Opinion
Record No. 0500-92-4
March 9, 1993
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY THOMAS D. HORNE, JUDGE
Avelina S. Belardi for appellant.
Mark A. Barondess (Irve Charles Le Moyne, Jr.; Sandground, Barondess West, on brief), for appellee.
Present: Judges Benton, Bray and Fitzpatrick
Argued at Alexandria, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Geoffrey T. Williams (husband) appeals an order of the trial court which denied his motion for reduction in spousal support; found him in contempt for violating several provisions of the parties' property settlement agreement; and denied release of certain personal property held by the Commissioner in Chancery to ensure his compliance with prior court orders. Finding no error, we affirm the judgment of the trial court.
I. SPOUSAL SUPPORT
The parties are familiar with the facts of the case, therefore, we recite only those facts necessary to a disposition of the issues before the Court. The parties were divorced on January 22, 1991. The final decree of divorce affirmed, ratified and incorporated the parties' property settlement agreement [hereinafter "the agreement"] dated November 12, 1990. The agreement provided, in pertinent part, that:
25.(d) The parties agree that either of them may file a petition for a reduction or increase in support under the terms of paragraphs 14 and 25(a) only, based upon a material change in circumstances. . . .
Conflicting evidence was presented on the motion for a reduction in spousal support. Husband testified that his financial condition had materially changed since the entry of the final decree of divorce. He alleged that the deterioration in the real estate market and personal problems left him unable to make payments on various unsecured debts. Further, he argued that at the time he signed the agreement a sale was pending on an improved piece of real estate which he hoped would assist with payments required under the agreement. At the time of his motion for reduction in support he had not sold the property. In addition, husband argued that his credit was "perfect" when the agreement was signed, but at the time he moved for a reduction in spousal support he had judgments against him totaling $612,889.61, unsecured debt of $1,971,523.28, multiple properties foreclosed upon totaling $989,173.62 and mortgages in the amount of $1,239,746.40, multiple credit cards, personal loans and lines of credit in arrears or revoked, and an income which barely covered the amount he was ordered to pay his wife.
Mary S. Williams (wife) argued that husband had financial difficulties throughout the course of the divorce litigation and his financial position had not materially changed. Wife also presented evidence showing deposits from December 1990 through October 1991 to various accounts owned or operated by husband totalling $825,380.42 ($128,009.86 of which was received by husband directly). In addition, wife argued that husband had failed to establish what his income was at the time the agreement was entered into and, therefore, he failed to meet his burden of proof of a change in financial condition. Wife testified that her financial needs were unchanged.
On appeal, we review the evidence in the light most favorable to the prevailing party below and grant to that party all inferences fairly deducible therefrom. Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988). "Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it." Martin v. Dep't of Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).
"The moving party in a petition for modification of support is required to prove 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); see also Furr v. Furr, 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992). The evidence shows that husband continued to have substantial monies available to him, and that he failed to produce any credible evidence as to what his income was upon signing the agreement. The trial judge found, upon conflicting evidence, that:
The Motion for a Reduction in Support filed by the [husband] is denied. Not only has there been no change in circumstances, the testimony taken prior to the execution of the Agreement represented the [husband's] financial condition to be in the same precarious condition.
"This finding has 'the weight of a jury verdict,' and we will not disturb it since it is not plainly wrong and is supported by evidence." Morris v. Morris, 3 Va. App. 303, 309, 349 S.E.2d 661, 664 (1986) (citation omitted).
II. CONTEMPT
The trial court found husband in contempt for failure to pay usual and customary expenses, as well as educational expenses of the minor child, pursuant to paragraphs 29 and 31 of the agreement. Additionally, husband was found in contempt for encumbering marital property by withdrawing funds from a credit line Deed of Trust in the sum of $5,750.00 in violation of paragraph 18 of the agreement. The parties presented conflicting evidence on all these issues. The trial judge resolved these conflicts in favor of the wife. Each contempt finding was supported by ample evidence in the record. No evidence indicates that the trial judge erred or abused his discretion. Accordingly, we find the husband's appeal of these issues without merit.
III. PROPERTY HELD BY THE COMMISSIONER
Lastly, the trial judge's refusal to release the property held by the Commissioner in Chancery in order to ensure compliance with the trial court's orders and decrees was not an abuse of discretion. The husband was found in contempt for violating the court's decree and was given an opportunity to purge himself of the contempt within forty-five days. This he failed to do. Deciding not to release the husband's personal property under these circumstances cannot be viewed as an abuse of discretion.
For the reasons stated, we conclude that the trial judge committed no error. Accordingly, we affirm.
Affirmed.