Mcnamee v. Mcnamee
| Decision Date | 01 February 2011 |
| Docket Number | Record No. 1070-10-2 |
| Parties | SCOTT THOMAS McNAMEE v. SHARON JONES McNAMEE |
| Court | Virginia Court of Appeals |
Present: Judges Humphreys, Kelsey and Haley Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Shannon S. Otto (Locke Partin DeBoer & Quinn, on briefs), for appellant.
F. Byron Parker, Jr. (Parker & McMakin Law Group, on brief), for appellee.
Scott Thomas McNamee ("husband") appeals a ruling of the Circuit Court of Henrico County ("the circuit court") denying his motion to amend spousal support to Sharon Jones McNamee ("wife"). On appeal, husband argues the trial court erred in 1) relying on Code § 20-109(A) to evaluate husband's motion to amend support; 2) denying husband's motion to amend support; 3) concluding that husband owed spousal support arrearages to wife; 4) calculating the parties' gross incomes for purposes of determining child support and, as a result, erred in calculating child support; and 5) taking evidence and ruling on the issue of husband's alleged failure to pay the unreimbursed medical expenses for the parties' minor child. For the following reasons, we affirm in part, reverse and remand in part, and reverse and vacate in part.
Spousal support decisions are within the broad discretion of the trial court, and this Court's "review is limited to determining whether the trial court clearly abused its discretion." Miller v. Cox, 44 Va. App. 674, 679, 607 S.E.2d 126, 128 (2005) (citing Gamble v. Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635, 644 (1992)). "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 in the record to support it.'" Furr v. Furr, 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992) (quoting Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989)). Finally, it is the trial court's duty, when sitting as the finder of fact, to resolve conflicts in the evidence. City of Bedford v. Zimmerman, 262 Va. 81, 86, 547 S.E.2d 211, 214 (2001).
Husband's contentions that the trial court erred in relying on Code § 20-109(A) to evaluate husband's motion to amend support and in calculating the parties' gross incomes for purposes of determining child support and, as a result, erred in calculating child support, were not timely objected to with the grounds stated at a point in time when the circuit court could properly act upon husband's contentions.1 Scialdone v. Commonwealth, 279 Va. 422, 437, 689 S.E.2d 716, 724 (2010) . Thus, pursuant to Rule 5A:18, we do not consider the merits of eitherargument on appeal. Lee v. Lee. 12 Va. App. 512, 515-17, 404 S.E.2d 736, 738-39 (1991) (en banc).
Although Rule 5A:18 allows exceptions for good cause or to meet the ends of justice, appellant does not argue that we should invoke these exceptions. See Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997). We will not consider such an argument sua sponte. Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).
Husband contends that the circuit court erred in denying his motion to amend spousal support because the evidence established material changes in circumstances not contemplated by the parties at the time of the initial award and these changes justified modification of the support. Because we hold that husband did not timely object to the circuit court's application of the standard provided in Code § 20-109(A), we analyze this issue in light of the standard set forth in Code § 20-109(A) pursuant to the Property Settlement Agreement ("PSA").2
"Upon the petition of either party the court may increase... spousal support and maintenance... as the circumstances may make proper." Code § 20-109(A). '"In a petition for modification of... spousal support, the burden is on the moving party to prove [by a preponderance of the evidence] a material change in circumstances that warrants modification of support.'" Roberts v. Roberts, 41 Va. App. 513, 528, 586 S.E.2d 290, 297 (2003) () (quoting Richardson v. Richardson, 30 Va. App. 341, 347, 516 S.E.2d 726, 729 (1999)). "Whether a change of circumstances exists is a factual finding that will not bedisturbed on appeal if the finding is supported by credible evidence." Ohlen v. Shively, 16 Va. App. 419, 423, 430 S.E.2d 559, 561 (1993) (quoting Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986)).
