Featherstone v. Brooks, 780118

• Decision Date: 05 October 1979
• Docket Number: No. 780118,780118
• Citation: 220 Va. 443,258 S.E.2d 513
• Parties: Phyllis FEATHERSTONE v. Henry S. BROOKS. Record
• Court: Virginia Supreme Court

Page 513

258 S.E.2d 513

220 Va. 443

Phyllis FEATHERSTONE v. Henry S. BROOKS.

Record No. 780118.

Supreme Court of Virginia.

Oct. 5, 1979.

G. H. Gromel, Jr., Richmond (Christopher J. Habenicht, Hunton & Williams, Richmond, on briefs), for appellant.

Ilona Ely Freedman, Alexandria, for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

HARMAN, Justice.

The issue on this appeal is whether the Chancellor erred in altering and revising a former decree by ordering Phyllis Featherstone (Featherstone), formerly Phyllis Featherstone Brooks, to pay the sum of $100 monthly to her former husband, Henry S. Brooks (Brooks), for maintenance and support of their three minor children, now ages 13, 11 and 9, who are in Brooks' custody.

On June 5, 1975, the trial court awarded Brooks a divorce from Featherstone on the ground of desertion. This decree confirmed and incorporated a property settlement agreement between the parties, which provided, in pertinent part:

"2. The parties agree that the (h)usband shall have sole and complete custody of their three (3) children born of this marriage, with reasonable visitation rights reserved to the wife. During the periods of time that the children are with the wife she is to make sure that they continue to receive their religious training and she will be responsible for their support and maintenance."

In July, 1977, Brooks, pursuant to Code § 20-108, petitioned the trial court to amend and revise the final divorce decree so as to require Featherstone to regularly contribute to the maintenance and support of the minor children. After an Ore tenus hearing on Brooks' allegation that there had been a material change in the financial circumstances of the parties, the trial court found such a change and decreed that Featherstone should pay $100 monthly to Brooks for support and maintenance of the minor children.

Having prevailed before the Chancellor, Brooks is entitled to have the evidence viewed here in the light most favorable to him. Thus viewed, the evidence shows that Brooks' monthly expenses exceeded his monthly income by approximately $700, and that certain itemized expenses had increased by a monthly total of almost $600 since entry of the 1975 decree. While his annual salary had increased from $29,800 in 1975 to $36,700 on October 1, 1977, Brooks testified that an increase in his income tax liability and the other expenses of his family far exceeded his increase in income during this period. His net monthly pay in 1975 was approximately $1850 on an annual salary of $29,800. Prior to October 1, 1977, Brooks' net monthly pay was $2114.33 based on an annual salary of $34,473, an increase of less than $300 since 1975. He related that the cost of living in the Washington metropolitan area had increased by 22.2% During the preceding two years. Brooks testified that he had almost exhausted his savings and other assets in order to pay the increased expense of operating his household.

More specifically, Brooks' testimony shows his utility and heating costs had increased by $72 monthly, an increase of 120%, and that his real and personal property taxes had increased approximately $50 monthly, an increase of more than 35%. Brooks further related that since entry of the divorce decree the two older children were required to undergo orthodontic treatment at a monthly cost of $100 and that the youngest child had developed health problems requiring a weekly visit to a physician, thus increasing the family's total medical expenses. He also testified that he was expending $40 monthly for a day camp for the children, another new expense. The two older children had recently begun taking music lessons at a cost of $50 monthly. Brooks also stated that it had recently become necessary for him to trade his 10 year-old car for a new one, resulting in an additional monthly payment of $124.96. Brooks' testimony shows that he continues to make a $597.91 monthly mortgage payment on his home, the same dwelling his family occupied prior to the divorce. In addition to the car payment of $124.96, he was obligated to make a monthly payment of $114.18 on an indebtedness of $5500 to the credit union where he is employed. Prior to the time the parties separated, a housekeeper was employed at a cost of $85 per week or $368 per month. On the date of the hearing he employed a housekeeper at a monthly expense of $508, an increase of 38%.

On the date Brooks testified, his outstanding accounts payable totaled $1590. His bank balances were slightly in excess of $2000 and he owned stocks which he valued at $3000.

Brooks testified that after Featherstone deserted him and prior to entry of the divorce decree, she kept the children every second weekend and for two weeks during the summer. During those periods she provided for their needs and frequently gave them gifts and made or bought clothing for them. Brooks further testified that Featherstone after entry of the final decree, seldom saw the children and ceased making gifts to them.

Featherstone testified that her 1975 annual salary was approximately $9500 prior to her move to New York. After moving to New York her annual salary had increased to $13,825 annually on the date of the hearing, an increase of more than 45%. She presented an exhibit showing that her net monthly income was $742.30 and that her monthly expenses exceeded her monthly income by approximately $10. In reviewing this exhibit we note that there is a $75 monthly deduction from her salary for "Thrift". Her testimony discloses that this deduction represents payments to a savings plan for her benefit, so her net monthly income was at least $817.30. In addition, Featherstone had received a refund of federal income taxes withheld during each of the three preceding years. The refund for the 1976 tax year was $372.

Other monthly expenses...