Reece v. Reece

                    COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Coleman and Elder
Argued at Richmond, Virginia


DONNA G. REECE
                                                    OPINION BY
v.          Record No. 0946-95-2               JUDGE LARRY G. ELDER
                                                  APRIL 30, 1996
WILLIAM M. REECE


              FROM THE CIRCUIT COURT OF HANOVER COUNTY
                     Richard H. C. Taylor, Judge

            Andrea R. Stiles (Kelly Harrington Johnson;
            Williams, Mullen, Christian & Dobbins, on
            brief), for appellant.

            Murray J. Janus (Deanna D. Cook; Bremner &
            Janus, on brief), for appellee.



     Donna G. Reece (wife) appeals the trial court's decision to

reduce William M. Reece's (husband) monthly spousal support

obligation.   Wife contends that husband became voluntarily

underemployed when he lost his job and failed to find comparable

employment in the Richmond, Virginia area or when he refused to

accept comparable employment in Tampa, Florida.    Finding that the

trial court did not abuse its discretion, we affirm its decision.

                                    I.

                                   FACTS

     Wife and husband married on January 24, 1968, separated on

July 1, 1993, and divorced on December 7, 1994.    Until October

1993, R.J. Reynolds Tobacco Company employed husband in Richmond

as a regional accounts manager, paying him approximately $145,000

per year.   Unemployed during most of the marriage, wife found
employment after the separation, which paid her $11,600 per year.

On July 28, 1993, the trial court ordered husband to pay

pendente lite spousal support to wife in the amount of $1,000 per

month.

     Although R.J. Reynolds Tobacco Company eliminated husband's

position in October 1993, it offered him an equivalent paying

position as a senior chain accounts manager in Tampa, Florida.

Husband declined the employment offer.   In October 1993, R.J.

Reynolds Tobacco Company gave husband a severance package worth

approximately $110,000 per year.   The package terminated in March

1995, seventeen months later.   After the separation and divorce,

wife continued to earn approximately $11,500 per year.   On

December 7, 1994, the trial court granted the parties a divorce,

accepted the commissioner's spousal support recommendation, and

ordered husband to continue to pay wife $1,000 per month in

spousal support.
     On February 6, 1995, two months after the trial court's

order, husband filed a motion to decrease his spousal support

payments based on a material change in circumstances.    At the

time of the trial court's hearing on husband's motion, husband

was employed as a real estate agent in Ashland, Virginia.

Husband testified that his gross income had decreased to $1,752

per month, which gave him insufficient funds with which to pay

wife $1,000 per month in spousal support.   Husband also testified

that his severance pay from R.J. Reynolds Tobacco Company ended



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in March 1995.    Finally, husband testified that he believed it

could take three years "to really get to the point where [he

could be] making some money."    Wife presented no evidence showing

other comparable jobs were available to husband.     The trial court

found that husband sustained his burden of proof and reduced the

amount of monthly spousal support owed to wife from $1,000 to

$430 per month.

                                 II.
                   MODIFICATION OF SPOUSAL SUPPORT

     On appeal, we view the evidence and all reasonable

inferences therefrom in the light most favorable to the

prevailing party below.    Alphin v. Alphin, 15 Va. App. 395, 399,

424 S.E.2d 572, 574 (1992).   A presumption exists that the trial

court based its decision on the evidence presented and properly

applied the law.    Williams v. Williams, 14 Va. App. 217, 221, 415

S.E.2d 252, 254 (1992).   Furthermore, a trial court's judgment

will not be disturbed on appeal unless plainly wrong or without

evidence to support it.    Jennings v. Jennings, 12 Va. App. 1187,

1189, 409 S.E.2d 8, 10 (1991).

     Code § 20-109 states that "[u]pon petition of either party

the court may increase, decrease, or terminate spousal support

and maintenance that may thereafter accrue, whether previously or

hereafter awarded, as the circumstances may make proper."    "The

moving party in a petition for modification of support is

required to prove both [1] a material change in circumstances and




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[2] 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); Code § 20-109.

     Husband satisfied the first prong by a preponderance of the

evidence, when he proved that his financial circumstances had

materially changed following the trial court's last decree after

he had involuntarily lost his job.    See Edwards v. Lowry, 232 Va.

