COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia
JULIE ANN INGALLS
MEMORANDUM OPINION * BY
v. Record No. 0758-02-1 JUDGE WILLIAM H. HODGES
OCTOBER 8, 2002
ROBERT WAYNE INGALLS
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
McClanahan Ingles (Martin, Ingles & Ingles,
Ltd., on brief), for appellant.
Kenneth B. Murov for appellee.
Julie Ann Ingalls, wife, appeals a decision of the trial
judge denying her motion for an increase in the monthly spousal
support payments she receives from Robert Wayne Ingalls, husband.
Wife contends the trial court erred in: (1) finding that
husband's income had not materially increased; (2) finding that
husband's increase in savings after April 2000 did not demonstrate
a material change in husband's income; (3) not increasing
husband's spousal support obligation; (4) not increasing husband's
spousal support obligation based on the difference in incomes
available to husband and wife; and (5) failing to award wife
attorney's fees. Finding that the trial judge did not abuse his
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
discretion in refusing to increase the monthly spousal support
award, we affirm the trial judge's rulings.
BACKGROUND
The parties were divorced by final decree entered on
January 20, 2000. The parties had four children who live with
wife. On April 28, 2000, the trial judge held a hearing on
several issues, including spousal support. By orders entered on
August 3, 2000 and November 13, 2001, nunc pro tunc to April 28,
2000, the trial judge ordered husband to pay wife spousal
support of $1,800 per month.
Husband retired from the military in July 2001. He
receives monthly income from a civilian job and his military
retirement benefits. On November 13, 2001, husband filed a
motion for a reduction in his monthly spousal support obligation
based upon his reduction in income since his retirement.
Husband also alleged that wife's income had increased since she
had been receiving her share of his military retirement
benefits. Wife filed a motion for an increase in spousal
support on the grounds that husband's expendable income had
increased and that husband's contributions to savings and tax
deferred investments had increased since the determination of
the permanent spousal support award in April 2000.
The trial judge held hearings on the motions on December
11, 2001 and January 31, 2002. By order entered on February 27,
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2002, the trial judge denied the motions of both parties,
finding that neither party had established a material change in
circumstances since the April 28, 2000 hearing. Both parties
appealed the February 27, 2002 order. Husband's appeal is
addressed in a separate opinion in Record No. 0635-02-1.
ANALYSIS
A party seeking modification of spousal support pursuant to
Code § 20-109, bears the burden of proving "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). See also Barton v. Barton, 31 Va. App. 175,
177-78, 522 S.E.2d 373, 374-75 (1999). "The material change 'must
bear upon the financial needs of the dependent spouse or the
ability of the supporting spouse to pay.'" Street v. Street, 25
Va. App. 380, 386, 488 S.E.2d 665, 668 (1997) (en banc) (citation
omitted). "The determination whether a spouse is entitled to [a
reduction or increase in spousal] support, and if so how much, is
a matter within the discretion of the [trial] court and will not
be disturbed on appeal unless it is clear that some injustice has
been done." Dukelow v. Dukelow, 2 Va. App. 21, 27, 341 S.E.2d
208, 211 (1986).
I. through III. Husband's Income
Wife contends husband's income has increased 7.76% since
April 2000 and that this increase constitutes a material change in
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circumstances justifying an increase in her spousal support award.
Wife presented evidence that husband had increased his savings and
investments almost $24,000 since April 2000. She also asserted
that husband had increased his contributions to his 401(K) plan
and made extra payments toward the principal of a mortgage on
rental property he owns. Wife asserted that her debt exceeds her
savings and she is unable to pay her expenses with the present
amount of spousal support.
Husband presented evidence that wife's figures were
inaccurate and were based on one-time payments and transition
income from his military career to civilian employment in 2001.
He stated that he was paid in advance for work performed overseas
and that, when he refinanced the property he owns in Alabama, he
reimbursed himself for expenses related to the property. Husband
also asserted that he received a tax refund of over $3,000 for the
year 2000 and payment for unused vacation when he retired, which
are non-recurring sources of income.
In April 2000, the trial judge found that husband's monthly
income was $7,387. At the January 31, 2002 hearing, the trial
judge accepted husband's evidence concerning his change in
income since 2000. "The credibility of the witnesses and the
weight accorded the evidence are matters solely for the fact
finder who has the opportunity to see and hear that evidence as
it is presented." Sandoval v. Commonwealth, 20 Va. App. 133,
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138, 455 S.E.2d 730, 732 (1995). The trial judge found that,
subsequent to husband's retirement from the military, husband
was earning $7,150 per month from his civilian employment and
military retirement benefits. Thus, husband currently earns
$237 per month, or about 3%, less than he did in April 2000.
The trial judge did not abuse his discretion in accepting
husband's calculations and in finding that this is not a
material change in circumstances warranting a modification in
the spousal support award.
IV. Difference in Incomes
Wife contends the trial judge erred in failing to increase
her spousal support award where husband's monthly income, after
making child and spousal support payments, is equal to or
greater than her monthly income, which is used to support wife
and the parties' four children. Although, under the trial
judge's ruling, husband pays about forty percent of his monthly
income in spousal and child support, under these circumstances,
the trial judge did not abuse his discretion in refusing to
modify the spousal support award. The trial judge found that
wife's expenses had increased only nominally since April 2000.
Furthermore, since husband retired from the military, wife has
been receiving an additional $905 per month for her share of
husband's retirement benefits. As the trial judge stated, "the
numbers have changed a little bit, but on an analysis, they
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haven't changed much." The trial judge found that the parties
were "basically in the same place they were in April of 2000,"
and that if he modified the spousal support award, the change
"would be so minimal that it would be not worth a wad."
Accordingly, the trial judge did not abuse his discretion in his
ruling.
V. Attorney's Fees
Wife asserts that the trial judge erred in refusing to
grant her motion for attorney's fees. "An award or denial of
attorney's fees is a matter committed to the sound discretion of
the trial court." Alphin v. Alphin, 15 Va. App. 395, 406, 424
S.E.2d 572, 578 (1992). "The key to a proper award of fees is
'reasonableness under all of the circumstances revealed by the
record.'" Ragsdale v. Ragsdale, 30 Va. App. 283, 297, 516
S.E.2d 698, 705 (1999) (citation omitted). Based on the
circumstances of this case, we cannot say the trial judge abused
his discretion in declining to award wife attorney's fees.
Accordingly, the decision of the trial judge is affirmed.
Affirmed.
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