COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
BRENDA LOUISE HUNTER
MEMORANDUM OPINION *
v. Record No. 0773-97-1 PER CURIAM
SEPTEMBER 9, 1997
DARRELL EUGENE HUNTER
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
(Frederic L. Moschel; Cumming, Hatchett &
Jordan, on brief), for appellant.
(Stephen F. Forbes, on brief), for appellee.
Brenda Louise Hunter (wife) appeals the trial court's
decision to reduce her spousal support. Wife contends that the
trial court abused its discretion (1) by failing to include as
financial resources of Darrell Eugene Hunter (husband) all income
tax overpayments, voluntary pension contributions and earnings,
and monetary contributions made by his live-in girlfriend; and
(2) in finding a material change in circumstances justifying a
reduction in spousal support. 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. Rule 5A:27.
Determination of Income
Wife contends that the trial court abused its discretion by
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
failing to include in its determination of husband's income all
estimated income tax overpayments made by husband's corporation,
all monetary contributions by husband's live-in girlfriend, and
all retirement fund contributions and earnings. We disagree.
The evidence established that husband's earnings, as
reported on his 1996 W-2, were $83,170. The trial court
determined that, due to some portion of the additional payments
received by husband or retained by his corporation, husband's
income was $90,925. It is apparent that the trial court found
credible husband's explanations concerning the corporation's
financial management, including the retained earnings and tax
overpayments. Also, the trial court heard the evidence in 1995
and was aware of the fluctuations in husband's business.
Contributions to living expenses made by husband's live-in
girlfriend were strictly voluntary contributions. There is no
statutory basis to require the trial court to include these
voluntary contributions in husband's income. See
Code § 20-107.1(1).
Based upon the evidence presented at the hearing and the
trial judge's familiarity with the case, the judge ruled that
husband's income was higher than that reported on his 1996 W-2
statement. The court was not required to incorporate in
husband's income all items identified by wife, particularly in
light of the demonstrated fluctuations in husband's business.
We cannot say that the trial court's determination of husband's
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income was an abuse of discretion or was unsupported by the
evidence.
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Reduction of Spousal Support
Code § 20-109 provides that "upon petition of either party
the court may increase, decrease or terminate spousal support and
maintenance that may thereafter accrue . . . as the circumstances
may make proper." "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." Schoenwetter v. Schoenwetter, 8 Va.
App. 601, 605, 383 S.E.2d 28, 30 (1989).
Wife contends that the trial court abused its discretion in
finding that husband established a material change in
circumstances sufficient to justify a reduction in her monthly
spousal support from $1,338 to $936. However, based upon the
evidence heard ore tenus, the trial court found that there was a
material change in circumstances from those in existence at the
time of the last hearing. The court noted that husband's
fluctuations in income were not as wide ranging as previous
fluctuations, and also noted that the parties presented differing
evidence as to their respective incomes.
Wife's earnings had increased, although wife testified that
the store where she worked would be replaced by another store and
she was not guaranteed employment at the new store. While wife
testified that her monthly expenses totaled approximately $3,500
and were substantially unchanged from the time of the last
hearing, husband presented evidence that wife's monthly
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expenditures were closer to $2,000. Wife testified that she had
drawn $9,700 on a $15,000 equity line of credit to make home
repairs, but she did not testify concerning any effect on her
monthly expenses. Wife denied living with her boyfriend and
denied receiving any financial assistance from him, although she
admitted he contributed to some household food expenses.
Evidence supported the court's conclusion that husband's
income had declined and wife's income had increased since the
last hearing. Accordingly, the trial court did not abuse its
discretion in determining that there was a material change in
circumstances. Similarly, in light of the evidence found
credible by the trial court, we cannot say that the court's $400
reduction in monthly spousal support was an abuse of discretion.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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