COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
RENATA MARYANN NAYDOCK BIBB
MEMORANDUM OPINION *
v. Record No. 1918-97-4 PER CURIAM
FEBRUARY 17, 1998
RICHARD EUGENE BIBB
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David T. Stitt, Judge
(Peter M. Fitzner; Shoun & Bach, on briefs),
for appellant.
(J. Patrick McConnell; Elizabeth L. Salans;
Odin, Feldman & Pittleman, on brief), for
appellee.
Renata Maryann Naydock Bibb appeals the decision of the
circuit court denying her motion to increase the monthly spousal
support she receives from her former husband, Richard Eugene
Bibb. The wife contends that the trial judge erred in failing to
increase spousal support. In his brief, the husband raises as an
additional question whether the trial judge erred when he reduced
the monthly income imputed to the wife from $1,042 to $283. 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.
Code § 20-109 provides that "upon petition of either party
the court may increase, decrease or terminate spousal support and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
maintenance that may thereafter accrue . . . as the circumstances
may make proper." In seeking a modification, "[t]he moving
party . . . is required 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 wife filed a petition to increase child support and
spousal support, alleging an increase in the husband's earnings.
The trial judge found that the husband's increased earnings
warranted an increase in monthly child support from $691 to
$1,145, retroactive to the filing of the petition. The trial
judge denied any increase in spousal support and awarded the wife
$10,000 in attorney's fees.
The evidence proved that the husband's earnings have
increased. The husband's earnings were $180,000 in 1993,
$178,000 in 1994, and $204,000 in 1995. The trial judge found
that the husband's 1996 earnings were an aberration and found it
appropriate to use $250,000 as the amount of the husband's 1996
earnings when computing child support.
When the trial judge set the original award in 1994, the
trial judge imputed $25,000 in income to the wife. In her
current petition, the wife asserted that she no longer enjoyed
the middle-class standard of living enjoyed by the parties during
the marriage and that she was unable to earn income at the
imputed level of $25,000. The wife contended that she needed
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additional assistance to help her purchase a new car, new
clothes, and a new computer to be successful in her chosen career
as a real estate agent.
Although the evidence indicated that the wife's financial
well-being had decreased and the husband's had increased, those
facts alone do not mandate an increase in spousal support. The
trial judge found that the wife bore responsibility for her
decreased financial well-being. The wife testified that she
worked forty to sixty hours a week as a real estate agent since
June 1996. However, the wife testified that she had decided not
to seek any employment other than that as a real estate agent and
that she applied for only one job since the divorce. The trial
judge was not required to accept her belief that her mental
depression prevented her from engaging in regularly scheduled
work and only permitted her to sporadically sell real estate.
The trial judge heard and saw the parties testify and did not
find credible the wife's contention that her depressed state made
her incapable of seeking other, more reliable, employment, but
did not keep her from working forty to sixty hours a week as a
real estate agent.
The trial judge's findings are supported by credible
evidence. Therefore, we cannot say that the trial judge erred by
refusing to find that changed circumstances justified an increase
in spousal support.
Reduction in Imputed Income
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The husband contends that the trial judge erred by reducing
the income imputed to the wife when calculating child support.
We disagree. The trial judge calculated the child support
payments pursuant to the guidelines found in Code § 20-108.2,
which are presumed to be correct. See Code § 20-108.1(B). The
trial judge elected not to deviate from the guidelines by
imputing income to the wife. Based upon the circumstances as
they existed at the time of the hearing, we cannot say the trial
judge erred in failing to impute income to the wife.
Accordingly, we summarily affirm the decision.
Affirmed.
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