remained with Dr. Richardson.
III. ATTORNEY’S FEES
On appeal, Mrs. Richardson requests that we remand the case
to the trial court for an award of attorney’s fees and costs
incurred by her at trial. Mrs. Richardson also requests that
the case be remanded for a calculation of attorney’s fees and
costs incurred on appeal.
In considering a trial court’s decision to award attorney’s
fees, “[a]n award of attorney’s fees is a matter submitted to
the trial court’s sound discretion and is reviewable on appeal
only for an abuse of discretion.” Graves v. Graves, 4 Va. App.
326, 333, 357 S.E.2d 554, 558 (1987). In determining whether
attorney’s fees incurred on appeal should be awarded:
The rationale for the appellate court
being the proper forum to determine the
propriety of an award of attorney’s fees for
efforts expended on appeal is clear. The
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appellate court has the opportunity to view
the record in its entirety and determine
whether the appeal is frivolous or whether
other reasons exist for requiring additional
payment.
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98,
100 (1996).
In requesting an award of attorney’s fees and costs at
trial, Mrs. Richardson disclosed to the court that in
negotiations prior to the hearing she suggested that child
support payments be reduced to $1,000 per month and spousal
support payments be reduced to $3,000 per month. Dr. Richardson
refused to accept the settlement terms, insisting that the
spousal support be totally eliminated before he would settle.
The court refused to grant Mrs. Richardson’s request for
attorney’s fees, stating, “If you’d have offered to - offered
something like I came down with, I probably would give you some
fees but. . . .”
The court indicated that if Mrs. Richardson had predicted
more closely the amount of spousal and child support to be
awarded by the court and proposed those amounts in her
negotiations with Dr. Richardson, the court would have granted
her request. We hold that the court abused its discretion in
utilizing this factor as its stated basis upon which it refused
to award attorney’s fees to Mrs. Richardson. In determining
whether an award of attorney’s fees is appropriate, the focus
should be on the parties’ bona fide claims and not on the
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parties’ ability to predict in advance of trial the exact ruling
of the court.
We remand for reconsideration of Mrs. Richardson’s petition
for an award of attorney’s fees and costs at trial. Mrs.
Richardson’s request for an award of attorney’s fees on appeal
is denied.
Affirmed in part,
reversed in
part and remanded.
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