COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Elder
Argued at Richmond, Virginia
DONNA G. REECE
OPINION BY
v. Record No. 0946-95-2 JUDGE LARRY G. ELDER
APRIL 30, 1996
WILLIAM M. REECE
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge
Andrea R. Stiles (Kelly Harrington Johnson;
Williams, Mullen, Christian & Dobbins, on
brief), for appellant.
Murray J. Janus (Deanna D. Cook; Bremner &
Janus, on brief), for appellee.
Donna G. Reece (wife) appeals the trial court's decision to
reduce William M. Reece's (husband) monthly spousal support
obligation. Wife contends that husband became voluntarily
underemployed when he lost his job and failed to find comparable
employment in the Richmond, Virginia area or when he refused to
accept comparable employment in Tampa, Florida. Finding that the
trial court did not abuse its discretion, we affirm its decision.
I.
FACTS
Wife and husband married on January 24, 1968, separated on
July 1, 1993, and divorced on December 7, 1994. Until October
1993, R.J. Reynolds Tobacco Company employed husband in Richmond
as a regional accounts manager, paying him approximately $145,000
per year. Unemployed during most of the marriage, wife found
employment after the separation, which paid her $11,600 per year.
On July 28, 1993, the trial court ordered husband to pay
pendente lite spousal support to wife in the amount of $1,000 per
month.
Although R.J. Reynolds Tobacco Company eliminated husband's
position in October 1993, it offered him an equivalent paying
position as a senior chain accounts manager in Tampa, Florida.
Husband declined the employment offer. In October 1993, R.J.
Reynolds Tobacco Company gave husband a severance package worth
approximately $110,000 per year. The package terminated in March
1995, seventeen months later. After the separation and divorce,
wife continued to earn approximately $11,500 per year. On
December 7, 1994, the trial court granted the parties a divorce,
accepted the commissioner's spousal support recommendation, and
ordered husband to continue to pay wife $1,000 per month in
spousal support.
On February 6, 1995, two months after the trial court's
order, husband filed a motion to decrease his spousal support
payments based on a material change in circumstances. At the
time of the trial court's hearing on husband's motion, husband
was employed as a real estate agent in Ashland, Virginia.
Husband testified that his gross income had decreased to $1,752
per month, which gave him insufficient funds with which to pay
wife $1,000 per month in spousal support. Husband also testified
that his severance pay from R.J. Reynolds Tobacco Company ended
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in March 1995. Finally, husband testified that he believed it
could take three years "to really get to the point where [he
could be] making some money." Wife presented no evidence showing
other comparable jobs were available to husband. The trial court
found that husband sustained his burden of proof and reduced the
amount of monthly spousal support owed to wife from $1,000 to
$430 per month.
II.
MODIFICATION OF SPOUSAL SUPPORT
On appeal, 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 (1992). A presumption exists that the trial
court based its decision on the evidence presented and properly
applied the law. Williams v. Williams, 14 Va. App. 217, 221, 415
S.E.2d 252, 254 (1992). Furthermore, a trial court's judgment
will not be disturbed on appeal unless plainly wrong or without
evidence to support it. Jennings v. Jennings, 12 Va. App. 1187,
1189, 409 S.E.2d 8, 10 (1991).
Code § 20-109 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." "The
moving party in a petition for modification of support is
required to prove both [1] a material change in circumstances and
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[2] that this change warrants a modification of support."
Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28,
30 (1989). See Furr v. Furr, 13 Va. App. 479, 481, 413 S.E.2d
72, 73 (1992); Code § 20-109.
Husband satisfied the first prong by a preponderance of the
evidence, when he proved that his financial circumstances had
materially changed following the trial court's last decree after
he had involuntarily lost his job. See Edwards v. Lowry, 232 Va.
110, 112, 348 S.E.2d 259, 261 (1986). Husband testified that in
October 1993, R.J. Reynolds Tobacco Company eliminated his job as
a regional accounts manager, which paid him $145,000 per year.
