Opinion
Record No. 2180-92-2
September 7, 1993
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND JAMES M. LUMPKIN, JR., JUDGE.
Donald W. Lemons (Laurie L. Riddles; Durrette, Irvin, Lemons Fenderson, on briefs), for appellant.
Susan C. Armstrong (Mary Burkey Owens; Mays Valentine, on brief), for appellee.
Present: Chief Judge Moon, Judges Elder and Fitzpatrick.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
In this domestic case, both parties appeal from the trial court's award of a temporary increase in spousal support to wife. On appeal, Murray Hardison Wright (husband) argues that the trial court erred by: (1) denying his motion for a reduction in spousal support based on changed circumstances; (2) granting Nancy Lind Mercer Wright (wife) a temporary increase in spousal support where the evidence showed that her expenses had decreased after entry of the last support award; (3) making the increased support award retroactive to the date of wife's filing of her motion for modification; and (4) awarding wife attorney's fees and costs. On cross-appeal, wife contends that the trial court erred by (1) holding it was without jurisdiction to reconsider the prior order of support in this case; (2) imputing income to wife; and (3) prospectively decreasing wife's modified spousal support amount effective January 1, 1993. We conclude that the trial court erred in granting wife a temporary increase in spousal support and reverse the judgment on that basis. We find no reversible error as to the other arguments presented by the parties.
The parties are familiar with the facts of this case; therefore, we restate only those facts necessary to explain our decision. The parties, after twenty one years of marriage, were divorced by final decree on June 9, 1989. They settled all marital property issues and proceeded to litigate support and attorney's fees. In March 1991, the trial court heard evidence on the support issues, made certain findings as to the parties' income and expenses, and required husband to pay spousal support. The order required husband to pay wife $6,194 per month in spousal support until January 1, 1992, at which time the amount of support decreased to $5,073 per month. Additionally, the order reserved the trial court's jurisdiction to determine only the amount of an award of attorney's fees to wife.
The order further directed husband to pay wife $1,650 as child support for their minor child, Erin. In September, 1991, Erin began living with her father; however, husband continued support payments to wife until April 30, 1992 when Erin turned 18.Neither party appealed this original order.
On May 6, 1992, wife filed a motion to reconsider the prior spousal support award or to modify the previous award with an increase. Husband filed for a reduction in support. On June 19, 1992, the court heard the parties' support motions and the outstanding issue of the amount of attorney's fees and costs to be awarded to wife. The trial court, by decree entered October 1, 1992: (1) denied husband's motions; (2) granted wife a temporary increase in support and made that award retroactive to the date she filed her motion; (3) awarded her partial attorney's fees; and (4) retained the matter on the docket to allow wife to prove additional attorney's fees and costs. Both parties appeal from this October 1, 1992 order.
The trial court, relying on our decision in Weizenbaum v. Weizenbaum, 12 Va. App. 899, 901, 407 S.E.2d 37, 38 (1991), held that its prior spousal support order of October 11, 1991 was a "final order." Accordingly, the trial court granted husband's motion to dismiss wife's motion to reconsider the prior order. In so doing, the trial court noted that wife's motion could not be considered a "Bill of Review" because it was not filed within six months of entry of the order. See Code § 8.01-623. The trial court then heard each party's motion to modify the prior order based on changed circumstances pursuant to Code § 20-109.
MODIFICATION OF PRIOR ORDER BASED ON CHANGED CIRCUMSTANCES
We agree with the trial court's initial determination that the October 11, 1991, order was a "final order." That order clearly disposed of the whole subject litigated and gave all the relief contemplated with the limited exception of the trial court's reservation of jurisdiction to determine the appropriate amount of attorney's fees to be awarded in this cause. Accordingly, "[a]fter the expiration of 21 days from the date the decree was entered, the trial court lost jurisdiction of the case, except for the limited purposes of revising . . . support, Code § 20-108, and exercising its enforcement powers."Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987);see also Weizenbaum, 12 Va. App. at 901, 407 S.E.2d at 38. Therefore, the trial court did not err by dismissing wife's motion to reconsider and proceeding to determine the parties' motions on the basis of changed circumstances.
Initially, we find that sufficient evidence justified a hearing on each party's motion for modification based on a change in circumstances. Code § 20-109. Husband's evidence indicated that he suffered a substantial reduction in income from his law practice for the year 1992. Wife's evidence showed that she had a reduced return from her investment portfolio and that she continued to have certain expenses that had been previously offset by child support.