110, 112, 348 S.E.2d 259, 261 (1986).   Husband testified that in

October 1993, R.J. Reynolds Tobacco Company eliminated his job as

a regional accounts manager, which paid him $145,000 per year.

At the time of the trial court's support modification hearing,

husband no longer received his severance pay from R.J. Reynolds

Tobacco Company.   Instead, husband was employed as a real estate

agent, earning a substantially reduced monthly income of $1,700.

Wife did not dispute any of this evidence, which, when viewed as

a whole, demonstrated a material change in husband's financial

circumstances.
     Aside from having to prove a material change in

circumstances, husband had to prove that this change warranted a

support modification.   In discharging this burden, one of the

circumstances that the chancellor must consider is whether the

changed circumstances arose from his own voluntary

underemployment.   Edwards, 232 Va. at 112-13, 348 S.E.2d at 261.

A trial court may use its broad discretion in deciding whether a



                                -4-
material change in circumstances warrants a modification in the

amount of support. 1

     Both parties agree that husband did not voluntarily choose

to leave his job as a regional accounts manager; rather, R.J.

Reynolds Tobacco Company eliminated his position through no

apparent fault of husband's.   Both parties also agree that

husband voluntarily elected not to relocate in order to accept

comparable employment in Tampa, Florida.   Wife argues that as a

consequence the trial court was required to impute income to

husband because he became voluntarily underemployed when:     (1) he

refused to market his skills and locate comparable employment in

the Richmond, Virginia area, and (2) he declined R.J. Reynolds

Tobacco Company's offer of comparable employment in Florida.
     The parties agree that a supporting spouse has the right to

change employment voluntarily or embark upon a new career.

Nothing in the record rebuts the contention that husband's

acceptance of a job as a real estate agent in the Richmond area

was a "bona fide and reasonable business undertaking" entered

into after he involuntarily lost his prior employment.   Rawlings

v. Rawlings, 20 Va. App. 663, 669, 460 S.E.2d 581, 583 (1995).

Although at the time of the hearing, husband was making less

money per year than his former position paid, he expected his
     1
        Unlike spousal support cases, in cases involving the
modification of child support obligations, a trial court must
calculate child support according to the presumptive amounts
outlined in Code § 20-108.2. Such presumptive amounts do not
exist in cases involving spousal support.



                                -5-
income to increase within three years.

     Furthermore, the record does not show that husband refused

comparable employment in Richmond merely for his personal

convenience and without consideration of his family.    Cochran v.

Cochran, 14 Va. App. 827, 830, 419 S.E.2d 419, 421 (1992).    There

is nothing in the record to show that such employment existed in

Richmond.   The trial court specifically asked wife if she had

"any evidence to show that [husband] had an opportunity to have

employment other than [the Tampa job]?"   Wife responded that she

did not have any such evidence.    Neither did wife introduce any

evidence to show that husband, in accepting employment as a real

estate agent, deliberately minimized his income for the purpose

of reducing his ability to support wife, who was not living under

necessitous circumstances.   Therefore, husband met his burden of

showing a material change in circumstances that warranted a

support modification.
     Whether a supporting spouse is voluntarily unemployed or

underemployed when he or she refuses to accept comparable

employment in another geographical area is a question of first

impression in Virginia.   After reviewing the law of this state

and other jurisdictions, we find no authority for a per se rule

which would hold that a supporting spouse always becomes
voluntarily underemployed or unemployed when he or she refuses to

accept an offer of comparable employment in another geographic




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location. 2     We decline the invitation to adopt a bright line

rule.       A trial court shall consider factors in addition to

refusing comparable employment in another locale when deciding

whether either spouse is voluntarily unemployed or underemployed.

 See O'Brien v. Rose, 14 Va. App. 960, 964, 420 S.E.2d 246, 249

(1992).

