JOKICH v. JONES




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JOKICH

v.

JONES


COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Kelsey and Senior Judge Hodges

Record No. 1203-03-4

MICHAEL JOKICH

v.

MARILEE JONES

 

MEMORANDUM OPINION[1]
PER CURIAM

NOVEMBER 12, 2003

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Jane Marum Roush, Judge

(J. Patrick McConnell; David M. Zangrilli, Jr.; Odin, Feldman
&

Pittleman, P.C., on briefs), for appellant.

(Edward V. O’Connor, Jr., on brief), for appellee.

Michael Jokich (husband) appeals the decision of the circuit
court awarding Marilee Jones

(wife) a divorce and incorporating the parties’ "Marital
Agreement" (Agreement), resolving all

issues of equitable distribution and spousal support. On appeal,
husband contends the trial court

erred by (1) finding wife’s failure to secure employment since
the execution of the Agreement did

not constitute a material change of circumstances, (2) finding
the reduction of wife’s living

expenses resulting from her relocation did not constitute a
material change of circumstances, (3)

finding the increase in the value of wife’s assets since the
date of the Agreement did not constitute a

material change of circumstances, and (4) failing to find wife
"is not in need of spousal support."

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. See Rule 5A:27.

Background

On appeal, we view the evidence and all reasonable inferences in
the light most favorable

to appellee as the party prevailing below. See McGuire v.
McGuire, 10 Va. App. 248, 250,

391 S.E.2d 344, 346 (1990).

The parties married on September 28, 1986 and separated on
September 18, 1998. On

November 4, 1998, they executed the Agreement. Pursuant to the
Agreement, husband agreed to

pay wife $3,000 per month in spousal support. From 1992 until
the parties’ separation, wife did not

work outside the home. The Agreement contains no provision
requiring wife to secure

employment. Wife testified that since 1998 she has pursued a
career as a personal life coach. Over

the eight months preceding the hearing, she earned only $890.
Wife was diagnosed with breast

cancer in 1992, underwent treatment, and suffered a radiation
burn to her left shoulder. As a result

of the burn she has decreased sensation and low mobility in her
dominant hand. She receives

disability payments under a private disability policy.

In June 2002, wife sold her house in Reston, Virginia and moved
to Danville, Kentucky,

where she rents an apartment. She placed the proceeds from the
sale of the house in a money

market account. She testified she planned to use the proceeds to
purchase a home in Kentucky. Dr.

Douglas M. Brown testified for husband as an expert in the field
of economics. Brown explained

the cost of living in Danville, Kentucky is approximately
thirty-seven percent less than it is in

northern Virginia. However, wife presented evidence
demonstrating her living expenses in

Kentucky were comparable to her living expenses in Virginia.

Wife’s stock in American State Financial Corporation was worth
$485,656 in 1998. Wife

testified she currently owns 10,040 shares of stock in the
corporation, with a value of $806,400.

The trial court found that wife’s stock, while doing well,
"performed as it has historically

performed" and that husband’s "assets have done well
also . . . grow[ing] roughly at the same

percentage as hers."

The parties’ Agreement included a provision that either party
could seek a court order

modifying support on a showing of a substantial change in
circumstances.

Analysis

I. – IV.

"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). "The

determination whether a spouse is entitled to [a modification of
spousal] support, and if so how

much, is a matter within the discretion of the [trial judge] 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). See also Taylor v. Taylor,
14 Va. App. 642, 649, 418 S.E.2d 900,

904 (1992).

Husband presented evidence regarding wife’s earning capacity
and asked the court to

impute income to her, arguing she is voluntarily unemployed.
However, as the court noted, wife

was not employed at the time the parties executed the Agreement
and the contract includes no

requirement for wife to seek employment. The court found wife’s
"earning capacity in her

situation is pretty much the same as it was in 1998[, t]he only
difference is that she’s moved to

Kentucky in the meantime." The court did not err in
concluding that wife’s employment status

did not represent a change in circumstances.

Similarly, the difference between the cost of living in Kentucky
and northern Virginia did

not represent a material change in circumstances. As the trial
court noted, wife’s housing costs

are speculative because she was renting an apartment at the time
of the hearing and looking for a

house to purchase. The court found "there is housing stock
that is the same" as the type of

housing she sold in Virginia. Wife presented evidence
demonstrating her living expenses in

Kentucky were comparable to her living expenses in Virginia. The
record supports the trial

court’s conclusion that the difference in living expenses did
not represent a material change in

circumstances.

The parties’ Agreement includes a provision that in any action
for modification of

spousal support, "the value of the Wife’s assets . . .
and the growth thereof shall be included as a

basis for computing income to the Wife." The court found
that although wife’s assets performed

well, they performed as they had historically performed.
Additionally, husband’s assets

increased at a comparable rate.

On this evidence the trial court found that husband had not
demonstrated a material

change in circumstances justifying a modification of spousal
support. We cannot say the trial

court abused its discretion.

Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.

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