COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Humphreys
S. GREY FOLKES
MEMORANDUM OPINION *
v. Record No. 0726-00-1 PER CURIAM
SEPTEMBER 19, 2000
PAMELA A. FOLKES
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
S. Bernard Goodwyn, Judge
(Gregory S. Larsen; Roy, Larsen, Romm &
Lascara, on brief), for appellant.
(Henry M. Schwan, on brief), for appellee.
S. Grey Folkes (husband) appeals from an order entered by the
circuit court on February 23, 2000. On appeal, husband contends
the trial court erred by (1) making its modified award of spousal
support retroactive to the date of filing of the petition for
modification; and (2) refusing to find that husband had a change
in income sufficient to justify a material change in
circumstances. Pamela A. Folkes (wife) seeks an award of
appellate attorney's fees. 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.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Procedural Background
In a final decree of divorce entered on May 22, 1992, the
trial court ordered husband to pay wife monthly spousal support in
the amount of $4,500. In 1993, husband filed a petition to
decrease the amount of spousal support, and wife filed a petition
seeking an increase in spousal support. By order entered June 24,
1994, the trial court denied both petitions and ordered husband to
continue paying $4,500 per month for spousal support. In its
order, the trial court decreed that "all further matters
pertaining to spousal support are hereby transferred" to the
juvenile and domestic relations district court (juvenile court).
On January 12, 1998, husband filed a petition with the
juvenile court to decrease his spousal support obligation.
Shortly thereafter, wife petitioned the juvenile court to increase
husband's support obligation.
On May 27, 1998, the juvenile court granted husband's
petition and reduced husband's monthly spousal support obligation
to $2,500 beginning May 1, 1998. The juvenile court denied wife's
petition for increased support and for attorney's fees.
On May 29, 1998, wife noted her appeal to the circuit
court.
The parties presented evidence at a September 8, 1999
hearing. On September 9, 1999, the trial court ruled that "no
material change in circumstances has occurred which would
warrant an increase in the spousal award [to the wife]." The
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trial court also found that husband "has not shown a change in
his income sufficient to prove a material change in
circumstances which would warrant" a decrease in spousal
support; however, the circuit court found that wife was
voluntarily underemployed. As a result, the circuit court
reduced husband's monthly support obligation to $3,250
"effective February 1, 1998, and that's based upon the
understanding that the petition was filed in January of 1998."
By letter dated September 24, 1999, husband's attorney
asked the trial court to reconsider the retroactive application
of its award and "request[ed] that the Decree be effective
October 1, 1999." By letter to counsel dated November 22, 1999,
the trial court indicated that, "[u]pon review of the authority
provided to the Court, the effective date for the modification
of spousal support granted by this Court will be October 1,
1999," the month following the trial court's ruling. The trial
court directed husband's attorney to prepare and circulate an
order reflecting that ruling. By letter dated November 29,
1999, wife's attorney objected to the trial court's new ruling
and asked that the trial court reconsider the matter before
"entering any Decree." By letter to counsel dated December 13,
1999, the trial court declared its intention to "reconsider the
ruling in its letter of November 22, 1999" and to render a
ruling on the matter at the hearing "already on the Court's
docket for December 15, 1999."
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On February 23, 2000, the trial court entered a final order
memorializing its decision. In it, the trial court denied
wife's request for increased spousal support and granted
husband's request for a reduction in spousal support. The trial
court ruled that husband shall pay monthly spousal support of
$3,250 per month "beginning March 1, 1998." A transcript of the
December 1999 hearing was not made a part of the record.
Retroactive Application of Circuit Court Order
Although the trial court conveyed concurrent jurisdiction
to the juvenile court in 1994 pursuant to Code § 20-9(c), it
retained "continuing jurisdiction to consider those issues,
should it exercise its discretion to do so." Crabtree v.
Crabtree, 17 Va. App. 81, 84, 435 S.E.2d 883, 886 (1993).
Despite the absence in the Code of a statute expressly
allowing a trial court to modify and award spousal support
retroactively to the filing of the petition in juvenile court,
the legislature "did not ignore the possibility of altering
spousal support awards retroactively." Reid v. Reid, 245 Va.
