Opinion
Record No. 0675-92-4
April 27, 1993
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY THOMAS A. FORTKORT, JUDGE.
Dennis J. Smith (Shoun, Smith Bach, P.C., on brief), for appellant.
David D. Masterman (Cohen, Gettings, Dunham Harrison, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
On March 9, 1992, the trial court increased Mrs. Rippert's spousal support. Mr. Rippert contends that the trial court abused its discretion when it made this award. He argues that Mrs. Rippert's needs and expenses have decreased and that the amount awarded exceeds her needs and expenses. We find no merit in these arguments and affirm the judgment of the trial court.
During their twenty-two year marriage, the parties moved approximately every eighteen months. Mrs. Rippert cared for the couple's children and entertained for Mr. Rippert. She did not pursue a career. At the time of separation, the parties lived in a large house in Fairfax County. Mrs. Rippert had her own automobile and had access to charge cards with which to make purchases. During their marriage, Mr. Rippert earned a Navy pension and took classes to enhance his education.
In 1976, when the parties separated, Mr. Rippert earned $55,000 per year, including his Navy pension. The December 29, 1980 divorce decree ordered Mr. Rippert to pay $1,600 per month for spousal support and maintenance. At that time, Mrs. Rippert earned no income and her expenses totaled $3,999. She then occupied the marital home. On December 28, 1984, the court increased the support payments to $2,000 per month. At this time, Mr. Rippert earned $125,000 per year, including his Navy pension. Mrs. Rippert earned $379 per month bringing her total income to $2,379 per month. The marital home had been sold and she no longer occupied it. Her expenses totaled $4,524 per month, and she had $21,887 in debt.
In 1991, Mrs. Rippert suffered from poor eyesight, bad teeth, bad feet, gynecological problems, and hip problems. On December 19, 1991, the court heard Mrs. Rippert's petition for an increase in spousal support. At that time, Mrs. Rippert earned $866 per month. She had $3,973 in monthly expenses, and her debt totaled $17,487. The debt included a $1,662 attorney's fee retainer charged on her credit card. This expense was also included on her financial statement as $200 for legal expenses. Her financial statement also reflected a $355 automobile payment, including a $50 depreciation charge, and automobile insurance costs. Some of her credit card charges also included automobile maintenance and insurance charges. Mr. Rippert testified that he earns over $255,000 per year plus approximately $25,000 in retirement income, but that his employment would terminate in March, 1993, when he reached the age of sixty-five.
On March 9, 1992, the trial court ordered an increase in support payments for Mrs. Rippert to $4,000 per month and awarded her $2,500 attorney's fees.
Mr. Rippert first argues that the trial court abused its discretion in awarding an increase in spousal support to Mrs. Rippert when her needs and expenses have decreased following the previous support hearing. Mr. Rippert claims that Mrs. Rippert failed to present evidence that her needs warranted an increase in support and, in fact, when subtracting the expenses that were duplicated on her financial statement, she realized a net decrease of more than $800 in her expenses. Instead, Mr. Rippert argues that the support increase reflects the trial judge's consideration of the propriety of the amount of prior support payments as well as Mr. Rippert's near-future retirement. Lastly, Mr. Rippert claims that the trial court erred when it failed to hold that Mrs. Rippert failed to carry her burden of proof after it specifically found that Mrs. Rippert's expenses had remained substantially the same as in 1980.
Code § 20-109 provides for modification of a spousal support award as "the circumstances may make proper". Support orders are not "final" and may be modified. Code § 20-109. The circumstances "must bear upon the financial needs of the dependent spouse or the ability of the supporting spouse to pay." Hollowell v. Hollowell, 6 Va. App. 417, 419, 369 S.E.2d 451, 452 (1988). Determining the amount of spousal support to be awarded falls within the sound discretion of the trial court and will not be disturbed on appeal unless justice so requires.Dukelow v. Dukelow, 2 Va. App. 21, 27, 341 S.E.2d 208, 211 (1986).
The evidence before the trial court established that Mrs. Rippert could not meet her expenses and that her lifestyle had diminished from that established during the marriage. Her health had deteriorated. Mr. Rippert's income had increased from $125,000 in 1984 to $255,000 in 1991. This increased income, coupled with Mrs. Rippert's increased expenses and personal needs, constitutes a material change of circumstances justifying a change in the amount of support. See id; see also Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989). The trial court correctly found that Mrs. Rippert was entitled to an increase in spousal support.Dukelow, 2 Va. App. at 27, 341 S.E.2d at 211; see also Furr v. Furr, 13 Va. App. 479, 483, 413 S.E.2d 72, 75 (1992).
Mrs. Rippert's expenses should not be recalculated. Mr. Rippert raised no "double-charged" contentions before the trial judge.See Rule 5A:18. Furthermore, the evidence is not inconsistent and does not support Mr. Rippert's "double-charging" argument.
Finally, the trial court's 1991 increase in support did not constitute a retroactive modification of the 1984 award. The trial court correctly based the support award on Mrs. Rippert's current needs and Mr. Rippert's resources and not on anticipated, future changes in circumstances. When the trial court mentioned that Mr. Rippert would be retiring in fifteen months, it merely stated the obvious — that Mr. Rippert's change in circumstance might warrant another modification. We find no abuse of discretion in the award of attorney's fees.
For these reasons, we affirm the decision of the trial court.
Affirmed.