COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Willis
JOSEPH E. BECK, III
MEMORANDUM OPINION *
v. Record No. 1724-02-2 PER CURIAM
AUGUST 26, 2003
STACEY WESTWOOD, F/K/A
STACEY A. BECK
FROM THE CIRCUIT COURT OF HANOVER COUNTY
John R. Alderman, Judge
(Joseph E. Beck, III, pro se, on briefs).
(Barbara S. Picard; Cawthorn, Picard & Rowe,
P.C., on brief), for appellee.
Joseph E. Beck, III, (husband) appeals an order of the trial
court denying his motion for a reduction and/or termination in
spousal support. Husband argues the trial court's ruling was
plainly wrong and without evidence to support it. Upon reviewing
the record and briefs of the parties, we conclude that this appeal
is without merit. Accordingly, we summarily affirm the decision
of the trial court. See Rule 5A:27.
BACKGROUND
The parties' final divorce decree was entered on September
21, 1998. On April 12, 1999, the trial court entered a decree
addressing the equitable distribution of the parties' marital
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
assets and child and spousal support. In that order, the trial
court did not award wife spousal support but provided that wife
would receive a reservation of spousal support. The order awarded
wife monthly child support payments of $1,027.20.
Stacey Westwood (wife) appealed the order to this Court. We
issued an unpublished opinion remanding the case to the trial
court for reconsideration of the issue of spousal support. In
that opinion, we held that the record failed to show that wife had
"income sufficient to meet her needs or to provide the basic
necessities." Beck v. Beck, Record No. 1082-99-2, slip op. at 18
(Sept. 19, 2000). Wife has a master's degree in business
administration, but she did not work outside the home, and she
provided nearly 100% of the non-monetary contributions to rearing
the parties' three children, who were all below school age at that
time. We concluded that the trial court erred in not awarding
wife spousal support "in an amount at least equal to that
necessary to pay child care expenses that would enable wife to
seek employment." Id. at 19. The opinion also affirmed the trial
court's ruling to impute $50,000 in annual income to husband
because he was voluntarily under-employed.
On February 16, 2001, the trial court entered an amended
order awarding wife spousal support in the amount of $1,400 per
month nunc pro tunc to November 1, 1998. The order also adjusted
husband's monthly child support payment "to account for the
spousal support award." In September 2001, husband filed a motion
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for reduction and/or termination of spousal support based on a
material change in his financial circumstances.
On January 31, 2002, the trial court held a hearing on
husband's motion. The hearing was not transcribed. The written
statement of facts indicates that wife testified she is not
currently seeking employment and she is attending a university
working toward a masters degree in secondary education. Wife also
stated that she has held several part-time jobs since the parties'
divorce.
Husband testified that "shortly after" June 1998, he
purchased a business for $1,000,000 and that he started a "new
company" in 1999. The new company was "put into involuntary
bankruptcy" in July 2000, and husband now works for "JSJ Design,"
a limited liability company owned by his current spouse. Husband
testified that he did not know the gross income or the expenses
for JSJ Design, except that it has a monthly "rent" payment of
$1,000. The written statement of facts includes no information
about husband's current income. However, in his October 8, 2001
deposition, husband stated that he was not earning a salary from
JSJ Design because the company could not afford to pay him.
Husband's spouse works part-time for JSJ Design. Husband also
testified that he and his current spouse have a monthly mortgage
payment of $1,500, a monthly home equity loan payment of $300 per
month, and two car loan or lease payments totaling $782 per month.
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The trial court ruled that husband showed no material change
in circumstances sufficient to reduce the spousal support award.
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). "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). In
addition, "[t]he material change in circumstances must have
occurred after the most recent judicial review of the award
. . . ." Moreno v. Moreno, 24 Va. App. 190, 195, 480 S.E.2d 792,
795 (1997). "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).
Husband asserts that the following circumstances have changed
justifying a reduction or termination of the spousal support
award: the children now attend school full-time, thus reducing
potential child care costs; wife is not seeking employment; and he
pays 90% of his monthly income in support payments based on the
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imputed income figure of $50,000 per year. He also argues that
since wife has only worked several part-time jobs and is not
seeking employment, very little of the spousal support award has
been used for child care expenses.
The evidence showed that wife is attending school and is not
employed. Although the children are also now attending school,
the spousal support award was not established for the sole purpose
of paying for child care expenses. Rather, as we stated in the
opinion in Record No. 1082-99-2, in awarding spousal support,
"'the law's aim is to provide a sum for such period of time as
needed to maintain the spouse in the manner to which the spouse
was accustomed during the marriage, balanced against the other
spouse's ability to pay.'" Beck, Record No. 1082-99-2, slip op.
at 17 (quoting Blank v. Blank, 10 Va. App. 1, 4, 389 S.E.2d 723,
724 (1990)). We held only that wife should receive spousal
support "in an amount at least equal to that necessary to pay
child care expenses that would enable wife to seek employment."
Id., slip op. at 19. We did not state that the award was solely
to be used to pay child care costs.
Wife remains unemployed, but is working toward an advanced
degree. Husband's obligation to maintain wife in the manner to
which she was accustomed during the marriage continues.
Furthermore, in the February 16, 2001 order, the trial court
reduced husband's child support payment to account for the spousal
support award.
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Moreover, husband has failed to show any material change in
his financial circumstances. The spousal support award was
established in the February 16, 2001 trial court order. The
financial circumstances cited by husband--the bankrupt business,
the acquisition of a mortgage and home equity loan--occurred prior
to the award of spousal support. Furthermore, the spousal support
award was also based on the imputation of $50,000 in annual income
to husband, which was affirmed by this Court. Thus, husband's
assertion that he receives no income from JSJ Design is of no
consequence.
Accordingly, we find the trial court did not abuse its
discretion in denying husband's motion for a reduction and/or
termination in spousal support.
Affirmed.
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