        As explained above, the trial court made the factual finding

that husband, through no fault of his own, became involuntarily

unemployed when his employer eliminated his position.      The trial

court also found that husband voluntarily elected not to accept

comparable employment in Tampa, Florida.      These two findings of

fact, by themselves, did not allow the trial court to determine

whether to impute income to husband.      This case, therefore,

differs from Antonelli and other cases that are factually similar
to Antonelli.       In Antonelli, the trial court made a factual
        2
        None of the cases cited by wife supports her contention
that because husband refused his employer's transfer offer, he
became voluntarily underemployed. For example, in Butler v.
Butler, 217 Va. 195, 227 S.E.2d 688 (1976), the Supreme Court
held that the physician-husband's voluntary decision to remain in
a lower-salaried, career-oriented, staff position sacrificing
immediate income for future expectations could not be permitted
to penalize his former wife by reducing her support payments. In
Antonelli v. Antonelli, 242 Va. 152, 156, 409 S.E.2d 117, 119-20
(1991) the Supreme Court upheld the trial court's decision that
the husband, who voluntarily left his position as a salaried
stock broker to become a commissioned stock broker, only to
suffer a decrease in income, was not allowed to reduce his child
support payments to his former wife. Similarly, in Taylor v.
Taylor, 203 Va. 1, 121 S.E.2d 753 (1961), the Supreme Court
held that the husband, who voluntarily left his job to accept a
lower-paying job, was not allowed to reduce his support payments.
 See also Barnhill v. Brooks, 15 Va. App. 696, 427 S.E.2d 209
(1993).




                                    -7-
finding that the supporting spouse voluntarily chose to leave his

existing job to pursue other employment and therefore declined to

grant the supporting spouse's petition to reduce support.

Antonelli, 242 Va. at 156, 409 S.E.2d at 119-20.     Here, because

husband involuntarily left his job, the trial court's inquiry

differed from the onset.    Trial courts, in cases such as this,

must exercise their discretion in determining whether the

obligor's actions after being involuntarily terminated constitute

voluntary underemployment and whether income should therefore be

imputed.
        In deciding whether failure to relocate constitutes

voluntary unemployment or underemployment to justify imputing

income, the trial court shall consider all the evidence in each

case.    In exercising its discretion, a trial court should

consider a number of factors, including but not limited to: (1)

the supporting spouse's business ties to the community; (2) the

supporting spouse's familial ties to the community; (3) whether

the supporting spouse's relocation would have an undue

deleterious effect upon his or her relationship with his or her

children or other family members; (4) the length of time in which

the supporting spouse has resided in the community; (5) monetary

considerations which would impose an undue hardship upon the

supporting spouse if he or she were forced to relocate; (6) the

"quality of life" in the respective communities; (7) the

geographic distance between the respective communities; and (8)



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the severity of the burden which a failure to relocate would have

on the obligee spouse.

     In this case, the trial court did not abuse its discretion

in not imputing income after finding that husband did not become

voluntarily unemployed or underemployed when he refused to

relocate to Tampa, Florida.    The record reveals that the trial

court had before it sufficient facts to make such a

determination.   First, the record reveals that husband, who was

forty-nine years old, had strong familial ties to Richmond.

Husband supported one daughter, who attended a local college and

lived with husband in Richmond, and he had another grown daughter

who also lived in the area.    Second, husband had substantial

business ties to Richmond.    He worked for R.J. Reynolds Tobacco

Company for an extended period of time while operating a small

golf supply business, and then took a job as a real estate agent

in nearby Ashland, Virginia.   Third, wife was not destitute nor

did she suffer from health problems that necessitated a greater

amount of financial support.   Finally, the great geographic

distance between Richmond and Tampa was a relevant consideration

for the trial court.
     In light of the foregoing reasons, we affirm the judgment of

the trial court.

                                                          Affirmed.




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Baker, J., concurring in result.


     I join with the majority only because I believe that, viewed

in the light most favorable to the prevailing party below, the

evidence supports the trial court's decision; therefore, I cannot

say that its decision was plainly wrong.   If the trial court had

held on this same evidence that husband had become voluntarily

underemployed, I believe that, viewing the evidence in the light

most favorable to wife, we would have found evidence to support

that decision and we could not have said that it was plainly

wrong or that an abuse of discretion had been shown.
     In matters of this nature, with this kind of evidence,

generally, the decision of the trial court that views the

witnesses must be upheld.




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