COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata
Argued at Salem, Virginia
FLAVIA DIAZ de TANGER
MEMORANDUM OPINION * BY
v. Record No. 0509-95-3 JUDGE LARRY G. ELDER
APRIL 23, 1996
WILLIAM HENRY TANGER, III
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Roy B. Willett, Judge
David A. Furrow (Law Office of David A.
Furrow, on briefs), for appellant.
Harwell M. Darby, Jr. (Glenn, Flippin,
Feldmann & Darby, on brief), for appellee.
Flavia Diaz de Tanger (wife) appeals the trial court's
decision to deny her request for resumption of spousal support.
Wife asserts that the trial court erred in ruling that there had
been no material change in circumstances since the trial court's
last spousal support determination. Because we agree with wife,
we reverse the trial court's decision and remand the case for
further action consistent with this opinion.
The record reveals that wife and William Henry Tanger, III
(husband) divorced in 1981. On July 18, 1990, after a series of
spousal support orders, the Circuit Court for the City of Roanoke
ordered husband to pay wife five hundred dollars per month in
spousal support beginning in July 1990. On March 14, 1992, the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
trial court determined that wife could have and should have been
employed. The trial court therefore terminated spousal support
after deciding to impute income to wife in the amount necessary
to sustain her reasonable living expenses, which were
approximately $2,800 per month. Implicit in this ruling is the
trial judge's finding that in 1992 positions were available to
allow wife to earn sufficient income to meet her needs.
Wife filed a petition to reinstate the case on the trial
court's docket on January 31, 1994. On January 10, 1995, the
trial court conducted an ore tenus hearing on the matter of
whether a material change in circumstances warranted an award of
$2,000 per month spousal support in wife's favor. Wife, who was
age forty-eight at the time of the hearing, presented evidence
that since the trial court's 1992 order, she had filed for
bankruptcy and received a discharge of most of her debts,
totalling approximately $20,000.00. Wife testified that the
lender of her student loan in the amount of $6,032.63 had
demanded immediate payment. Wife testified that she had been
forced to reside with her daughter since August 1994 because she
could not afford to live by herself. Wife's monthly expenses in
1991 totalled $2,802.00, while in 1995, her monthly expenses
totalled $2,855.00.
Testimony also revealed that wife had not located full-time
employment in Roanoke, Northern Virginia, or other locations.
Despite possessing a bachelor's degree in art history and Spanish
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literature, the only employment wife had secured since 1992 were
jobs involving part-time menial labor or part-time Spanish to
English translation in federal courts. A professional vocational
consultant testified that wife possessed a "very good" potential
to locate entry level employment in Roanoke, paying an average of
five to seven dollars per hour.
Evidence showed that husband owned an advertising agency and
real estate. Husband's gross income for years 1992 through 1994
was $55,627.00, $97,439.00, and $70,000.00 respectively.
After hearing this evidence, the trial court ruled that no
material change in circumstances existed and denied wife's
request. Wife now appeals to this Court.
As the record reveals, wife filed a motion to increase
spousal support pursuant to Code § 20-109, which states that
"[u]pon petition of either party the court may increase, decrease
or terminate spousal support and maintenance that may thereafter
accrue, whether previously or hereafter awarded, as the
circumstances may make proper." Because she was the moving
party, wife was "required to prove both a material change in
circumstances and that this change warrant[ed] a modification of
support." Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383
S.E.2d 28, 30 (1989). "'Changed circumstances' must bear upon
the financial needs of the dependent spouse or the ability of the
supporting spouse to pay." Hollowell v. Hollowell, 6 Va. App.
417, 419, 369 S.E.2d 451, 452 (1988).
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In considering a change in circumstances, Code § 20-107.1
directs the trial court to consider, among other issues, the
"earning capacity" of each party. The party seeking spousal
support must earn as much as he or she reasonably can to reduce
the amount of the support needed. Konefal v. Konefal, 18 Va.
App. 612, 614, 446 S.E.2d 153, 154 (1994). "Under appropriate
circumstances, a court may impute income to a party seeking
spousal support," id., which is what the trial court did in 1992
and again after hearing the evidence in support of wife's 1994
petition.
On appeal, "we will not disturb the trial court's decision
where it is based on an ore tenus hearing, unless it is plainly
wrong or without evidence in the record to support it." Furr v.
Furr, 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992). We view
the evidence and all reasonable inferences therefrom in the light
most favorable to the prevailing party below. Alphin v. Alphin,
15 Va. App. 395, 399, 424 S.E.2d 572, 574 (1993). Even viewing
the evidence in the light most favorable to husband, we hold that
the trial court erred in finding that wife did not present
sufficient evidence to prove a material change in circumstances.
Wife proved that a material change in circumstances occurred
subsequent to 1992, the most recent judicial review of the award.
See Schoenwetter. In 1992, the trial court found that wife was
voluntarily underemployed, terminated her spousal support, and
imputed income to wife. In this case, evidence revealed that
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wife was not voluntarily underemployed. Wife presented credible
evidence with accompanying documentation to support her
contention that she had performed a wide-ranging employment
search, encompassing a variety of positions in different
geographical locations. Because wife lacked an ability to earn
income from a full-time position, sufficient to meet her
expenses, she underwent a material change in circumstances since
1992.
While full-time entry level jobs existed in the Roanoke
area, these jobs paid an average of five to seven dollars per
hour. If wife accepted full-time employment at this salary, she
still would have been unable to meet her alleged monthly
expenses, which had not materially changed between 1992 and 1995,
without spousal support from husband. Part-time employment as a
translator did not provide wife sufficient funds to meet her
monthly expenses. Finally, husband's increase in annual income
constituted a material change in circumstances, in light of
wife's inability to find suitable employment to support herself,
in that it affected his ability to pay spousal support.
Because the trial court's decision was plainly wrong, we
reverse its decision and remand with instructions to consider
whether the parties' material change in circumstances warrants a
modification of support.
Reversed and remanded.
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