Nielsen v. Nielsen

• Citation: 860 S.E.2d 397,73 Va.App. 370
• Decision Date: 27 July 2021
• Docket Number: Record No. 0010-21-4
• Court: Virginia Court of Appeals
• Parties: Jacqueline M. NIELSEN v. Alan H. NIELSEN

73 Va.App. 370

860 S.E.2d 397

Jacqueline M. NIELSEN

v.Alan H. NIELSEN

Record No. 0010-21-4

Court of Appeals of Virginia.

JULY 27, 2021

Lawrence D. Diehl (Barnes & Diehl, P.C., on brief), Richmond, for appellant.

John H. Kitzmann, Charlottesville (Hope F. Rosen ; Davidson & Kitzmann, PLC; ShounBach, on brief), for appellee.

Present: Judges Petty, Athey and Senior Judge Frank

OPINION BY JUDGE WILLIAM G. PETTY

Appellant argues on appeal that the trial court should not have found a material change of circumstances and should not have decreased spousal support after appellee's prior decision to accept a separation package from his previous employer. We conclude the trial court did not err in finding a material change in circumstances and did not abuse its discretion in determining the modified spousal support amount.

I. BACKGROUND

"When reviewing a trial court's decision on appeal, we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences." Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833 (2003).

Jacqueline M. Nielsen (wife) and Alan H. Nielsen (husband) were married in 1987. In 2016, the parties signed a separation agreement. At the time of the divorce decree in 2017, the trial court awarded wife $10,000 per month in spousal support until November 1, 2027, consistent with the separation agreement. During the relevant years of 2016 and 2017, husband worked for AOL as Vice President of Corporate Services, a title he had held for about ten years.¹ His duties included design, construction, and management of leased real estate globally. The real estate operations included security, card access administration, corporate travel, data center management, food service for the organization, mailing and shipping, and maintaining printers for sixty-five offices globally. Husband's base salary at AOL was $250,000, and, with bonuses and stock, his total earnings were $712,000 in 2016 and $364,000 in 2017. Husband's earnings for 2018 were $557,000.

AOL was purchased by Verizon, and during 2018 Verizon began bringing some of AOL's operations under Verizon to manage them directly. Husband became an employee of Verizon in fall 2018. His job title was changed to Director of Facility Operations. As part of the change, husband was no longer responsible for global operations. He was no longer responsible for food service and mailing and printing functions. He was no longer responsible for corporate travel functions. Husband testified that, except for some specific security and active construction projects, all his other functions and staff were realigned into the Verizon business units.

Husband's staff decreased from twenty-five employees to four employees.

In September 2018, Verizon offered its employees a voluntary separation package. Husband testified that it was clear to him that his position was being eliminated, as he had seen similar positions eliminated during the company's realignment.² Husband felt there was no future for his position with Verizon based on his significantly diminished responsibilities. Husband's employment with Verizon ended in December 2018. His separation payment was paid in 2019 and totaled $825,000.

Husband continued to make spousal support payments as he looked for new employment. Husband "leveraged [his] network" and spoke to recruiters. He spoke with thirty or forty companies and had a dozen interviews but received no offers. After ten months, husband took a short-term consulting engagement with CPG for a project in Canada. When that project ended in January 2020, CPG asked husband to consult on a construction project in Washington State. When that project was successfully completed, CPG offered husband a full-time position with CPG effective May 2020. Husband had this job at the time of the hearing on modification of spousal support. His salary was $250,000 with a potential bonus of $50,000.

Husband filed a motion to modify spousal support in December 2019.³ At the September 30, 2020 hearing, the trial court received testimony and exhibits from the parties. Wife argued that there was no material change of circumstances because husband had left Verizon voluntarily and he had sufficient assets to pay the initial support award. The trial court found a material change of circumstances, found husband's departure from Verizon was not voluntary, and found that based on the parties’ needs, income, and assets the spousal support amount should be reduced to $6,000 per month.

Wife now appeals the trial court's decision. Wife's assignments of error can be distilled to three issues—whether the trial court erred in finding a material change in circumstances, whether the trial court erred in finding husband's departure from Verizon was not voluntary, and whether the trial court abused its discretion in reducing wife's spousal support.

