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SEPTEMBER 19, 2000

Record No. 0726-00-1

Present: Judges Elder, Bumgardner and Humphreys





S. Bernard Goodwyn, Judge


(Gregory S. Larsen; Roy, Larsen, Romm &
Lascara, on brief), for appellant.

(Henry M. Schwan, on brief), for appellee.

S. Grey Folkes (husband) appeals from an order
entered by the circuit court on February 23, 2000. On appeal,
husband contends the trial court erred by (1) making its modified
award of spousal support retroactive to the date of filing of the
petition for modification; and (2) refusing to find that husband
had a change in income sufficient to justify a material change in
circumstances. Pamela A. Folkes (wife) seeks an award of
appellate attorney’s fees. 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.

Procedural Background

In a final decree of divorce entered on May 22,
1992, the trial court ordered husband to pay wife monthly spousal
support in the amount of $4,500. In 1993, husband filed a
petition to decrease the amount of spousal support, and wife
filed a petition seeking an increase in spousal support. By order
entered June 24, 1994, the trial court denied both petitions and
ordered husband to continue paying $4,500 per month for spousal
support. In its order, the trial court decreed that "all
further matters pertaining to spousal support are hereby
transferred" to the juvenile and domestic relations district
court (juvenile court).

On January 12, 1998, husband filed a petition
with the juvenile court to decrease his spousal support
obligation. Shortly thereafter, wife petitioned the juvenile
court to increase husband’s support obligation.

On May 27, 1998, the juvenile court granted
husband’s petition and reduced husband’s monthly spousal support
obligation to $2,500 beginning May 1, 1998. The juvenile court
denied wife’s petition for increased support and for attorney’s

On May 29, 1998, wife noted her appeal to the
circuit court.

The parties presented evidence at a September
8, 1999 hearing. On September 9, 1999, the trial court ruled that
"no material change in circumstances has occurred which
would warrant an increase in the spousal award [to the
wife]." The trial court also found that husband "has
not shown a change in his income sufficient to prove a material
change in circumstances which would warrant" a decrease in
spousal support; however, the circuit court found that wife was
voluntarily underemployed. As a result, the circuit court reduced
husband’s monthly support obligation to $3,250 "effective
February 1, 1998, and that’s based upon the understanding that
the petition was filed in January of 1998."

By letter dated September 24, 1999, husband’s
attorney asked the trial court to reconsider the retroactive
application of its award and "request[ed] that the Decree be
effective October 1, 1999." By letter to counsel dated
November 22, 1999, the trial court indicated that, "[u]pon
review of the authority provided to the Court, the effective date
for the modification of spousal support granted by this Court
will be October 1, 1999," the month following the trial
court’s ruling. The trial court directed husband’s attorney to
prepare and circulate an order reflecting that ruling. By letter
dated November 29, 1999, wife’s attorney objected to the trial
court’s new ruling and asked that the trial court reconsider the
matter before "entering any Decree." By letter to
counsel dated December 13, 1999, the trial court declared its
intention to "reconsider the ruling in its letter of
November 22, 1999" and to render a ruling on the matter at
the hearing "already on the Court’s docket for December 15,

On February 23, 2000, the trial court entered a
final order memorializing its decision. In it, the trial court
denied wife’s request for increased spousal support and granted
husband’s request for a reduction in spousal support. The trial
court ruled that husband shall pay monthly spousal support of
$3,250 per month "beginning March 1, 1998." A
transcript of the December 1999 hearing was not made a part of
the record.

Retroactive Application of
Circuit Court Order

Although the trial court conveyed concurrent
jurisdiction to the juvenile court in 1994 pursuant to Code
? 20-9(c), it retained "continuing jurisdiction to
consider those issues, should it exercise its discretion to do
so." Crabtree v. Crabtree, 17 Va. App. 81, 84, 435
S.E.2d 883, 886 (1993).

