COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Overton
Argued at Salem, Virginia
JUDY POWELL GREENE
MEMORANDUM OPINION * BY
v. Record No. 0218-97-3 JUDGE JOSEPH E. BAKER
JANUARY 27, 1998
TERRY LEE POWELL
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
George E. Honts, III, Judge
James V. Doss, III, for appellant.
Andrew G. Mauck (Mays & Valentine, on brief),
for appellee.
Judy Powell Greene (wife) appeals from a decree of the
Circuit Court of Rockbridge County (trial court) that suspended
the obligation of Terry L. Powell (husband) to pay her spousal
support. Wife contends that the trial court erroneously failed
to consider her medical and rehabilitative evidence and
erroneously based its decision on the fact that she was
cohabiting with her boyfriend. Finding no error, we affirm the
judgment of the trial court.
In our review of the issues, we do not have the benefit of a
transcript of the various hearings held on motion of the parties.
In lieu thereof, we have a certified statement of facts. As the
parties are conversant with the record, we reference only those
matters necessary to an understanding of this opinion. Upon
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
familiar principles, we view the facts in the light most
favorable to the prevailing party below.
The parties married on July 11, 1970 and were divorced by a
decree entered on March 30, 1994. That decree incorporated a
property settlement agreement (PSA) which provided, in relevant
part, that husband would pay wife $1,400 monthly spousal support
subject to the following:
The parties acknowledge that this amount was
agreed upon in the expectation that Wife
would obtain employment (although she is not
at present employed) at the best wage level
available to her and that Wife's obtaining of
such a job would not in itself be grounds for
modification thereof. The parties further
agree that this support amount may be
modified from time to time, upon application
of either party to a court of appropriate
jurisdiction, and upon proper showing of the
moving party therein.
By motion filed May 24, 1996, husband sought to reduce or
terminate spousal support paid to wife. After a hearing on
husband's motion, the trial court reduced the spousal support to
$1,000 per month, ordered husband to pay $200 monthly on a
previously adjudicated arrearage of $2,237.27, and ordered wife
to submit evidence that she was engaged in rehabilitative
counseling. The written statement in lieu of a transcript does
not disclose the necessity for further counseling. The court
also ordered the parties to appear in December 1996 for review.
At the December hearing, the court ordered husband to pay monthly
spousal support of $500 for January through March 1997, after
which time support was suspended.
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A judgment of the trial court is presumed correct and will
not be set aside on the ground that it is contrary to the
evidence unless it appears that such judgment is plainly wrong or
without evidence to support it. See Dodge v. Dodge, 2 Va. App.
238, 242, 343 S.E.2d 363, 365 (1986); Code § 8.01-680. "The
burden is upon the party appealing to point out the error in the
decree and to show how and why it is wrong." Broom v. Broom, 15
Va. App. 497, 503, 425 S.E.2d 90, 94 (1992). On review, "the
decision of the trial judge is peculiarly entitled to respect[,]
for he saw the parties, heard the witnesses testify and was in
closer touch with the situation than [the appellate court], which
is limited to a review of the written record." Brown v. Brown,
218 Va. 196, 200, 237 S.E.2d 89, 92 (1977).
Wife argues that the trial court erred when it suspended her
spousal support despite the evidence of her medical and
rehabilitative conditions. We find no error on the part of the
trial court based upon the record presented to us on appeal.
Although the certified statement of facts in lieu of a transcript
notes that wife presented evidence of her medical and
rehabilitative conditions, the statement includes no details from
which we can hold that the trial court was plainly wrong.
Wife further argues that, under the parties' agreement, the
sole criterion for establishing the level of spousal support was
wife's employment. We disagree. We read the agreement to
require nothing more than evidence otherwise sufficient to
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establish changed circumstances warranting a modification of
support.
Finally, wife appears to contend that the trial court based
its decision solely on the ground that she lives with a man who
is not her husband. Citing Hollowell v. Hollowell, 6 Va. App.
417, 369 S.E.2d 451 (1988), she asserts that the trial court
erred when it so limited its decision. We again disagree.
In Hollowell, the sole evidence given by the husband to support
his motion to end his spousal support obligation was alleged
misconduct of the wife. The wife's misconduct, not economic
factors, was the basis offered in Hollowell to justify the
termination of support. Here, because of the limited nature of
the factual record on appeal, we cannot say that the trial
court's decision was based upon misconduct rather than economic
factors. The evidence indicated that wife's economic
intertwining with her new partner impacted her need for continued
support from husband. Wife testified that her boyfriend was
gainfully employed and contributed to their "joint living
expenses." She added that "except for a marriage license, the
relationship enjoyed by [wife] and her boyfriend was 'husband and
wife.'" The statement of facts fails to show the dollar amounts
of the joint living expenses. By failing to show that the trial
court's decision was clearly wrong for economic reasons or was
based upon an improper factor such as wife's misconduct, wife has
not met her burden to prove its decision must be reversed.
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Accordingly, because wife has failed to meet her burden to
show that the trial court's decision was plainly wrong, for the
reasons stated, its judgment is affirmed.
Affirmed.
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