COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Senior Judge Hodges
Argued at Richmond, Virginia
JOHN E. FITZGERALD
MEMORANDUM OPINION * BY
v. Record No. 2625-98-2 JUDGE WILLIAM H. HODGES
OCTOBER 26, 1999
VICKI L. FITZGERALD
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge
James C. Roberts (Dawn B. DeBoer; Mays &
Valentine, L.L.P., on brief), for
appellant.
No brief or argument for appellee.
John E. Fitzgerald (husband) appeals the decision of the
circuit court denying his petition to terminate or reduce the
monthly spousal support he pays to Vicki L. Fitzgerald (wife). On
appeal, husband contends that, under the circumstances of this
case, the trial court erred in not reducing his obligation to pay
spousal support. We find that the trial court failed to properly
consider the parties' current circumstances when considering
husband's motion. Therefore, we vacate the trial court's decision
as to spousal support and remand this case to the trial court for
reconsideration of the parties' current circumstances.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
As the party seeking a modification of spousal support
pursuant to Code § 20-109, husband bore the burden "to prove 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 court "must look to
current circumstances and what the circumstances will be 'within
the immediate or reasonably foreseeable future.'" Srinivasan v.
Srinivasan, 10 Va. App. 728, 735, 396 S.E.2d 675, 679 (1990)
(citation omitted).
Husband alleged that there had been a material change in his
circumstances and that wife was capable of returning to the work
force as a substitute teacher. At the time of the hearing, wife
was fifty-six years old and in good health. She worked as a
teacher for approximately sixteen years, but had not taught, or
worked outside the home, since 1977. Husband admitted that he
earned $438,210 in 1997, but alleged that he was forced to borrow
money to meet his obligations.
The trial court found that husband failed to prove a material
change in circumstances warranting a reduction in spousal support.
The court rejected husband's assertions that wife was able to
work, noting that wife
is now five years older than she was when
she and [husband] were divorced, four years
older than she was when permanent support
was first ordered, and two years older than
she was when the parties were last in court.
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If it was not appropriate for the court to
expect her to reenter the workforce at any
of those times, it is not appropriate for
the court to expect her to reenter the
workforce now.
We find that the trial court erred by failing to properly
consider the parties' current circumstances. An award of
spousal support "must be based upon the circumstances in
existence at the time of the award." Payne v. Payne, 5 Va. App.
359, 363, 363 S.E.2d 428, 430 (1987). The trial court relied
upon its earlier determination concerning wife's ability to
reenter the workforce, and presumed that the passage of time had
not affected those circumstances. This was error. A trial
court may not merely carry forward its previous factual
determinations. The trial court was required to consider
whether, under current circumstances, it was appropriate to
impute income to wife or whether husband had otherwise proven
that presently he was entitled to a reduction or elimination of
his spousal support obligation. "The trial court must consider
the earning capacity of the parties in setting the amount of
spousal support." Konefal v. Konefal, 18 Va. App. 612, 614, 446
S.E.2d 153, 154 (1994); see Code § 20-107.1.
In the prior hearing, husband attempted to show that wife's
expenses were extravagant and indicative of poor financial
management. The trial court found that evidence unpersuasive.
The court noted that the financial wisdom of husband's own
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expenditures could be questioned. Wife was entitled, if
husband's resources allowed, to maintain the standard of living
established during their marriage of nearly twenty years.
"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." Floyd v. Floyd, 1 Va. App.
42, 45, 333 S.E.2d 364, 366 (1985); see also Furr v. Furr, 13
Va. App. 479, 483-84, 413 S.E.2d 72, 75 (1992). The court
rejected husband's testimony that he would earn less in the
future than he had in the past, noting that, based upon
husband's testimony in the previous hearings as to his projected
earnings, "[husband] is not very good at estimating his future
income." The court also noted that husband's current resources
allowed him to pay $1,458 each month so that his new wife and
her children can attend his country club and he can attend
theirs.
On remand, the trial court must consider the current
circumstances of both parties, including whether it is currently
appropriate to impute income to wife. It remains a matter left
to the discretion of the trial court, once it has considered the
current circumstances, whether those circumstances warrant a
reduction or elimination of spousal support.
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Accordingly, we vacate the decision of the circuit court
regarding spousal support and remand this matter to that court
for further proceedings consistent with this opinion.
Vacated
and remanded.
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