Richardson v. Richardson

• Decision Date: 27 July 1999
• Docket Number: Record No. 0834-98-4.
• Citation: 30 Va. App. 341,516 S.E.2d 726
• Parties: Joan M. RICHARDSON v. Joseph L. RICHARDSON.
• Court: Virginia Court of Appeals

516 S.E.2d 726

30 Va. App. 341

Joan M. RICHARDSON v. Joseph L. RICHARDSON.

Record No. 0834-98-4.

Court of Appeals of Virginia, Alexandria.

July 27, 1999.

Joseph A. Condo (Condo & Masterman, P.C., Vienna, on brief), for appellant.

J. Patrick McConnell (Elizabeth Laura Salans; Odin, Feldman & Pittleman, P.C., on brief), Fairfax, for appellee.

Present: FITZPATRICK, C.J., LEMONS, J., and DUFF, Senior Judge.

LEMONS, Judge.

Joan M. Richardson appeals an order of the Circuit Court of Fairfax County granting Dr. Joseph L. Richardson a reduction in child and spousal support payments. On appeal, Mrs. Richardson argues that the court erred in requiring her to prove that the claimed reduction of Dr. Richardson's income was due to his own acts or neglect, that the burden of proof should have rested on Dr. Richardson, and that Dr. Richardson failed to meet the burden. Mrs. Richardson also argues that the trial court erred in refusing to grant her request for attorney's fees. We find that the trial court did not err in granting Dr. Richardson a reduction in child and spousal support payments; however, the trial court utilized an improper factor in refusing to award Mrs. Richardson attorney's fees and costs. We reverse and remand for reconsideration of Mrs. Richardson's petition for attorney's fees and costs at trial.

I. BACKGROUND

Dr. Joseph L. Richardson ("Dr. Richardson") and Joan M. Richardson ("Mrs. Richardson") were divorced in 1996. They have two children born of the marriage. On May 14, 1996, the parties entered into a marital settlement agreement ("Agreement") which resolved all issues of support, property, and equitable distribution. According to the Agreement, at the time of the divorce Dr. Richardson was earning an annual salary of $270,000 as a dentist with Reston Dental Group, P.C., and Mrs. Richardson was earning $30,000 annually working in geriatric care management. The Agreement provided that Dr. Richardson would pay $4,200 per month in modifiable spousal support and $1,500 per month for each child in child support. On October 2, 1997, Dr. Richardson filed a motion for reduction of support, alleging that his income had been "greatly reduced from its prior level" and that Mrs. Richardson's financial status had improved following entry of the final decree of divorce. Dr. Richardson requested that his obligations to pay both child support and spousal support be reduced and that he be awarded attorney's fees and costs.

At the time of the hearing on February 19, 1998, Dr. Richardson was current with all spousal support and child support payments. Dr. Richardson testified that he had been a practicing dentist with Reston Dental Group, P.C., for ten years and was a shareholder in the practice. Dr. Richardson stated that on August 28, 1997, he was unanimously voted out of Reston Dental Group at a shareholders' meeting. Dr. Richardson testified that he "was not aware of anything [he] did to displease the group" and that he was not given a reason for his dismissal. The termination agreement presented by Dr. Richardson at the hearing stated that his termination was "involuntary" and was based upon "personality conflicts and differences."

Dr. Richardson admitted that he was in a serious romantic relationship with Lisa Parker, who had been employed with Reston Dental Group as an assistant since 1993. Dr. Richardson and Lisa Parker resided together. Dr. Richardson testified that Reston Dental Group had a "spoken rule" that prohibited spouses from working in the practice but that there was "no mention of significant others [working in the practice] ever." Dr. Richardson admitted that Dr. Forsbergh, another partner with Reston Dental Group, suggested that Dr. Richardson ask Parker to resign, stating, "since we were as the equivalent of spouses, even though we weren't married, that it fell under this heading of spouses not working in the office."

