S. Grey Folkes v. Pamela A. Folkes ( 2000 )


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  •                     COURT OF APPEALS OF VIRGINIA
    Present:   Judges Elder, Bumgardner and Humphreys
    S. GREY FOLKES
    MEMORANDUM OPINION *
    v.   Record No. 0726-00-1                       PER CURIAM
    SEPTEMBER 19, 2000
    PAMELA A. FOLKES
    FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
    S. Bernard Goodwyn, Judge
    (Gregory S. Larsen; Roy, Larsen, Romm &
    Lascara, on brief), for appellant.
    (Henry M. Schwan, on brief), for appellee.
    S. Grey Folkes (husband) appeals from an order entered by the
    circuit court on February 23, 2000.   On appeal, husband contends
    the trial court erred by (1) making its modified award of spousal
    support retroactive to the date of filing of the petition for
    modification; and (2) refusing to find that husband had a change
    in income sufficient to justify a material change in
    circumstances.    Pamela A. Folkes (wife) seeks an award of
    appellate attorney's fees.   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.
    See Rule 5A:27.
    * Pursuant to Code § 17.1-413, recodifying Code
    § 17-116.010, this opinion is not designated for publication.
    Procedural Background
    In a final decree of divorce entered on May 22, 1992, the
    trial court ordered husband to pay wife monthly spousal support in
    the amount of $4,500.   In 1993, husband filed a petition to
    decrease the amount of spousal support, and wife filed a petition
    seeking an increase in spousal support.   By order entered June 24,
    1994, the trial court denied both petitions and ordered husband to
    continue paying $4,500 per month for spousal support.   In its
    order, the trial court decreed that "all further matters
    pertaining to spousal support are hereby transferred" to the
    juvenile and domestic relations district court (juvenile court).
    On January 12, 1998, husband filed a petition with the
    juvenile court to decrease his spousal support obligation.
    Shortly thereafter, wife petitioned the juvenile court to increase
    husband's support obligation.
    On May 27, 1998, the juvenile court granted husband's
    petition and reduced husband's monthly spousal support obligation
    to $2,500 beginning May 1, 1998.   The juvenile court denied wife's
    petition for increased support and for attorney's fees.
    On May 29, 1998, wife noted her appeal to the circuit
    court.
    The parties presented evidence at a September 8, 1999
    hearing.   On September 9, 1999, the trial court ruled that "no
    material change in circumstances has occurred which would
    warrant an increase in the spousal award [to the wife]."       The
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    trial court also found that husband "has not shown a change in
    his income sufficient to prove a material change in
    circumstances which would warrant" a decrease in spousal
    support; however, the circuit court found that wife was
    voluntarily underemployed.   As a result, the circuit court
    reduced husband's monthly support obligation to $3,250
    "effective February 1, 1998, and that's based upon the
    understanding that the petition was filed in January of 1998."
    By letter dated September 24, 1999, husband's attorney
    asked the trial court to reconsider the retroactive application
    of its award and "request[ed] that the Decree be effective
    October 1, 1999."   By letter to counsel dated November 22, 1999,
    the trial court indicated that, "[u]pon review of the authority
    provided to the Court, the effective date for the modification
    of spousal support granted by this Court will be October 1,
    1999," the month following the trial court's ruling.   The trial
    court directed husband's attorney to prepare and circulate an
    order reflecting that ruling.    By letter dated November 29,
    1999, wife's attorney objected to the trial court's new ruling
    and asked that the trial court reconsider the matter before
    "entering any Decree."   By letter to counsel dated December 13,
    1999, the trial court declared its intention to "reconsider the
    ruling in its letter of November 22, 1999" and to render a
    ruling on the matter at the hearing "already on the Court's
    docket for December 15, 1999."
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    On February 23, 2000, the trial court entered a final order
    memorializing its decision.   In it, the trial court denied
    wife's request for increased spousal support and granted
    husband's request for a reduction in spousal support.   The trial
    court ruled that husband shall pay monthly spousal support of
    $3,250 per month "beginning March 1, 1998."    A transcript of the
    December 1999 hearing was not made a part of the record.
    Retroactive Application of Circuit Court Order
    Although the trial court conveyed concurrent jurisdiction
    to the juvenile court in 1994 pursuant to Code § 20-9(c), it
    retained "continuing jurisdiction to consider those issues,
    should it exercise its discretion to do so."    Crabtree v.
    Crabtree, 
    17 Va. App. 81
    , 84, 
    435 S.E.2d 883
    , 886 (1993).
