Barrie Alan Gillis v. Barbara Sweeny Gillis

                     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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