Mary Ryder Brett v. Lawrence G. Brett ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
MARY RYDER BRETT
v. Record No. 1511-95-4 MEMORANDUM OPINION *
PER CURIAM
LAWRENCE G. BRETT JUNE 4, 1996
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Thomas S. Kenny, Judge
(Mary Ryder Brett, pro se, on brief).
No brief for appellee.
Mary R. Brett (mother) appeals the decision of the circuit
court granting the motion of Lawrence G. Brett (father) to reduce
spousal and child support and deciding other issues. Mother
raises the following issues on appeal:
(1) whether the court erred in granting father's
motion for reconsideration more than twenty-
one days after entry of its March 3, 1995
order;
(2) whether the court erred in denying mother's
motion to dismiss father's motion to reduce
support where father's motion failed to
allege a material change in circumstances
justifying a reduction in support;
(3) whether the court erred in denying mother's
motion to dismiss father's motion to reduce
support when father was over $66,000 in
arrearages in spousal and child support;
(4) whether the court erred in denying mother's
motion to reduce arrearages to judgment
pursuant to terms of final divorce decree;
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(5) whether the court erred in denying mother's
motion to dismiss when father failed to
appear to testify for nine months;
(6) whether the court erred in refusing to enter
as admitted mother's Request for Admissions
when father had not responded within twenty-
one days, as required by Rule 4:11, and in
failing to dismiss father's motion to reduce
support;
(7) whether the court erred in denying mother's
motion to strike at the June 7, 1995 trial;
(8) whether the court erred in imputing only
$30,000 in income to father;
(9) whether the court erred in retroactively
modifying child and spousal support beginning
August 1, 1994 and prospectively modifying
child and spousal support beginning August 1,
1995;
(10) whether the court erred in granting father
retroactive relief based upon the filing of
the motion despite father's failure to have
the motion heard until June 1995;
(11) whether the court erred in finding Antonelli
v. Antonelli, 242 Va. 152, 409 S.E.2d 117
(1991) was not applicable;
(12) whether the court erred in failing to state
that it considered all the statutory factors
before reducing child support; and
(13) whether the court erred in failing to state
that it considered all the statutory factors
before reducing spousal support.
Upon reviewing the record and opening brief, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the decision of the trial court. Rule 5A:27.
Motion to Reconsider
In 1993, both parties filed motions in the trial court to
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modify spousal support. By order dated March 3, 1995, the trial
judge memorialized his ruling following a June 25, 1993 hearing
"[F]inding no change in circumstances warranting relief by either
party," the trial judge denied the motion of both parties." 1 By
order dated April 6, 1995, the court granted leave to the father
to move for reconsideration of the March 3, 1995 order denying
his 1993 motion for a reduction of support. Mother contends that
the trial court erred by entering an order granting
reconsideration of the March 3 order when it became final, under
Rule 1:1, twenty-one days after its entry, which was March 24,
1995.
The record does not contain either a motion to reconsider or
a ruling by the trial judge on a motion to reconsider.
Therefore, whether or not the trial judge had jurisdiction to
grant leave to the father to file a motion to reconsider, no
further action occurred. Thus, the appeal raises no justiciable
controversy that resulted from entry of the order. Accordingly,
the issue is moot. See Aetna Life Ins. Co. v. Haworth, 300 U.S.
227, 240-41 (1937); Historic Landmarks Comm. v. Louisa Co., 217
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The trial court struck and, thereby, deleted from the
original draft order the phrase, "the order of support entered by
the Honorable William Plummer October 31, 1991 shall remain in
effect." The record shows that at the conclusion of a 1991
hearing on a motion by father to reduce child support, Judge
Plummer ordered father to pay $1,000 per month in child support
and $200 per month in spousal support. No written order
memorializing Judge Plummer's ruling was ever entered. On April
2, 1993, mother filed a motion to increase support noting that
Judge Plummer in 1991 set support at $1,200.
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Va. 468, 476, 230 S.E.2d 449, 454 (1976).