Despite the absence in the Code of a statute
expressly allowing a trial court to modify and award spousal
support retroactively to the filing of the petition in juvenile
court, the legislature "did not ignore the possibility of
altering spousal support awards retroactively." Reid v.
, 245 Va. 409, 412, 429 S.E.2d 208, 210 (1993). By
enacting Code ? 20-112, the legislature "specifically
addressed" and provided for "retroactive
modification" of spousal support orders "when
‘proceedings are reopened to increase, decrease or terminate
maintenance and support for a spouse or for a child,’ but only
‘with respect to any period during which there is a pending
petition for modification, but only from the date that notice of
such petition has been given to the responding party.’" Reid,
245 Va. at 412, 429 S.E.2d at 210 (quoting Code ? 20-112).
"Whether to make modification of a support order effective
during a period when a petition is pending is entirely within the
discretion of the trial court." O’Brien v. Rose, 14
Va. App. 960, 965, 420 S.E.2d 246, 249 (1992).

Code ? 16.1-296(A) allows a party to
appeal "any final order or judgment of the juvenile court
affecting the rights or interests of any person coming within its

"[A]n appeal to the circuit court from a
court not of record under Code ? 16.1-136 annuls the
judgment of the inferior tribunal as completely as if there had
been no previous trial. . . . [S]uch a trial de
novo in the circuit court grants to a litigant every
advantage which would have been his had the case been tried
originally in such court."

Box v. Talley, 1 Va. App. 289, 292, 338
S.E.2d 349, 351 (1986) (quoting Walker v. Department of Public
, 223 Va. 557, 563, 290 S.E.2d 887, 890 (1982)).

"Orders of the district court requiring
support of a spouse remain in full force and effect until
reversed or modified by the court to which an appeal has been
, or until the entry of a decree in a suit for
divorce instituted in a circuit court, in which decree provision
is made for spousal support." Martin v. Bales, 7 Va.
App. 141, 145-46, 371 S.E.2d 823, 826 (1988) (holding that
juvenile court’s award of spousal support remained in force after
circuit court heard husband’s appeal but failed in its divorce
decree to address spousal support) (emphasis added).

Husband filed his petition for modification in
the district court in January 1998. After wife appealed the
juvenile court’s September 9, 1999 decision modifying the circuit
court’s original 1993 award of spousal support, the circuit court
conducted a trial de novo. Unlike the situation in Bales,
the circuit court specifically addressed spousal support in its
decree; therefore, its ruling annulled the decision by the
juvenile court. All that remained was for the trial court to
exercise its discretion and determine what date, within the range
set forth by Code ? 20-112, to require husband to make his
first modified support payment. The record established that
husband filed his petition for modification in the juvenile court
on January 12, 1998 and wife received personal service on
February 10, 1998; therefore, the March 1, 1998 retroactive date
for the award to take effect was within the "period during
which there [wa]s a pending petition for modification." Code
? 20-112. Accordingly, we find no error in the trial
court’s ruling on this issue.

Modification of Spousal

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). "We will not disturb the trial court’s decision
where it is based on an ore tenus hearing, unless
it is ‘plainly wrong or without evidence to support it.’" Furr
v. Furr
, 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992)
(citation omitted).

At the ore tenus hearing, husband
testified his 1993 gross income was $685,969 and his 1998 gross
income was approximately $686,000. At the conclusion of the
hearing, the trial court found that "husband has not shown a
change in his income sufficient to prove a material change in
circumstances, which warrant a modification of support." In
so ruling, the trial court explained that "husband’s income
in 1998 appears to have been about the same as it was in 1993,
the last full year before the Court’s previous ruling." This
decision is supported by evidence and is not plainly wrong.

Wife’s Request for Costs and
Attorney’s Fees Defending Appeal

Based on the circumstances of this case, we
deny wife’s request for attorney’s fees and costs. See Gayler
v. Gayler
, 20 Va. App. 83, 87, 455 S.E.2d 278, 280 (1995)
(denying request for appellate attorney’s fees where husband had
reasonable grounds for appeal).

Accordingly, the decision of the circuit court
is summarily affirmed, and wife’s request for fees and costs is



[1] Pursuant to Code ? 17.1-413, recodifying Code
? 17-116.010, this opinion is not designated for