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DECEMBER 21, 1999

Record No. 0108-99-3





Present: Judges Benton, Bray and Bumgardner

Argued at Salem, Virginia


James W. Updike, Jr., Judge

J. Emmette Pilgreen, IV (Harvey S. Lutins;
Harvey S. Lutins & Associates, on brief), for appellant.

David D. Beidler (Legal Aid Society of Roanoke
Valley, on brief), for appellee.


George Roger Barton (husband) appeals the
denial of his motion to reduce spousal support to Louvenia C.
Barton (wife). The husband claims the trial court erred in
finding that he did not show a material change in circumstances
warranting a modification. Finding no error, we affirm.

The parties were married July 16, 1994 and
separated April 4, 1996. They had no children. The trial court
heard the evidence of spousal support on August 6, 1997, but
nothing indicates that it announced its decision before entering
the final decree of divorce on October 16, 1997. In that decree,
the trial court ordered the husband to pay $450 per month in
permanent spousal support.

On November 10, 1997, the husband filed a
petition in the juvenile and domestic relations district court to
suspend or reduce the support obligation. He appealed an adverse
decision to the circuit court, which heard the matter de novo
October 1, 1998. The husband proffered a consent order entered on
September 23, 1997 requiring him to pay child support for an
illegitimate child born in August 1996. The consent support order
was entered between the hearing on permanent spousal support and
the entry of the final decree setting that support.

On appeal, the husband argues the trial court
erred in refusing to consider his obligation to support his
illegitimate child. He contends the trial court precluded him
from showing a material change in circumstances by failing to
consider the September 23, 1997 order.

"In a petition for modification of child
support and spousal support, the burden is on the moving party to
prove [by a preponderance of the evidence] a material change in
circumstances that warrants modification of support." Richardson
v. Richardson
, 30 Va. App. 341, 347, 516 S.E.2d 726, 729
(1999) (citation omitted). The petitioner must demonstrate a
material change in circumstances from the most recent support
award. See Antonelli v. Antonelli, 242 Va. 152,
154, 409 S.E.2d 117, 119 (1991) ("following entry of a final
decree . . . a party seeking a change in court-ordered . . .
support" must prove a material change); Keel v. Keel,
225 Va. 606, 611, 303 S.E.2d 917, 921 (1983) (child support); Layman
v. Layman
, 25 Va. App. 365, 367, 488 S.E.2d 658, 659 (1997)
(court considered change occurring after entry of final order
establishing support); Street v. Street, 25 Va. App. 380,
488 S.E.2d 665 (1997) (en banc) (considering
husband’s sale of business after entry of decree establishing
support); Moreno v. Moreno, 24 Va. App. 190, 195, 480
S.E.2d 792, 795 (1997) (spousal support). The material change
must relate to either the need for support or the ability to pay.
See Richardson, 30 Va. App. at 347, 516 S.E.2d at
729; Moreno, 24 Va. App. at 195, 480 S.E.2d at 795.
"In the absence of a material change in circumstances,
reconsideration of support . . . would be barred by principles of
res judicata." Hiner v. Hadeed, 15 Va.
App. 575, 580, 425 S.E.2d 811, 814 (1993) (child support); see
also Hammers v. Hammers, 216 Va. 30, 31, 216 S.E.2d
20, 21 (1975).

In this case, the husband showed no material
change in circumstances that occurred after the entry of the
spousal support order on October 16, 1997. The husband knew about
the child support order before the trial court entered its final
decree fixing his spousal support obligation. He would have known
of his obligation to support his child before the court ordered
him to do so on September 23, 1997. The consent order would have
required negotiation, preparation, circulation, and presentation
before that date.

When fashioning spousal support awards, courts
"must consider all relevant evidence concerning the needs of
the [recipient spouse] and the ability of the [payor] to provide
for those needs." Hiner, 15 Va. App. at 578, 425
S.E.2d at 813 (citations omitted). Courts must make support
awards based upon "current circumstances and what the
circumstances will be ‘within the immediate or reasonably
foreseeable future.’" Srinivasan v. Srinivasan, 10
Va. App. 728, 735, 396 S.E.2d 675, 679 (1990) (citation omitted).
In considering a denial of a request for a reduction of support
payments, courts must look to "objective evidence available
at the time of the previous award in order to assess what
increases in expenses might reasonably have been expected." Furr
v. Furr
, 13 Va. App. 479, 482, 413 S.E.2d 72, 74 (1992). See
also Blank v. Blank, 10 Va. App. 1, 4, 389 S.E.2d
723, 724 (1990).