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Motion to Dismiss
Mother raises several challenges to the trial court's denial
of her motion to dismiss father's 1994 motion to reduce support.
Mother contends father failed to allege a material change in
circumstances justifying a reduction in support. Father's motion
alleged that, following a job loss, his income was reduced to
$185 per week in unemployment benefits. Father also alleged that
mother's income exceeded his, alleviating the need for spousal
support. Those were sufficient allegations of a change in
circumstances to withstand a motion to dismiss.
Mother argues that laches should have barred the court from
hearing father's motion because father never intended to appear
to testify in support of his motion. "[L]aches has been defined
as an omission to assert a right for an unreasonable time and
unexplained length of time, under circumstances prejudicial to
the adverse party," Finkel Outdoor Products, Inc. v. Bell, 205
Va. 927, 933, 140 S.E.2d 695, 699 (1965), or as "'such neglect or
omission to do what one should do as warrants the presumption
that he has abandoned his claim, and declines to assert his
right.'" Pittman v. Pittman, 208 Va. 476, 479, 158 S.E.2d 746,
749 (1968) (citation omitted). Whether to apply laches to an
equitable claim is a matter left to the discretion of the trial
court. In light of father's residence in Arizona, his loss of
employment, and his subsequent hospitalization, the trial court
could reject mother's contentions that father never intended to
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appear. Accordingly, we cannot say the trial court abused its
discretion in denying mother's motion to dismiss.
Request to Reduce Arrearages to Judgment
On March 30, 1995, mother filed a show cause petition
seeking to hold father in contempt for failing to pay $2,400 a
month in spousal and child support since July 1991. In her
supporting affidavit, mother asserted that the last order of
child and spousal support entered by the court was the September
18, 1990 final decree of divorce, which set child and spousal
support at $1,200 each. Mother's affidavit noted that father
complied with the order until July 1991, then paid $1,200 per
month for the period from July 1991 to July 1994, $185 per month
from August 1994 through November 1994, and $50 per month for
December 1994 until March 1995. The trial judge granted mother's
rule to show cause and a hearing was held on April 6, 1995. The
trial judge then denied mother's request to enter judgment on the
alleged arrearages.
The trial court did not err in denying mother's request for
support arrearages. The record demonstrates that, after the
entry of the final decree in 1990, both parties filed motions to
adjust support. These motions were heard by Judge Plummer on
October 31, 1991. The transcript of that hearing indicates that
the trial judge reduced the amount of spousal support to $200 and
the amount of child support to $1,000. No written order
incorporating the trial judge's ruling was ever entered.
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After Judge Plummer set $1,200 as the total amount of
support, the parties conducted themselves according to that
order. Mother's affidavit in support of her show cause petition
acknowledged that father paid $1,200 per month for the period
July 1991 through July 1994. Thus, mother's own evidence
indicates that father was paying $1,200 in 1993 when Judge Kenney
found that circumstances did not warrant changing the current
amount of support. While Judge Kenney's order did not indicate
the level of either spousal or child support which father was
then obligated to pay, both parties' motions indicated that the
amount of spousal support was $200. Mother's motion also stated
that the amount of child support was $1,000. Therefore, we
cannot say that the trial judge erred in denying mother's request
for arrearages attributable to the period prior to July 1994.
Moreover, under Code § 20-108, support "may be modified with
respect to any period during which there is a pending petition
for modification, but only from the date that notice of such
petition has been given to the responding party." "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). By motion filed July 28, 1994, father
sought to decrease child support and terminate spousal support
based upon his loss of employment on June 15, 1994. We cannot
say the trial court abused its discretion by modifying the amount
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of spousal and child support effective upon the filing of
father's 1994 petition to reduce support. Therefore, the trial
judge's denial of mother's requests for arrearages attributable
to the period after July 1994 was also not clearly erroneous.
