Opinion
Record No. 1742-92-2
September 28, 1993
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY W. PARK LEMMOND, JR., JUDGE.
C. Gilbert Hudson, Jr., for appellant.
Thomas H. Rose, Jr. (E. Beale Carter, Jr., on brief), for appellee.
Present: Chief Judge Moon, Judges Benton and Fitzpatrick.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Linda M. Tipton appeals from a ruling reducing Maurice E. Tipton's spousal support obligation. She contends that the trial judge erred (1) in relying solely upon an increase in her earnings to reduce the spousal support award; and (2) in failing to award attorney fees to her. She also contends that, if we reverse the trial judge's order reducing spousal support, she is entitled to an equitable recoupment of the spousal support she lost as a result of the trial judge's order. For the reasons that follow, we affirm the judgment.
I.
The evidence proved that the parties were divorced by a final decree entered in 1989. Pursuant to the decree, the husband was ordered to pay the wife $500 per month spousal support and $300 per month child support for their only child. In the fall of 1991, wife left her teaching position at a private school to take a job at a public school. The change in position resulted in an increase of her gross earnings by $5,500 a year over her previous salary. The wife's monthly gross income has increased by $1,061 since the original decree and the husband's monthly gross income has increased by $794.
Citing the wife's salary increase, the husband petitioned the juvenile court for an elimination or reduction of spousal support. The wife then petitioned for an increase in child support. Both petitions were denied. On appeal to the circuit court, the trial judge modified the support order by reducing the amount of spousal support to $100 per month and increasing the amount of child support to $500 per month. The wife appealed from the portion of the order that reduced spousal support.
II.
"Spouses deemed entitled to support have the right to be maintained in the manner to which they were accustomed during the marriage, but their needs must be balanced against the other spouse's financial ability to pay." Floyd v. Floyd, 1 Va. App. 42, 45, 333 S.E.2d 364, 366 (1985). "In order to invoke the court's continuing jurisdiction to modify its decree, the party seeking a change has the burden of proving by a preponderance of the evidence, a material change in circumstances justifying a modification of the decree." Edwards v. Lowry, 232 Va. 110, 112, 348 S.E.2d 259, 261 (1986). Thus, to obtain relief, the evidence must prove a change in circumstances that "bear[s] 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). The changed circumstances must also justify a modification of the decree. Lowry, 232 Va. at 112, 348 S.E.2d at 261.
The trial judge in this case found a "substantial change in circumstances." The evidence supports that finding. Uncontradicted evidence established that the wife's salary increased by $5500 a year after the original support order was entered.
The trial judge also concluded that the change justified reducing the husband's original support obligation. Although an increase in the dependent spouse's salary does not ipse dixit require an equivalent reduction in the spousal support award, the final order reflects that the trial judge reduced the award after he considered the factors set forth in Code § 20-107.1, the factors which a court must consider when setting initial support. The record proves that the wife's salary increased. The record also establishes that the trial judge considered the standard of living as a factor in his decision. Evidence was introduced concerning the standard of living and the attorneys for both parties argued the issue.
In addition, the trial judge increased by $200 per month the amount of child support that the husband was required to pay. Thus, the trial judge's decision to reduce the spousal support payment was based upon consideration of the wife's increased income, the original spousal support payments, the parties' standard of living, and the increase in child support. On the record before us, we cannot say the trial judge abused his discretion in concluding that the changed circumstances justified the reduction in the spousal support payments.
III.
It is well established that "[a]n award of attorney fees is a matter submitted to the trial court's sound discretion and is reviewable on appeal only for an abuse of discretion."Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). We find no evidence that the trial judge abused his discretion in ruling that each party was required to bear his and her own attorney fees.
IV.
In view of the Supreme Court's ruling in Reid v. Reid, ___ Va. ___, 429 S.E.2d 208 (1993), the wife's assertion of recoupment has no merit.
Accordingly, we affirm the decision.
Affirmed.