The husband’s obligation to support an
illegitimate child was not an uncertain future circumstance. See
Jacobs v. Jacobs, 219 Va. 993, 995, 254 S.E.2d 56, 58
(1979) (material "changes are not fairly predictable").
He had the opportunity to provide the trial court with the
reasonably foreseeable obligation to support the child at the
August 8, 1997 hearing. For whatever reason he failed to do that,
the husband still had ample time to inform the trial court of the
consent child support order before it decreed spousal support. Cf.
Hughes v. Gentry, 18 Va. App. 318, 325, 443 S.E.2d 448,
453 (1994) (prejudice to moving party outweighed where he
"has failed to act diligently in discovering [relevant] evidence or, . . ., has withheld evidence for personal or
tactical reasons").

The child support order was not a change of
circumstance; it was not a development that had occurred
unexpectedly. The order was merely new evidence of an existing
circumstance which the husband had chosen not to present. The
husband cannot withhold known, relevant information and then
claim that the information withheld establishes a change of
circumstance. The husband failed to show a material change in
circumstances warranting a modification in his spousal support
obligation. Accordingly, we affirm the trial court.



Benton, J., concurring.

I agree with the majority that the consent
order, which required the husband to pay child support, was
entered prior to the spousal support award and, therefore, could
not provide a basis to support a modification of the spousal
support award. Thus, I too would affirm the judgment entered
December 11, 1998.

I do not join the suggestion contained in the
last two paragraphs of the majority opinion that the husband’s
moral obligation to support the child, although not determined by
court order, was a circumstance that, if proved at the August 6,
1997 hearing, might have entitled him to relief in the
determination of spousal support. The order fixing his child
support was the event that would constitute a change in
circumstances that might have entitled him to relief in the
determination of spousal support. Until that order was entered,
his monetary obligation had not been determined; thus, the trial
judge would have had no basis for assessing an expense in
determining his spousal support obligation. Cf. Kaplan
v. Kaplan
, 21 Va. App. 542, 548, 466 S.E.2d 111, 114 (1996)
(noting that the father’s knowledge at the time of the divorce
proceeding of his future change in income did not bar the
father’s petition to reduce support when the actual change in his
income occurred after the divorce decree was entered).

Code ? 20-108 permits the trial judge to
modify a support order based upon a finding of a change in
circumstances. The statute provides that "[t]he court may,
from time to time after decreeing as [to custody and support of
minor children], . . . revise and alter the decree . . . as the
circumstances of the parents and benefit of the children may
require." Id. The statute also provides that
"[n]o support order may be retroactively modified." Id.
Code ? 20-108 reflects a policy that, absent special
circumstances, the event giving rise to a petition for
modification based on changed circumstances must occur
"after [the trial judge has] decree[d] as provided in [Code] ? 20-107.2." Id. Cf. Hughes v. Gentry,
18 Va. App. 318, 321, 443 S.E.2d 448, 450 (1994) (holding that in
applying Code ? 20-108 in a custody proceeding the trial
judge must determine "whether there has been a change of
circumstances since the most recent . . . award").

In this case, the consent order, which gave
rise to the husband’s obligation to support the child, was
entered September 23, 1997, three weeks before entry of the
divorce decree fixing the amount of spousal support. Although the
evidentiary hearing regarding spousal support had already
occurred, the husband made no effort to present the consent order
to the trial judge for consideration in setting spousal support.
Clearly, if he had done so and had been unsuccessful in reopening
the proceeding, see Rowe v. Rowe, 24 Va. App. 123,
144, 480 S.E.2d 760, 770 (1997) (holding that "[t]he
granting or denying of a motion to hear additional evidence is
within the sound discretion of the trial court"), this case
would be in a different posture. This record, however, contains
no evidence of circumstances that prohibited the husband from
petitioning the judge in the divorce proceeding to consider the
obligation created by the consent order before fixing the amount
of spousal support. Thus, I concur in the judgment.



[1] In her brief, the wife asserts that the final order was
entered October 1, 1998. Thus, she contends we lack jurisdiction
to hear this appeal because the notice of appeal was not timely
filed. That claim lacks merit because the October 1, 1998 order
merely directed "the Clerk . . . to forthwith deliver the .
. . sum [of $4,190, which was deposited to assure the husband’s
compliance,] to George R. Barton upon proper
identification." The order entered December 11, 1998 denied
"the motion of [the husband] seeking a decrease or
suspension of spousal support." Husband timely appealed from
the December 11, 1998 order.