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the Virginia Court of Appeals.
COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Record No. 0845-03-4
PATRICK FRANCIS PECK
CATHERINE E. PECK
DECEMBER 9, 2003
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
R. Terrence Ney, Judge
(Edna Ruth Vincent; Richard J. Colten; Colten Cummins Watson
Vincent P.C., on briefs), for appellant.
(Diane Hutson-Wiley, on brief), for appellee.
Patrick Francis Peck (husband) appeals a decision of the trial
court denying his motion to
reduce his spousal support obligation to Catherine E. Peck
(wife). Husband contends the trial court
erred by: (1) finding no change in circumstances to warrant a
reduction in spousal support; (2)
failing to find that wife enjoyed a higher standard of living at
the trial than that established during
the marriage; and (3) applying the "parental
generosity" rule in the spousal support proceeding.
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.
On appeal, we view the evidence and all reasonable inferences in
the light most favorable to
the prevailing party. See Alphin v. Alphin, 15 Va. App. 395,
399, 424 S.E.2d 572, 574 (1992). The
parties were divorced by final decree of divorce entered on
September 17, 1998. Pursuant to the
final decree, husband paid wife spousal support of $4,500 per
month, plus an additional $500 per
month until the marital residence sold. Husband also paid child
support for the parties’ four
children. At the time of the divorce, husband’s income was
between $156,000 and $160,000 per
year and wife earned about $5,000 per year.
On August 25, 2000, nunc pro tunc to July 21, 2000, the
trial court entered a consent order
(consent order) wherein husband agreed to pay wife $7,200 in
monthly spousal support. At that
time, wife was earning about $15,000 in annual income. The
record does not show husband’s
annual income at the time the consent order was entered. In June
2002, wife filed a motion for
review and modification of spousal support. In October 2002,
husband filed a petition for a
reduction of spousal support based on wife’s $40,500 increase
in annual income.
On February 19, 2003, the trial court held a hearing on the
parties’ motions. Husband
presented evidence that he earns over $684,000 per year,
including bonuses. Wife presented
evidence that she earns $55,500 per year. The trial court found
that no changes in circumstances
warranted a reduction in husband’s spousal support obligation.
The trial court dismissed wife’s
request for review and modification of spousal support.
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 material change in
circumstances must have occurred after the most
recent judicial review of the award and ‘must bear upon the
financial needs of the dependent spouse
or the ability of the supporting spouse to pay.’" Moreno
v. Moreno, 24 Va. App. 190, 195, 480
S.E.2d 792, 795 (1997) (citations 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).
Although we agree with husband that the evidence proved changes
in the parties’ economic
circumstances, we cannot say that the trial court erred in
finding that the changes did not warrant a
modification in support. In 2000, husband agreed to pay wife
$7,200 per month in spousal support.
At the time of the February 2003 hearing, wife’s annual income
had increased by over $40,000
since the entry of the consent order. However, from 1998 to
2003, husband’s annual income had
increased from about $160,000 to over $684,000. The financial
resources of the parties is a factor to
consider when determining whether to reduce spousal support. See
Code ? 20-107(E)(1). Clearly,
as he concedes, husband has the ability to continue to pay the
$7,200 monthly spousal support
Husband contends the trial court "misapplied" the
standard of living factor in reaching its
decision not to reduce spousal support. See Code ?
20-107.1(E)(2). However, during an exchange
with husband’s counsel at the hearing, the trial judge
specifically stated that he understood the
standard of living established during the marriage was a factor
to consider in his decision.
Furthermore, the evidence failed to show that wife is enjoying a
lifestyle greater than the standard of
living established during the marriage, as husband asserts. The
record contains limited evidence
about the lifestyles of the parties both during and after the
marriage. However, the evidence showed
that, after the divorce, mother moved with the four children
from the marital residence to a smaller
house. Two of the children are now in college, and wife stated
that she pays $1,000 per month
toward their tuition. In addition, wife drives a three-year-old
Toyota Camry. Wife testified she
does not live an extravagant lifestyle and she tries to live
within her means. Wife also testified that
if spousal support was reduced, she will have to sell her
current house. Therefore, after considering
the limited evidence in the record regarding the standard of
living established by the parties both
prior to and after their divorce, we cannot say the evidence
showed that wife’s standard of living
exceeds that established during the marriage.
In addition, we disagree that the trial court erroneously
allowed wife to share in husband’s
post-divorce increases in income. The record shows that, at the
time of the divorce, husband earned
about $160,000 in annual income, and he paid spousal support in
the amount of $4,500 per month.
In August 2000, husband agreed to an increase in the spousal
support award and he began paying
wife $7,200 per month in spousal support. The record does not
show the amount of husband’s
income at the time the consent order was entered. In 2003,
although the evidence showed that
husband’s annual income had increased by $524,000 per year
since the time of the divorce, the trial
court did not increase husband’s spousal support obligation.
Rather, the trial court determined that
the parties’ circumstances, one of which was husband’s
increase in income, did not warrant a
reduction in the amount of the monthly spousal support award the
parties had mutually agreed to in
2000. Thus, the trial court’s ruling did not erroneously allow
wife to share in husband’s
post-divorce success. For this same reason, husband’s
"parental generosity" argument is without
Husband requests that this Court award him his attorney’s fees
and costs or, in the
alternative, remand the issue of costs and attorney’s fees to
the trial court. After considering the
circumstances of this case, husband’s requests are denied. See
O’Loughlin v. O’Loughlin, 23
Va. App. 690, 695, 479 S.E.2d 98, 100 (1996).
Accordingly, the decision of the trial court is summarily
Code ? 17.1-413, this opinion is not designated for publication.