Frederick A. Haycox, III v. Sue Ann Carey Haycox ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Bray and Senior Judge Hodges
FREDERICK ADDENBROOK HAYCOX, III
v. Record No. 1709-94-1 MEMORANDUM OPINION *
PER CURIAM
SUE ANN CAREY HAYCOX MAY 2, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Jerome B. Friedman, Judge
(Moody E. Stallings, Jr.; Kevin E. Martin-Gayle;
Stallings & Richardson, on brief), for appellant.
(Debra C. Albiston; Jerrold G. Weinberg; Weinberg &
Stein, on brief), for appellee.
Frederick Addenbrook Haycox, III (husband) appeals the
decision of the circuit court denying his request for a reduction
in the monthly spousal support he pays to Sue Ann Carey Haycox
(wife). Husband's issues can be summarized as follows: (1)
whether the trial court erred in applying Code § 20-107.1 to the
facts of this case; and (2) whether the trial court erred in
denying husband's request to reduce spousal support payments, in
light of wife's increased earning capacity. Upon reviewing the
record and briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the decision of
the trial court. Rule 5A:27.
Code § 20-109 provides that "[u]pon petition of either party
the court may increase, decrease or terminate spousal support and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
maintenance that may hereafter accrue . . . as the circumstances
may make proper." "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). "[T]he 'circumstances'
which make 'proper' [a] . . . reduction . . . of spousal support
under Code § 20-109 are financial and economic ones." Hollowell
v. Hollowell, 6 Va. App. 417, 419, 369 S.E.2d 451, 452-53 (1988).
Husband sought to reduce wife's spousal support on the bases
of wife's increased income and her increased ability to earn
income through wife's newly-acquired real estate licenses. The
trial court found, however, that "there is simply not sufficient
evidence to reduce her spousal support." The evidence
demonstrated that wife's overall financial situation had not
changed substantially since the time the original support order
had been entered. Some income sources had stopped while others
had begun. In addition, while wife testified she was working
full time as a real estate agent, she had gross income of $1,100
from her employment in 1993 and had earned $438 in 1994 prior to
the hearing.
On appeal, "[w]e will not disturb the trial court's decision
where it is based on an ore tenus hearing, unless it is 'plainly
wrong or without evidence in the record to support it.'" Furr v.
Furr, 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992) (citation
2
omitted). We cannot say the trial court's denial of husband's
petition was plainly wrong or without supporting evidence.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
3