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Support modification correctly denied

Virginia Lawyers Weekly//April 3, 2023

Support modification correctly denied

Virginia Lawyers Weekly//April 3, 2023

Even though husband was in an accident that prevented him from working, his income actually increased following the accident due to his receipt of Social Security benefits. As a result, the trial court correctly determined there were no changed circumstances warranting modification of his spousal support obligation.


When the parties divorced, they “signed a separation and property settlement agreement … under which the husband agreed to pay her $2,000 per month for spousal support.

The agreement provided the support award could be modified if there was “‘a material change in either party’s financial circumstances that justifies a modification to the amount due for spousal support.’”

In October 2019,  husband was struck by a vehicle while crossing a highway. “[H]e sustained significant injuries to his right leg, left arm, and spine.

“Two weeks later, he filed a motion to modify the spousal support award. The husband alleged he was ‘unable to work or produce an income’ and ‘unable to fulfill his spousal support obligation as currently ordered.’ …

“The circuit court entered a pretrial scheduling order setting the hearing on the motion for August 31, 2021. Husband belatedly filed his exhibit and witness lists. Wife objected. Husband sought a continuance. The court continued the matter for May 3, 2022 and refused to extended the discovery filing deadline.

“On the morning of the rescheduled hearing, the husband filed a motion to vacate the circuit court’s August 30, 2021 order and continue the hearing again, arguing that the order precluded him from presenting new evidence of the parties’ current circumstances.

“After considering the husband’s motion and the arguments of the parties, the court ‘vacat[ed] the portion of the order which would not allow [it] to hear present day evidence’ but did not continue the hearing. In denying the husband’s continuance request, the court noted that the parties could present evidence of their current income and expenses.”

Ultimately, the trial court ruled there no changed circumstances to warrant a support modification.


“[W]hen the husband sought a continuance, he did not proffer to the circuit court the specific evidence that he claims he was unable to present. His counsel merely stated the desire to ‘create new exhibits’ addressing ‘his deteriorating medical condition and current financial state,’ supplementing the discovery between the parties. …

“Without a proffer of the allegedly excluded evidence, the record does not show that the husband was prejudiced by the absence of the unspecified evidence. Accordingly, we affirm on this issue.”

Excluded testimony

“The husband contends that the circuit court erred by excluding testimony about the ‘factors and circumstances leading to [the] [a]greement’ regarding spousal support.

“He believes the court erred by not admitting his testimony about how the parties reached the original agreement and not allowing him to question the wife about her income in 2019.

“After the circuit court sustained the wife’s relevance objections, however, the husband did not proffer the excluded testimony for the record. …

“The failure to proffer precludes consideration of this particular claim. Without a proffer of the expected testimony, this Court simply cannot determine whether any such evidence was relevant and admissible. Therefore, we do not consider this assignment of error.”

Changed circumstances

Husband “believes that the court erroneously considered only his income and no other factors, such as the depletion of his assets and his inability to continue working. The husband argues that his injuries from the debilitating accident constituted ‘a totally unexpected and substantial material change in circumstances affecting his ability to pay spousal support.’ …

“Consistent with the husband’s pleading, the court limited consideration of the case to the husband’s ability to pay based on his income.

“Although the court acknowledged the severity of the husband’s injuries and his inability to work, it found … that those factors did not actually reduce his income. … [T]he court was unpersuaded that the accident negatively impacted the husband’s ability to pay.

“We recognize that the husband argues, as he did below, that the parties’ separation agreement was not based on his income and the circuit court should have considered other factors such as his depletion of assets.

“However, the husband’s written motion to modify support specified only his injuries and resulting inability ‘to work or produce an income’ as bases for the motion. A circuit court can ‘base its judgment or decree’ only on ‘facts … alleged’ or rights that have ‘been pleaded and claimed.’ …

“Husband … specifically pled a material change in circumstances based only on his physical condition and inability to work. It was therefore appropriate for the circuit court to limit its consideration of the case to the factors the husband relied on in his pleading. …

“[T]he sole question for this Court to resolve is whether the circuit court erred in finding that the husband failed to prove that his injuries constituted a material change in circumstances since the original award that reduced his ability to pay.

“The circuit court found that, even if it assumed that the husband’s 2018 income was anomalously low, he had introduced no income evidence except that he ‘ma[d]e more money’ following the accident ‘than what he had [made] at the time the agreement was signed.’

“The court’s finding is supported by the husband’s testimony that his income was approximately $5,300 for the year in which the parties entered into their separation agreement.

“Although his gross revenue that year was $163,203, he deducted $157,672 from that amount to net an income of around $5,300. In contrast, the husband testified that he received $30,156 a year from Social Security at the time of the instant hearing.

“Based on this evidence, the court found that the husband’s income was higher at the time of the hearing than when the parties entered into the separation agreement.”

Appellate fees and costs

“The wife seeks an award of attorney fees and costs on appeal. … In deciding whether to make such an award, the Court may consider factors including whether the requesting party has prevailed, whether the appeal ‘lacked substantial merit’ or was frivolous, or whether other reasons support an award of attorney fees and costs. …

“The husband’s claims ultimately lack merit, but at least one is not frivolous. Considering all the equities of the case …, we deny the wife’s request for appellate attorney fees and costs.”

Howard v. Howard, Record No. 0819-22-4, March 14, 2023. CAV (unpublished opinion) (Decker). From the Circuit Court of Loudoun County (Irby). Carla F. Ward for appellant. Craig E. White for appellee. VLW 023-7-110, 12 pp.

VLW 023-7-110

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