At the time of the trial court's support modification hearing,
husband no longer received his severance pay from R.J. Reynolds
Tobacco Company. Instead, husband was employed as a real estate
agent, earning a substantially reduced monthly income of $1,700.
Wife did not dispute any of this evidence, which, when viewed as
a whole, demonstrated a material change in husband's financial
circumstances.
Aside from having to prove a material change in
circumstances, husband had to prove that this change warranted a
support modification. In discharging this burden, one of the
circumstances that the chancellor must consider is whether the
changed circumstances arose from his own voluntary
underemployment. Edwards, 232 Va. at 112-13, 348 S.E.2d at 261.
A trial court may use its broad discretion in deciding whether a
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material change in circumstances warrants a modification in the
amount of support. 1
Both parties agree that husband did not voluntarily choose
to leave his job as a regional accounts manager; rather, R.J.
Reynolds Tobacco Company eliminated his position through no
apparent fault of husband's. Both parties also agree that
husband voluntarily elected not to relocate in order to accept
comparable employment in Tampa, Florida. Wife argues that as a
consequence the trial court was required to impute income to
husband because he became voluntarily underemployed when: (1) he
refused to market his skills and locate comparable employment in
the Richmond, Virginia area, and (2) he declined R.J. Reynolds
Tobacco Company's offer of comparable employment in Florida.
The parties agree that a supporting spouse has the right to
change employment voluntarily or embark upon a new career.
Nothing in the record rebuts the contention that husband's
acceptance of a job as a real estate agent in the Richmond area
was a "bona fide and reasonable business undertaking" entered
into after he involuntarily lost his prior employment. Rawlings
v. Rawlings, 20 Va. App. 663, 669, 460 S.E.2d 581, 583 (1995).
Although at the time of the hearing, husband was making less
money per year than his former position paid, he expected his
1
Unlike spousal support cases, in cases involving the
modification of child support obligations, a trial court must
calculate child support according to the presumptive amounts
outlined in Code § 20-108.2. Such presumptive amounts do not
exist in cases involving spousal support.
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income to increase within three years.
Furthermore, the record does not show that husband refused
comparable employment in Richmond merely for his personal
convenience and without consideration of his family. Cochran v.
Cochran, 14 Va. App. 827, 830, 419 S.E.2d 419, 421 (1992). There
is nothing in the record to show that such employment existed in
Richmond. The trial court specifically asked wife if she had
"any evidence to show that [husband] had an opportunity to have
employment other than [the Tampa job]?" Wife responded that she
did not have any such evidence. Neither did wife introduce any
evidence to show that husband, in accepting employment as a real
estate agent, deliberately minimized his income for the purpose
of reducing his ability to support wife, who was not living under
necessitous circumstances. Therefore, husband met his burden of
showing a material change in circumstances that warranted a
support modification.
Whether a supporting spouse is voluntarily unemployed or
underemployed when he or she refuses to accept comparable
employment in another geographical area is a question of first
impression in Virginia. After reviewing the law of this state
and other jurisdictions, we find no authority for a per se rule
which would hold that a supporting spouse always becomes
voluntarily underemployed or unemployed when he or she refuses to
accept an offer of comparable employment in another geographic
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location. 2 We decline the invitation to adopt a bright line
rule. A trial court shall consider factors in addition to
refusing comparable employment in another locale when deciding
whether either spouse is voluntarily unemployed or underemployed.
See O'Brien v. Rose, 14 Va. App. 960, 964, 420 S.E.2d 246, 249
(1992).
As explained above, the trial court made the factual finding
that husband, through no fault of his own, became involuntarily
unemployed when his employer eliminated his position. The trial
court also found that husband voluntarily elected not to accept
comparable employment in Tampa, Florida. These two findings of
fact, by themselves, did not allow the trial court to determine
whether to impute income to husband. This case, therefore,
differs from Antonelli and other cases that are factually similar
to Antonelli. In Antonelli, the trial court made a factual
2
None of the cases cited by wife supports her contention
that because husband refused his employer's transfer offer, he
became voluntarily underemployed. For example, in Butler v.
