COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
BARRIE ALAN GILLIS
MEMORANDUM OPINION *
v. Record No. 2290-95-4 PER CURIAM
MAY 14, 1996
BARBARA SWEENEY GILLIS
FROM THE CIRCUIT COURT OF
FAIRFAX COUNTY
Stanley P. Klein, Judge
(Daniel J. Glanz, on briefs), for
appellant.
(James A. Watson II; Surovell, Jackson,
Colten & Dugan, on brief), for appellee.
Barrie Alan Gillis (husband) appeals the decision of the
circuit court denying his motion to reduce or terminate spousal
support paid to Barbara Sweeney Gillis (wife). Husband raises
three issues on appeal: (1) whether the trial court erred in
considering wife's expenses relating to the former marital home;
(2) whether the trial court erred in considering the college and
other expenses paid by the wife for the benefit of the parties'
adult son; and (3) whether the trial court erred by awarding
support which exceed wife's reasonable expenses minus her actual
and imputed income. 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.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Rule 5A:27.
Code § 20-109 provides that "upon petition of either party
the court may increase, decrease or terminate spousal support and
maintenance that may hereafter 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). "When a trial court
hears evidence ore tenus, its findings are entitled to the weight
of a jury verdict, and will not be disturbed on appeal unless
plainly wrong or without evidence to support them." Floyd v.
Floyd, 1 Va. App. 42, 45, 333 S.E.2d 364, 366 (1985).
Husband sought a reduction in the monthly spousal support he
paid to wife, alleging that the decrease in wife's expenses and
increase in her income constituted a material change in
circumstances justifying a reduction or termination of spousal
support. Husband did not allege that he was unable to pay the
amount of support initially awarded. The trial court found that
there had been a material change in circumstances, but that this
change did not warrant a reduction in the amount of spousal
support.
Mortgage Expenses
Husband contends that, by considering wife's expenses
related to the former marital home, the trial court erroneously
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held husband responsible for obligations assigned to wife as part
of the parties' equitable distribution. See Gamble v. Gamble, 14
Va. App. 558, 576-77, 421 S.E.2d 635, 646 (1992). Husband's
contention confuses the division of the parties' marital assets,
under which wife was assigned both the equity and the debt
associated with the former marital home, with his obligation
under the final decree to continue to contribute to wife's
reasonable living expenses. Unlike the situation in Gamble, the
record does not demonstrate that the amount of spousal support
"effectively required [husband] to satisfy the mortgage
obligations on the marital home he was required to convey to
[wife]." Id. at 577, 421 S.E.2d at 647.
The trial court examined the evidence relating to wife's
expenses, considered the additional statutory factors, and ruled
that there had not been a material change in circumstances
warranting a reduction in support. Its decision was supported by
evidence and is not plainly wrong.
Expenses Relating to Adult Son
In its oral ruling on husband's motion, the court noted that
husband had previously included amounts he paid for his son's
college education among his debts and expenses, and that "it was
principally [husband] who testified that he had made a commitment
to his children to pay for their college educations." The court
noted that it had considered those costs as an expense to be
borne by both parties at the time support was initially computed.
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Husband discontinued payment of his son's expenses upon entry of
the final decree of divorce. The court did not find credible
husband's assertion that he discontinued those payments because
of the amount of permanent spousal support awarded, noting that
previously husband was paying support pendente lite.
The college expenses of the parties' son were presented to
the court as a reasonable expense and were considered by the
court in its initial deliberations. Therefore, we find no error
in the court's inclusion of these costs as reasonable expenses
for wife during its review of husband's motion to reduce support.
Amount of Support
The trial court noted in its oral ruling on husband's motion
that husband had raised many of the same issues in his initial
motion for reconsideration. In both instances, the court
rejected husband's attempts to set spousal support based solely
upon a mathematical calculation rather than upon a consideration
of the statutory factors as a whole. The court found no material
change in circumstances warranting a change in the amount of
support. This decision is supported by evidence and is not
plainly wrong.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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