"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) (citing Yohay v. Ryan, 4 Va. App. 559, 566, 359 S.E.2d 320, 324 (1987)); see also Furr v. Furr, 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992). "[I]n fixing spousal support a trial court has broad discretion which should not be interfered with by an appellate court unless it is clear that some injustice has been done." Papuchis v. Papuchis, 2 Va. App. 130, 133, 341 S.E.2d 829, 831 (1986) (citation omitted). In addition, we view the "evidence and all reasonable inferences in the light most favorable to the prevailing party below. 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." Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988) (quoting Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986)).
Applying these principles to the case at bar, we conclude that the trial court did not err in denying husband's request for a reduction in support. While the evidence proved that husband suffered a substantial decrease in income for the year 1992, the trial court found that husband continued to have the ability to pay the current support obligation and wife continued to need such support. These findings are amply supported by the record. Accordingly, we affirm the trial court's judgment on this issue.
In addition, husband argues that, notwithstanding his motion for a reduction in support, the trial court erred in awarding wife a temporary increase in support based on changed circumstances. We agree. Viewing the evidence in the light most favorable to the wife as the prevailing party below, the evidence proved that wife suffered a reduction in investment income. However, as the trial court found, wife's total expenses had actually decreased since the entry of the prior support order. From this record, we conclude that the trial court's award of a temporary increase in support to wife was clearly erroneous. Accordingly, we reverse the trial court's judgment as to this issue. Our decision leaves the parties with the same support amount awarded as prior to their respective motions.
Notwithstanding such error, pursuant to the Supreme Court of Virginia's recent opinion in Reid v. Reid, 245 Va. 409, 415, 429 S.E.2d 208, 211 (1993), husband is not entitled to restitution for the monies already paid for the temporary increase in support erroneously ordered by the trial court.
Because we conclude that the trial court erred in awarding wife an increase in support based on the evidence presented, we do not reach husband's additional argument that the trial court erred in making the increase retroactive to the date of filing of wife's motion. Similarly, we do not reach wife's argument on cross-appeal that the trial court erred in automatically reducing the increased spousal support back to the original amount as of January 1, 1993.
ATTORNEY'S FEES
Husband argues that the trial court abused its discretion in awarding wife partial attorney's fees and in retaining the matter on the docket for future adjudication of attorney's fees. We disagree. "It is well established that an award of attorney's fees [which arises out of legal representation] in a divorce proceeding is 'a matter submitted to the trial court's sound discretion and is reviewable on appeal only for an abuse of discretion.'" Alphin v. Alphin, ___ Va. App. ___, ___, 424 S.E.2d 572, 578 (1992) (quoting Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987)). Wife presented evidence as to the extent of attorney's fees incurred for representation in the prior support litigation. The trial court accepted this evidence and wife's estimates as to the percentage of time associated with the settled property issues versus the time associated with the litigation of support issues. From this evidence, the trial court fashioned a reasonable award of attorney's fees.
"We have said that the key to a proper award of counsel fees . . . [is] reasonableness under all of the circumstances revealed by the record." Poliquin v. Poliquin, 12 Va. App. 676, 682, 406 S.E.2d 401, 405 (1991) (quoting Westbrook v. Westbrook, 5 Va. App. 446, 458, 364 S.E.2d 523, 530 (1988)). Upon consideration of the entire record before us, we conclude that the trial court did not err in awarding wife a portion of the legal expenses incurred. Therefore, we affirm the trial court's judgment on this issue.
IMPUTATION OF INCOME TO WIFE
On cross-appeal, wife argues that the trial court erred in imputing income to her for the purpose of calculating spousal support based on her prior employment as a nurse. We disagree. Code § 20-107 authorizes a trial court to consider each spouse's earning capacity. By letter opinion which was incorporated into the October 11, 1991 order, the trial court found that wife was capable of gainful employment and that "she has unreasonably failed or refused to seek employment since the divorce." As previously noted, that order was never appealed by the parties.
"The judgment of the trial court concerning the extent to which the wife's earning capacity should affect [a] spousal . . . support award will not be set aside unless it appears from the evidence that such judgment is plainly wrong or without evidence to support it." Kaufman v. Kaufman, 7 Va. App. 488, 494, 375 S.E.2d 374, 377 (1988) (citation omitted). Notwithstanding the prior order establishing the law of the case, sufficient evidence was presented to the trial court from which the court could properly conclude that wife was capable of gainful employment. Accordingly, imputation of income was within the court's discretion. See Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990). Therefore, we affirm the trial court's judgment on this issue.
CONCLUSION
For the reasons set forth above, we affirm the trial court's judgment as to the: (1) dismissal of wife's motion to reconsider the October 11, 1991 order; (2) denial of husband's request for a reduction in support based on changed circumstances; (3) award of attorney's fees; and (4) imputation of income to wife. We reverse the trial court's judgment as to the temporary increase in spousal support to wife.
Affirmed in part and reversed in part.