409, 412, 429 S.E.2d 208, 210 (1993). By enacting Code
§ 20-112, the legislature "specifically addressed" and provided
for "retroactive modification" of spousal support orders "when
'proceedings are reopened to increase, decrease or terminate
maintenance and support for a spouse or for a child,' but only
'with respect to any period during which there is a pending
petition for modification, but only from the date that notice of
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such petition has been given to the responding party.'" Reid,
245 Va. at 412, 429 S.E.2d at 210 (quoting Code § 20-112).
"Whether to make modification of a support order effective
during a period when a petition is pending is entirely within
the discretion of the trial court." O'Brien v. Rose, 14 Va.
App. 960, 965, 420 S.E.2d 246, 249 (1992).
Code § 16.1-296(A) allows a party to appeal "any final
order or judgment of the juvenile court affecting the rights or
interests of any person coming within its jurisdiction."
"[A]n appeal to the circuit court from a
court not of record under Code § 16.1-136
annuls the judgment of the inferior tribunal
as completely as if there had been no
previous trial. . . . [S]uch a trial de
novo in the circuit court grants to a
litigant every advantage which would have
been his had the case been tried originally
in such court."
Box v. Talley, 1 Va. App. 289, 292, 338 S.E.2d 349, 351 (1986)
(quoting Walker v. Department of Public Welfare, 223 Va. 557,
563, 290 S.E.2d 887, 890 (1982)).
"Orders of the district court requiring support of a spouse
remain in full force and effect until reversed or modified by
the court to which an appeal has been perfected, or until the
entry of a decree in a suit for divorce instituted in a circuit
court, in which decree provision is made for spousal support."
Martin v. Bales, 7 Va. App. 141, 145-46, 371 S.E.2d 823, 826
(1988) (holding that juvenile court's award of spousal support
remained in force after circuit court heard husband's appeal but
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failed in its divorce decree to address spousal support)
(emphasis added).
Husband filed his petition for modification in the district
court in January 1998. After wife appealed the juvenile court's
September 9, 1999 decision modifying the circuit court's
original 1993 award of spousal support, the circuit court
conducted a trial de novo. Unlike the situation in Bales, the
circuit court specifically addressed spousal support in its
decree; therefore, its ruling annulled the decision by the
juvenile court. All that remained was for the trial court to
exercise its discretion and determine what date, within the
range set forth by Code § 20-112, to require husband to make his
first modified support payment. The record established that
husband filed his petition for modification in the juvenile
court on January 12, 1998 and wife received personal service on
February 10, 1998; therefore, the March 1, 1998 retroactive date
for the award to take effect was within the "period during which
there [wa]s a pending petition for modification." Code
§ 20-112. Accordingly, we find no error in the trial court's
ruling on this issue.
Modification of Spousal Support
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.
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App. 601, 605, 383 S.E.2d 28, 30 (1989). "We will not disturb
the trial court's decision where it is based on an ore tenus
hearing, unless it is 'plainly wrong or without evidence to
support it.'" Furr v. Furr, 13 Va. App. 479, 481, 413 S.E.2d
72, 73 (1992) (citation omitted).
At the ore tenus hearing, husband testified his 1993 gross
income was $685,969 and his 1998 gross income was approximately
$686,000. At the conclusion of the hearing, the trial court
found that "husband has not shown a change in his income
sufficient to prove a material change in circumstances, which
warrant a modification of support." In so ruling, the trial
court explained that "husband's income in 1998 appears to have
been about the same as it was in 1993, the last full year before
the Court's previous ruling." This decision is supported by
evidence and is not plainly wrong.
Wife's Request for Costs and Attorney's Fees Defending Appeal
Based on the circumstances of this case, we deny wife's
request for attorney's fees and costs. See Gayler v. Gayler, 20
Va. App. 83, 87, 455 S.E.2d 278, 280 (1995) (denying request for
appellate attorney's fees where husband had reasonable grounds
for appeal).
Accordingly, the decision of the circuit court is summarily
affirmed, and wife's request for fees and costs is denied.
Affirmed.
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