Dr. Richardson testified that after his dismissal, he opened a practice of his own, Reston Dental Care, retaining approximately eighty percent of his patients from his former practice. Dr. Richardson stated that he did not initially receive any pay from his new practice but that he gradually began to draw earnings from the new corporation. At the time of the hearing, he was earning approximately $8,000 per month. Dr. Richardson testified that he did not consider moving out of the Reston area because he had practiced there for twenty years and he feared that if he relocated, he would lose a large number of patients. He also stated that he did not pursue a salaried position because such positions offered a salary of only $50,000 to $80,000 per year. Dr. Richardson testified that his ability to join another practice as a partner or shareholder was unlikely because he did not know of any practices in Reston that would take on another partner.

Dr. Richardson stated that he works six days a week for his new practice, renting space from another dentist. Parker works for Dr. Richardson, earning a salary of $25 per hour as an office manager. Dr. Richardson stated that because the size of the rented space is limited, he is "in the process of obtaining a piece of real estate to build a new office." Dr. Richardson's accountant, James Veltri, testified that purchasing or renting a new office and equipment to operate the dental practice would raise Dr. Richardson's expenses by about $3,000 per month.

Finding Dr. Richardson's income was $9,000 per month, and Mrs. Richardson's income was $4,650 per month, the trial court reduced Mrs. Richardson's spousal support from $4,200 to $2,000 per month and reduced child support from $1,500 to $578 per month. The court declined to award attorneys' fees to either party.

Mrs. Richardson contends the trial court erred by: (1) placing on her the burden of proving that Dr. Richardson's termination was caused by his own act or neglect; (2) finding that Dr. Richardson's claimed reduction of income was not due to his own act or neglect; and (3) finding that she was not entitled to attorney's fees. The court ordered both the reductions in spousal support and child support retroactive to January 1, 1998.

II. MODIFICATION OF SUPPORT

Because the court heard the evidence at trial, its decision "is entitled to great weight and will not be disturbed unless plainly wrong or without evidence to support it." Piatt v. Platt, 27 Va.App. 426, 432, 499 S.E.2d 567, 570 (1998) (citations omitted); see Code § 8.01-680. In reviewing the findings of the trial court, "we construe the evidence in the light most favorable to husband, the prevailing party below, granting to him all reasonable inferences fairly deducible therefrom." Rogers v. Yourshaw, 18 Va. App. 816, 818, 448 S.E.2d 884, 885 (1994).

On appeal, Mrs. Richardson argues that the trial court erred by failing to require Dr. Richardson to establish that his claimed reduction in income was not due to his own voluntary act or neglect. Mrs. Richardson argues that the court improperly placed this burden on her. She argues that Dr. Richardson "knowingly jeopardized his employment and livelihood and, in fact, lost his job, by refusing to obtain the resignation of his live-in companion as an employee of his dental practice, after being told by another principal of the practice that her employment violated company policy."

In a petition for modification of child support and spousal support, the burden is on the moving party to prove a material change in circumstances that warrants modification of support. See Street v. Street, 24 Va.App. 2, 9, 480 S.E.2d 112, 116 (1997)

. The material change "must bear upon the financial needs of the dependent spouse or the ability of the supporting spouse to pay." Id. at 9, 480 S.E.2d at 116 (citations omitted). An obligor/parent seeking a reduction in the amount of his or her child support obligation "must ... make a full and clear disclosure about his ability to pay, and he must show his claimed inability to pay is not due to his own voluntary act or because of his neglect." Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119 (1991).

Spouses deemed entitled to support have. the right to be maintained in the manner to which they were accustomed during the marriage, but their needs must be balanced against the other spouse's financial ability to pay In addition, a court retains jurisdiction to modify an award of periodic payments for support upon a showing that a change of circumstances has occurred, affecting the need for the payments or the ability to make them.

Floyd v. Floyd, 1 Va.App. 42, 45, 333 S.E.2d 364, 366 (1985) (citations omitted); see Code 20-109.

Dr. Richardson, as the moving party, was required to prove that changed financial circumstances required a modification of his duty to pay child and spousal support and that his claimed inability to pay support at the previously established level was not due to his own voluntary act or neglect. At the hearing on February 19, 1998, Dr. Richardson testified that he did not know why he was terminated from Reston Dental Group. He stated that on August 26, 1997, he was given notice of a shareholders' meeting convened to address his status as a shareholder. Dr. Richardson testified that the shareholders' meeting was held two days later, on August 28, 1997, and during the meeting, the shareholders voted unanimously to terminate him as a shareholder.

Dr....