Opinion
Record No. 2267-91-1
December 7, 1993
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH EDWARD W. HANSON, JR., JUDGE.
Oldric J. LaBell, Jr. (Colby D. Rehmert, pro se, on brief), for appellant.
No brief or argument for appellee.
Present: Judges Baker, Coleman and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Acting on the petition of Colby D. Rehmert (husband), the trial court reduced husband's previously ordered spousal support obligation to Ann Marie Rehmert (wife) from $1100 to $1000 per month. Husband complains on appeal that this reduction was inadequate and resulted from wife's perjured testimony. We disagree and affirm the decision.
The parties are fully conversant with the record, and a recitation of the facts is unnecessary to this appeal.
Upon petition of either party, a court may modify a spousal support award "as the circumstances may make proper." Code § 20-109. However, the party seeking a modification must first "prove both a material change in circumstance and that this change warrants a modification of support." Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989);Furr v. Furr, 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992). Further, this "material change" must have occurred subsequent to the most recent judicial review of the award. See Hiner v. Hadeed, 15 Va. App. 575, 577, 425 S.E.2d 811, 812 (1993).
Once the court concludes that the evidence justifies reconsideration of the existing order, it must determine the revised award, if any, "in light of new circumstances."Blank v. Blank, 10 Va. App. 1, 4, 389 S.E.2d 723, 724 (1990) (quoting Jacobs v. Jacobs, 219 Va. 993, 995, 254 S.E.2d 56, 58 (1979)). "[T]he law's aim is to provide a sum [sufficient] . . . to maintain the spouse in the manner to which the spouse was accustomed during the marriage, balanced against the other spouse's ability to pay." Id. To guide the court, Code § 20-107.1 identifies numerous factors which must be considered in ascertaining the appropriate amount, if any. Gamble v. Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635, 644 (1992). Because "[w]e assume that [the trial court] followed the statutory mandate," the trial judge need not assign a particular weight to each factor, provided the record contains evidence which relates to each of them. McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 161 (1985).
Here, the record reflects that the trial court found a change in circumstances sufficient to warrant a review of the prior award. Evidence of the relevant statutory factors was before the trial court, and we are unable to find that the award was unsupported by the record or constituted an abuse of discretion. "Neither can we substitute our judgment as to the proper conclusion to be drawn from the evidence for those reached by the trial court." Thomasson v. Thomasson, 225 Va. 394, 399, 302 S.E.2d 63, 66 (1983). "Where the trial court's decision is based upon an ore tenus hearing, its determination will not be disturbed on appeal unless it is plainly wrong or without evidence in the record to support it."Schoenwetter, 8 Va. App. at 605, 383 S.E.2d at 30;Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988). Husband's contention that the result was occasioned by wife's perjured testimony was an issue for the factfinder to resolve. Klein v. Klein, 11 Va. App. 155, 161, 396 S.E.2d 866, 869 (1990).
Accordingly, we find no error and affirm the decision of the trial court.
Affirmed.