Request for Admissions
The trial court is granted discretionary authority over the
conduct of discovery. Helen W. v. Fairfax County Dep't of Human
Dev., 12 Va. App. 877, 887, 407 S.E.2d 25, 31 (1991). Mother has
not shown that the court abused its discretion in declining to
accept as admitted 205 items which composed mother's Request for
Admissions. The mother's allegation that father's answers were
one day late does not prove the trial judge abused his
discretion.
Modification of Child Support
We review the evidence in the light most favorable to
father, the party prevailing below. "The judgment of a trial
court sitting in equity, when based upon an ore tenus hearing,
will not be disturbed on appeal unless plainly wrong or without
evidence to support it." Box v. Talley, 1 Va. App. 289, 293, 338
S.E.2d 349, 351 (1986). "Where a party has demonstrated a
material change in circumstances, the trial court must determine
whether that change justifies a modification in the support award
by considering 'the present circumstances of both parties and the
benefit of the children.'" Watkinson v. Henley, 13 Va. App. 151,
156, 409 S.E.2d 470, 473 (1991) (citation omitted).
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Father testified that his income was substantially reduced
when he lost his job in June 1994, and that he did not
voluntarily leave his position in Washington or his position with
an Arizona law firm. While the record indicates father lost his
Washington job due to poor performance, his subsequent employment
with the Arizona firm was at a higher salary. Father's evidence,
which the trial court found to be credible, indicated that father
made good faith efforts to find work to supplement his
unemployment benefits and sought to ameliorate his lost income by
obtaining a real estate license. The trial court noted that
father filed his motion to reduce support promptly upon losing
his position in June 1994. The record demonstrates that the
trial court considered the circumstances of the parties and the
expenses for the children before reducing the amount of child
support to $300 a month for the period from August 1, 1994
through August 1, 1995. This determination is supported by
credible evidence.
The trial court imputed annual income of $30,000 to father.
A trial court's decision to impute income will not be reversed
if it is supported by the evidence. O'Brien v. Rose, 14 Va. App.
960, 963-64, 420 S.E.2d 246, 248 (1992) (citations omitted).
Mother relies upon Antonelli v. Antonelli, 242 Va. 152, 409
S.E.2d 117 (1991), to argue that the trial court erred in not
imputing more income to father. In Antonelli, the father left a
salaried management position with one stock brokerage firm to
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take a commissioned sales position with a different firm several
months before a precipitous drop in the stock market. Id. at
153, 409 S.E.2d at 118. The Supreme Court noted that "the father
gambled with the children's ability to receive his financial
support, and lost." Id. at 156, 409 S.E.2d at 119. In contrast,
here the trial court determined that father did not voluntarily
take a risk which placed the children's payments in jeopardy.
Antonelli does not preclude a payor spouse from ever receiving a
reduction in support obligations when there have been
unforeseeable changes in employment and corresponding reductions
in salary.
Based upon the actual and imputed income, both parties had
$30,000 in annual income. The trial court used these figures to
set the amount of child support effective August 1, 1995,
pursuant to the statutory guidelines. The guidelines are
presumed to be correct. Code § 20-108.2(A). Therefore, as
credible evidence supports the court's findings and the amount of
child support was set pursuant to statutory guidelines, we find
no error in the trial court's decision.
Modification of Spousal Support
Under Code § 20-109, the court is authorized to "increase,
decrease, or terminate spousal support and maintenance . . . as
the circumstances may make proper." Mother contends that the
trial court erred in failing to state that it considered the
statutory factors, presumably the factors set out in Code
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§ 20-107.1, prior to reducing the amount of spousal support. The
court is required to consider the statutory factors when the
amount of spousal support is initially determined. Subsequently,
a party seeking to modify support must 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).
The trial court found mother's current income to be $30,000.
Mother alleged that she had $500 in monthly student loan
payments coming due and a personal injury affecting her vision
for which the prognosis was unknown. Mother did not demonstrate
that her vision currently affected her earning ability. The
court found that the circumstances of the parties warranted a
reduction in spousal support to $100 for the period beginning
August 1, 1994, and the discontinuance of spousal support as of
August 1, 1995. Its findings are supported by credible evidence.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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