II. ANALYSIS

Code § 20-109(B) authorizes a trial court to consider a modification of an award of spousal support. "The moving party in a petition for modification of support is required to prove both a material change in circumstances and that this change warrants a modification of support." Dailey v. Dailey, 59 Va. App. 734, 742-43, 722 S.E.2d 321 (2012) (quoting Moreno v. Moreno, 24 Va. App. 190, 195, 480 S.E.2d 792 (1997) ). The trial court then has broad discretion in deciding whether the spousal support award should be modified and, if so, by how much.

Broadhead v. Broadhead, 51 Va. App. 170, 180, 655 S.E.2d 748 (2008).

A. Material Change of Circumstances⁴

Wife argues that because husband voluntarily left his employment in 2018 and because he had sufficient assets from which he could have paid spousal support, it was error for the trial court to find a material change in circumstances. Wife argues that husband "took the risk by changing employment and this decision does not constitute a material change in circumstances to even get to stage two where the current financial status of the parties has to be addressed." Wife's argument conflates the two steps in the trial court's consideration.

Before a court may consider a party's motion to modify a support obligation, it must find a material change of circumstances. Barrs v. Barrs, 45 Va. App. 500, 506, 612 S.E.2d 227 (2005) ; Driscoll v. Hunter, 59 Va. App. 22, 33, 716 S.E.2d 477 (2011) ("A material change in circumstances, by itself, does not require the alteration of a spousal support award. Instead, the party seeking modification must show, in addition to a material change in circumstances, that the change ‘warrants a modification of support.’ " (quoting Moreno, 24 Va. App. at 195, 480 S.E.2d 792 )). "The material change in circumstances must have occurred after the most recent judicial review of the award," Barrs, 45 Va. App. at 506, 612 S.E.2d 227, and "not reasonably [have been] in the contemplation of the parties when the [most recent] award was made," Code § 20-109(B). The statutory scheme for modifying spousal support permits the court to consider modification only

upon finding (i) there has been a material change in the circumstances of the parties, not reasonably in the contemplation of the parties when the award was made or (ii) an event which the court anticipated would occur during the duration of the award and which was significant in the making of the award, does not in fact occur through no fault of the party seeking the modification.

Code § 20-109(B). Likewise, Code § 20-109(G) lists factors for the court to consider "if the court finds that there has been a material change in circumstances." Thus, the court's authority to consider a modification of spousal support is distinct from, and follows, the court's finding of a material change of circumstances.

"Significant changes in income often will constitute a material change in circumstances, thus satisfying the first component of that test."

Dailey, 59 Va. App. at 740, 722 S.E.2d 321. Whether there has been a material change of circumstances is a factual finding. Barrs, 45 Va. App. at 507, 612 S.E.2d 227. Moreover, "[w]e 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.’ " Id. (quoting Furr v. Furr, 13 Va. App. 479, 481, 413 S.E.2d 72 (1992) ).

Here, the trial court found a material change of circumstances based on the evidence that husband's "income has changed substantially ... for the worse since ... the divorce." The evidence presented at the hearing supported that finding. At the time of the April 2016 separation agreement establishing the initial spousal support award, husband was employed at AOL as Vice President of Corporate Services. His earnings from AOL that year, including bonuses and stock, was $712,000. At the time of the modification hearing in September 2020, AOL no longer existed as an independent company. Husband was employed as a project manager by CPG at a salary of $250,000 with a potential $50,000 bonus. Thus, "[t]he record shows that [husband] experienced the material change in circumstance necessary for the trial court to review his [spousal] support obligation, namely, that his actual income was much lower in [2020] than at the time of the initial award." Broadhead, 51 Va. App. at 181, 655 S.E.2d 748.

Nevertheless, wife argues that "based on the principles of Antonelli[ v. Antonelli, 242 Va. 152, 409 S.E.2d 117 (1991) ]," husband's departure from Verizon by a "voluntary separation agreement" should "not have been the basis for a material change of circumstances." As we explained, the reduction in husband's income was a material change of circumstances, and we do not agree that Antonelli requires a different outcome. In Antonelli, the Supreme Court affirmed the chancellor's ruling that "the father had proved ‘there was a financial change in circumstances’ and that this [change was] a material change of circumstances." Antonelli, 242 Va. at 154, 156, 409 S.E.2d...