Lee v. Lee, 1514-85

• Citation: 352 S.E.2d 534,3 Va.App. 631
• Decision Date: 03 February 1987
• Docket Number: No. 1514-85,1514-85
• Parties: Eunice Montgomery LEE v. Robert Edward LEE. Record
• Court: Virginia Court of Appeals

Page 534

352 S.E.2d 534

3 Va.App. 631

Eunice Montgomery LEE v. Robert Edward LEE.

Record No. 1514-85.

Court of Appeals of Virginia.

Feb. 3, 1987.

Michael McHale Collins (J. Gregory Mooney; Collins, Crackel & Mooney, Covington, on brief), for appellant.

Edward K. Stein (Dabney L. Pasco; Alderson & Stein; Kostel, Watson, Snyder & Pasco, Covington, on brief), for appellee.

Present: KOONTZ, C.J., and MOON and HODGES, JJ.

HODGES, Judge.

On August 29, 1984, Robert Edward Lee filed a bill of complaint praying for a divorce from his wife, Eunice Montgomery Lee, on the grounds of cruelty and constructive desertion. In addition to other relief requested, Mr. Lee sought custody of the youngest of the parties' two infant children and filed notice the next day that he would seek custody of and support for the infant pendente lite. Eunice Lee filed her answer and cross-bill on September 6, 1984. On October 5, 1984, a copy of a letter agreement, which had been signed by the parties and their respective attorneys, was filed in the clerk's office. The agreement divided a portion of the parties' property and set forth Mr. Lee's agreement to pay $250 a month for the support of the two infant children. Mr. Lee's request for custody of the infant son was denied by decree on October 17, 1984.

The court entered a final decree of divorce on October 4, 1985. The parties' agreement concerning child support was neither affirmed, ratified nor incorporated into the final decree nor any other decree. On the day the final decree was entered, the court heard evidence and argument on Mr. Lee's motion to reduce his child support payments. Subsequently, on November 1, 1985, the court entered a decree which granted the husband's request and reduced the total monthly support from $250 a month to $125 a month. The children's mother, Eunice Lee, objected and filed this appeal.

Mrs. Lee contends that the modification was error since the evidence was insufficient to justify a reduction in the amount of child support. ¹ We find that the hearing held by the court was in effect an initial child support hearing, and we hold that the court erred in considering only factors that would be relevant to a motion to reduce support due to a change in circumstances.

The statement of facts filed by the parties pursuant to Rule 5A:8(c) indicates that the only testimony proffered during the support hearing concerned the reduction of the husband's monthly income since his retirement from employment with Hercules, Inc. due to disability. Mr. Lee testified that before retirement his monthly income from Hercules was approximately $1,000. After he retired he received only $400 a month from Hercules. In addition, he received a government disability check in the amount of $40 per month for ten months of the year, and $215 per month from the National Guard. It is unclear whether he received these amounts prior to his retirement. He also testified that he had a savings account of about $48,000 into which he reinvested all interest earned on the account. The court entered a decree reducing the husband's total monthly child support obligation based upon this evidence.

After the hearing, the court wrote the parties on October 18, 1985, and said: "I have reviewed the evidence and arguments of counsel in this matter and am of the opinion that the amount of child support being paid should be reduced from $250.00 to $125.00 per month, effective October 1985." The decree entered November 1, 1985, ordered that "the complainant's support obligation ... be reduced from $250.00 per month to $125.00 per month...."

Although the parties apparently viewed the hearing as one for modification of their prior child support agreement, the hearing held by the court was in effect an initial child support hearing. Prior to the hearing no decrees setting child support had been entered and the record is devoid of any evidence concerning the past or present welfare and needs of the children. The court only considered the change in the father's income and did not consider the needs of the children. In so doing, the court erred by failing to consider the required factors necessary for a judicial determination of child support. Code § 20-107.2.

In Virginia, a court has authority to provide for the maintenance and...