    Despite the absence in the Code of a statute expressly
    allowing a trial court to modify and award spousal support
    retroactively to the filing of the petition in juvenile court,
    the legislature "did not ignore the possibility of altering
    spousal support awards retroactively."    Reid v. Reid, 
    245 Va. 409
    , 412, 
    429 S.E.2d 208
    , 210 (1993).    By enacting Code
    § 20-112, the legislature "specifically addressed" and provided
    for "retroactive modification" of spousal support orders "when
    'proceedings are reopened to increase, decrease or terminate
    maintenance and support for a spouse or for a child,' but only
    'with respect to any period during which there is a pending
    petition for modification, but only from the date that notice of
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    such petition has been given to the responding party.'"    Reid,
    245 Va. at 412, 429 S.E.2d at 210 (quoting Code § 20-112).
    "Whether to make modification of a support order effective
    during a period when a petition is pending is entirely within
    the discretion of the trial court."   O'Brien v. Rose, 14 Va.
    App. 960, 965, 
    420 S.E.2d 246
    , 249 (1992).
    Code § 16.1-296(A) allows a party to appeal "any final
    order or judgment of the juvenile court affecting the rights or
    interests of any person coming within its jurisdiction."
    "[A]n appeal to the circuit court from a
    court not of record under Code § 16.1-136
    annuls the judgment of the inferior tribunal
    as completely as if there had been no
    previous trial. . . . [S]uch a trial de
    novo in the circuit court grants to a
    litigant every advantage which would have
    been his had the case been tried originally
    in such court."
    Box v. Talley, 
    1 Va. App. 289
    , 292, 
    338 S.E.2d 349
    , 351 (1986)
    (quoting Walker v. Department of Public Welfare, 
    223 Va. 557
    ,
    563, 
    290 S.E.2d 887
    , 890 (1982)).
    "Orders of the district court requiring support of a spouse
    remain in full force and effect until reversed or modified by
    the court to which an appeal has been perfected, or until the
    entry of a decree in a suit for divorce instituted in a circuit
    court, in which decree provision is made for spousal support."
    Martin v. Bales, 
    7 Va. App. 141
    , 145-46, 
    371 S.E.2d 823
    , 826
    (1988) (holding that juvenile court's award of spousal support
    remained in force after circuit court heard husband's appeal but
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    failed in its divorce decree to address spousal support)
    (emphasis added).
    Husband filed his petition for modification in the district
    court in January 1998.    After wife appealed the juvenile court's
    September 9, 1999 decision modifying the circuit court's
    original 1993 award of spousal support, the circuit court
    conducted a trial de novo.     Unlike the situation in Bales, the
    circuit court specifically addressed spousal support in its
    decree; therefore, its ruling annulled the decision by the
    juvenile court.   All that remained was for the trial court to
    exercise its discretion and determine what date, within the
    range set forth by Code § 20-112, to require husband to make his
    first modified support payment.    The record established that
    husband filed his petition for modification in the juvenile
    court on January 12, 1998 and wife received personal service on
    February 10, 1998; therefore, the March 1, 1998 retroactive date
    for the award to take effect was within the "period during which
    there [wa]s a pending petition for modification."     Code
    § 20-112.   Accordingly, we find no error in the trial court's
    ruling on this issue.
    Modification of Spousal Support
    A party seeking modification of spousal support pursuant to
    Code § 20-109, bears the burden of proving "both a material
    change in circumstances and that this change warrants a
    modification of support."     Schoenwetter v. Schoenwetter, 8 Va.
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    App. 601, 605, 
    383 S.E.2d 28
    , 30 (1989).    "We 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 to
    support it.'"   Furr v. Furr, 
    13 Va. App. 479
    , 481, 
    413 S.E.2d 72
    , 73 (1992) (citation omitted).
    At the ore tenus hearing, husband testified his 1993 gross
    income was $685,969 and his 1998 gross income was approximately
    $686,000.   At the conclusion of the hearing, the trial court
    found that "husband has not shown a change in his income
    sufficient to prove a material change in circumstances, which
    warrant a modification of support."     In so ruling, the trial
    court explained that "husband's income in 1998 appears to have
    been about the same as it was in 1993, the last full year before
    the Court's previous ruling."   This decision is supported by
    evidence and is not plainly wrong.
    Wife's Request for Costs and Attorney's Fees Defending Appeal
    Based on the circumstances of this case, we deny wife's
    request for attorney's fees and costs.     See Gayler v. Gayler, 
    20 Va. App. 83
    , 87, 
    455 S.E.2d 278
    , 280 (1995) (denying request for
    appellate attorney's fees where husband had reasonable grounds
    for appeal).
    Accordingly, the decision of the circuit court is summarily
    affirmed, and wife's request for fees and costs is denied.
    Affirmed.
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