COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Bumgardner
Argued at Richmond, Virginia
OSCAR SPENCER FIELDS
MEMORANDUM OPINION * BY
v. Record No. 2035-99-2 JUDGE RICHARD S. BRAY
MAY 16, 2000
JEWELL BEVELL FIELDS
FROM THE CIRCUIT COURT OF GOOCHLAND COUNTY
F. Ward Harkrader, Jr., Judge
William S. Smithers, Jr. (Thompson, Smithers,
Newman, Wade & Childress, L.L.P., on brief),
for appellant.
Deanna D. Cook (Bremner, Janus, Cook &
Marcus, on brief), for appellee.
Oscar Spencer Fields (husband) appeals the decision of the
trial court denying his motion for a reduction in spousal support
previously awarded to his former wife, Jewell Bevell Fields
(wife). He contends the trial court erroneously found the
evidence insufficient "to prove a material change in circumstances
that justifies a modification" of the earlier decree. We disagree
and affirm the trial court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I.
The parties married in 1964 and were divorced by decree of
the trial court entered on September 10, 1996. In pertinent part,
the decree "affirmed, ratified and incorporated by reference" the
related report of a commissioner in chancery, which recommended,
inter alia, a substantial monetary award to wife, equal division
of the former marital residence and an award of $4,200 per month
spousal support to wife. The home was subsequently sold and, by
agreement of the parties, husband's portion of the proceeds was
credited to the monetary award due from him to wife.
In recommending spousal support to wife, the commissioner
declined to impute income to her, explaining,
based on all of the evidence, your
Commissioner believes that it is improbable
to expect [wife] to immediately become
employed at the current time given her age
[of 54], lack of skills and training and her
having been out of the work force and
employment arena for approximately 27 years.
However, the commissioner noted that she was "not unmindful
. . . that the law imposes a duty upon [wife] to contribute to
her own support and maintenance and the spousal support award
recommended herein should not be interpreted as discouraging
[wife] from seeking education, training, or employment within
the reasonable future."
On March 15, 1999, husband filed the subject motion for
reduction of spousal support, and the trial court conducted a
related hearing on May 7, 1999. Evidence presented by husband
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relevant to the instant appeal disclosed that wife had $234,000
on deposit to her account at Merrill Lynch, bearing interest at
4.41% and producing monthly income of $958. The principal sum
was attributed to funds received by wife from the sale of the
marital residence following entry of the final decree. Husband,
therefore, posits that the related income was not contemplated
in the prior support award to wife.
Wife counters that the residence was unsuccessfully
marketed for "probably two and-a-half" years before the sale, at
a price "much less" than the value reflected in the
commissioner's report adopted by the court. Moreover, wife
argues that the proceeds, one-half her share of the marital
estate and one-half retained as a portion of the monetary award
due from husband, were "considered by the . . . court before
setting the initial support award."
With respect to imputation of income to wife, the hearing
record reflects limited evidence pertinent to wife's
unemployment and related considerations. Wife acknowledged that
she has not "made any applications for a job" since the divorce,
but noted that she did not have "any training" and had not been
"offered any jobs." Husband testified simply that, "As far as I
know, she's in good health."
Husband stipulated that he "has sufficient income and
assets to pay the spousal support . . . previously ordered or as
reduced by the court."
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II.
"Upon petition of either party, the court may . . .
[modify] . . . spousal support . . . as the circumstances may
make proper." Code § 20-109(A). "The moving party in a
petition for modification of support is required to prove both a
material change in circumstances and that this change warrants a
modification of support." 1 Schoenwetter v. Schoenwetter, 8 Va.
App. 601, 605, 383 S.E.2d 28, 30 (1989). "The material change
in circumstances must have occurred after the most recent
judicial review of the award and 'must bear upon the financial
needs of the dependent spouse or the ability of the supporting
spouse to pay.'" Moreno v. Moreno, 24 Va. App. 190, 195, 480
S.E.2d 792, 795 (1997) (citations omitted). "The determination
whether a spouse is entitled to [a reduction 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).
Here, the evidence does not disclose that the interest
income to wife from the Merrill Lynch account constitutes a
1
We have oftentimes instructed that the two components
necessary to a modification require independent determinations
by the court. First, the evidence must prove a material change.
If so, the court must then "assess whether the requested
[modification], based on a material change in circumstances, is
justified in light of the overall circumstances[.]" Yohay v.
Ryan, 4 Va. App. 559, 566, 359 S.E.2d 320, 324 (1987); see also
Furr v. Furr, 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992).
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material change in circumstances that justifies a modification.
In originally awarding spousal support to wife, the trial court
presumably complied with Code § 20-107.1(8) and, therefore,
considered those "provisions made with regard to the marital
property under § 20-107.3," equitable distribution. Code
§ 20-107.1(8). Such "provisions made" by the trial court "with
regard to the marital property" pursuant to Code § 20-107.3
included an order that the "marital residence be immediately
listed for sale," with the "net proceeds . . . equally divided
between the parties" and, additionally, a significant monetary
award to wife. Hence, the court, in decreeing spousal support,
was aware of the substantial benefits to wife in equitable
distribution, with attendant benefits and burdens, including
income and alternate housing costs. Thus, in considering
husband's motion, the court correctly declined to view the
realization of such eventualities as constituting a material
change in circumstances sufficient to justify the requested
modification.
We, likewise, find no merit in husband's claim that income
must be imputed to wife as a result of her continued
unemployment. "Whether a person is voluntarily unemployed or
underemployed is a factual determination." Blackburn v.
Michael, 30 Va. App. 95, 102, 515 S.E.2d 780, 784 (1999). "In
evaluating a request to impute income, the trial court must
'consider the parties' earning capacity, financial resources,
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education and training, ability to secure such education and
training, and other factors relevant to the equities'" of the
parties. Id. (citation omitted).
The court determined in the original divorce proceedings
that wife was not employable. Wife has since pursued no
training or education to equip her with marketable skills, and
husband offered no evidence of available employment suitable to
her present qualifications. See generally Bennett v. Com.,
Virginia Dep't of Soc. Servs., 22 Va. App. 684, 693, 472 S.E.2d
668, 672 (1996) (trial court properly refused to impute income
where "mother has not worked for over ten years and no evidence
was introduced regarding the availability of jobs for her or the
amount of income she could earn"); Sargent v. Sargent, 20 Va.
App. 694, 704, 460 S.E.2d 596, 600 (1995) (trial court properly
refused to impute income where the only evidence that wife could
earn a better paying job came from the husband and "[n]o
evidence was presented about the availability of a . . .
position"). Manifestly, such evidence evinces no changed
circumstances.
Contrary to husband's assertion, the gratuitous comment of
the commissioner in her report, suggesting that the recommended
spousal award "should not . . . discourage[] [wife] from seeking
education, training, or employment within the reasonable
future," did not rise to an order of the court with the
incorporation of the report into the decree.
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The trial court, therefore, correctly ruled that husband
"failed to prove a material change in circumstances that
justifies a modification in the previous support award" and
properly denied the motion. Accordingly, we affirm the disputed
order.
Affirmed.
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