Butler, 217 Va. 195, 227 S.E.2d 688 (1976), the Supreme Court
held that the physician-husband's voluntary decision to remain in
a lower-salaried, career-oriented, staff position sacrificing
immediate income for future expectations could not be permitted
to penalize his former wife by reducing her support payments. In
Antonelli v. Antonelli, 242 Va. 152, 156, 409 S.E.2d 117, 119-20
(1991) the Supreme Court upheld the trial court's decision that
the husband, who voluntarily left his position as a salaried
stock broker to become a commissioned stock broker, only to
suffer a decrease in income, was not allowed to reduce his child
support payments to his former wife. Similarly, in Taylor v.
Taylor, 203 Va. 1, 121 S.E.2d 753 (1961), the Supreme Court
held that the husband, who voluntarily left his job to accept a
lower-paying job, was not allowed to reduce his support payments.
See also Barnhill v. Brooks, 15 Va. App. 696, 427 S.E.2d 209
(1993).
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finding that the supporting spouse voluntarily chose to leave his
existing job to pursue other employment and therefore declined to
grant the supporting spouse's petition to reduce support.
Antonelli, 242 Va. at 156, 409 S.E.2d at 119-20. Here, because
husband involuntarily left his job, the trial court's inquiry
differed from the onset. Trial courts, in cases such as this,
must exercise their discretion in determining whether the
obligor's actions after being involuntarily terminated constitute
voluntary underemployment and whether income should therefore be
imputed.
In deciding whether failure to relocate constitutes
voluntary unemployment or underemployment to justify imputing
income, the trial court shall consider all the evidence in each
case. In exercising its discretion, a trial court should
consider a number of factors, including but not limited to: (1)
the supporting spouse's business ties to the community; (2) the
supporting spouse's familial ties to the community; (3) whether
the supporting spouse's relocation would have an undue
deleterious effect upon his or her relationship with his or her
children or other family members; (4) the length of time in which
the supporting spouse has resided in the community; (5) monetary
considerations which would impose an undue hardship upon the
supporting spouse if he or she were forced to relocate; (6) the
"quality of life" in the respective communities; (7) the
geographic distance between the respective communities; and (8)
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the severity of the burden which a failure to relocate would have
on the obligee spouse.
In this case, the trial court did not abuse its discretion
in not imputing income after finding that husband did not become
voluntarily unemployed or underemployed when he refused to
relocate to Tampa, Florida. The record reveals that the trial
court had before it sufficient facts to make such a
determination. First, the record reveals that husband, who was
forty-nine years old, had strong familial ties to Richmond.
Husband supported one daughter, who attended a local college and
lived with husband in Richmond, and he had another grown daughter
who also lived in the area. Second, husband had substantial
business ties to Richmond. He worked for R.J. Reynolds Tobacco
Company for an extended period of time while operating a small
golf supply business, and then took a job as a real estate agent
in nearby Ashland, Virginia. Third, wife was not destitute nor
did she suffer from health problems that necessitated a greater
amount of financial support. Finally, the great geographic
distance between Richmond and Tampa was a relevant consideration
for the trial court.
In light of the foregoing reasons, we affirm the judgment of
the trial court.
Affirmed.
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Baker, J., concurring in result.
I join with the majority only because I believe that, viewed
in the light most favorable to the prevailing party below, the
evidence supports the trial court's decision; therefore, I cannot
say that its decision was plainly wrong. If the trial court had
held on this same evidence that husband had become voluntarily
underemployed, I believe that, viewing the evidence in the light
most favorable to wife, we would have found evidence to support
that decision and we could not have said that it was plainly
wrong or that an abuse of discretion had been shown.
In matters of this nature, with this kind of evidence,
generally, the decision of the trial court that views the
witnesses must be upheld.
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