With regard to any material change in circumstances, "[t]he petitioner must demonstrate a material change in circumstances from the most recent support award," id. (citing Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119 (1991)), and "[t]he material change must relate to either the need for support or the ability to pay," Barton v. Barton, 31 Va. App. 175, 177-78, 522 S.E.2d 373, 374 (1999) (citations omitted). "Courts must make support awards based upon 'current circumstances and what the circumstances will be within the immediate or reasonably foreseeable future.'" Id. at 178, 522 S.E.2d at 375 (quoting Srinivasan v. Srinivasan, 10 Va. App. 728, 735, 396 S.E.2d 675, 679 (1990)). "What is 'reasonably foreseeable' depends on the circumstances of the particular case." Furr, 13 Va. App. at 482, 413 S.E.2d at 74. Thus, "[i]n considering a denial of a request for a reduction of support payments, courts must look to 'objective evidence available at the time of the previous award in order to assess what increases in expenses might reasonably have been expected.'" Barton, 31 Va. App. at 179, 522 S.E.2d at 375 (quoting Furr, 13 Va. App. at 482, 413 S.E.2d at 74). "In doing so, we avoid assessing such increases in light of evidence that these increases have, in fact, occurred." Furr, 13 Va. App. at 482, 413 S.E.2d at 74.
In its letter opinion, the circuit court found that there had been no material change in circumstances that were not within the contemplation of the parties when they entered into the PSA and denied the motion to amend spousal support. While the circuit court found that husband's income had decreased, it found that the parties knew at the time they entered into the PSA that husband's Rhode Island disability retirement pay would go down if he earned over a certain amount, that inflation existed impacting the true value of spousal support, that husband'semployment with the United States Coast Guard ("USCG") was not permanent, and that wife would begin a full-time job that paid her more. Thus, the issue is whether there is credible evidence supporting the circuit court's finding that the material changes in circumstances were within the contemplation of the parties when they entered into the PSA.
Husband states that the circuit court's finding that the parties "knew that [w]ife would begin a job that paid" was unsupported because the evidence established that she had a paying job at the time they entered into the PSA and at the time the final decree of divorce was entered. He argues further that there is no evidence that husband knew that wife was in college, or that the parties contemplated that wife would graduate from college and would subsequently obtain full-time employment receiving a significant increase in her income. However, wife contends that the increase in wife's income was not a sufficient change in circumstances because the parties "knew [w]ife would begin a job that paid" because she already had a part-time paying position at the time they entered into the PSA and divorced. Wife further contends that the circuit court's statement was intended to mean that everyone expected wife to obtain a full-time job with a full-time salary after she graduated from college.
Our review of the record in this case does not support the circuit court's finding that the fact wife would start a "job that paid" was foreseeable and in the contemplation of the parties at the time they entered into the PSA in September 2005. In 2005, wife began attending college full time, and graduated in 2008. In 2006, wife received $14,463.50 from her part-time job, which was generally consistent with her 2005 income from six months of part-time work measured on a monthly basis. There is nothing in the record that indicates that the parties contemplated she would begin "a job that paid" since she already had a paying job, or that she would obtain a full-time position with a significant increase in her income upon graduating fromcollege. Thus, there is no credible evidence in the record supporting the circuit court's finding, and the circuit court erred in finding otherwise.
Husband next contends that the circuit court's conclusion that the parties knew husband's employment with the USCG was not permanent is not established by the evidence. Yet, husband asserts on brief that "[w]hile it is true that the parties knew that [h]usband's employment with the [USCG] was not permanent-as no employment position is ever permanent-there is absolutely no evidence in the record that the parties knew when [h]usband would leave active duty with the [USCG]."
Husband testified that when the USCG had a contract they could not fill, they activated reservists to fill the position. When that contract ended, if there were no other contracts available, the USCG would then remove the individual from active duty and return him to reserve status. In addition, wife testified that the parties knew that husband's job with the USCG was not permanent. Thus, the evidence supports the circuit court's finding that the...
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