Schoenwetter v. Schoenwetter
| Citation | 383 S.E.2d 28,8 Va.App. 601 |
| Decision Date | 22 August 1989 |
| Docket Number | No. 0606-88-4,0606-88-4 |
| Parties | Charles P. SCHOENWETTER v. Joanne SCHOENWETTER. Record |
| Court | Virginia Court of Appeals |
Burke F. McCahill (Douglas L. Fleming, Jr., Hanes, Sevila, Saunders & McCahill, P.C., on brief), Leesburg, for appellant.
Robert T. Mitchell, Jr. (Hall, Monahan, Engle, Mahan & Mitchell, on brief), Winchester, for appellee.
Present: BARROW, DUFF and KEENAN, JJ.
Charles P. Schoenwetter (husband) appeals from a decree in which the trial court increased his spousal and child support obligations. The issues presented in this appeal are: (1) whether the trial court had authority to modify the support order when the suit in which it was entered had been discontinued pursuant to Code § 8.01-335(A) 1; (2) whether the trial court failed to consider the necessary requirements for modifying support; and (3) whether the amounts of support ordered constituted an abuse of discretion. We affirm the decision of the trial court based on our finding that it did have authority to modify the prior support order, and that the evidence in the record supports the court's decision increasing spousal and child support.
The parties were divorced in December 1981. The divorce decree specifically reserved the matters of spousal and child support for later determination. In July 1982, the trial court set spousal support at $325 per month and total child support for the three minor children at $650 per month.
The record reflects that in 1983, two notices were filed for the taking of depositions. Also, in December 1983, Joanne Schoenwetter (wife) filed a response to the husband's request for production of documents. There were no further notices or pleadings filed in this case until January 1986 when the trial court sent notice to counsel, pursuant to Code § 8.01-335(A), of its intent to strike the case from the docket. In February 1986, the court entered an order discontinuing the case pursuant to Code § 8.01-335(A), based on its finding that no decree or proceeding had been taken in the cause for a period of more than two years.
In July 1986, the wife filed a new chancery action requesting an increase in spousal and child support. On February 17, 1988, the trial court conducted a hearing on the merits. Between 1982 and the hearing in 1988, two of the three minor children had become emancipated, leaving only one minor child to whom support was owed. The evidence showed that in 1982, the wife was unemployed and had no income. At the time of the 1988 hearing, she had an $840 net monthly income. The husband's net monthly income in 1982 was $2,786. As of February 1988, his net monthly income had risen to $6,186. The wife submitted a 1988 monthly expense statement showing $2,872.40 in expenses for herself and her minor daughter. The husband's 1988 income and expense statement showed monthly expenses of $6,374.
The husband first argues that the trial court did not have authority to modify the 1982 support order because the suit in which it was entered had been discontinued under Code § 8.01-335(A). We disagree based on our finding that the order discontinuing the divorce suit was void. As its language plainly provides, Code § 8.01-335(A) applies only to pending actions. It does not apply to suits in which a final order or decree has been entered. As stated by the Supreme Court in Nash v. Jewell, 227 Va. 230, 234, 315 S.E.2d 825, 827 (1984): "[T]he purpose of Subsection A [Code 8.01-335] is to enable trial courts to identify cases which litigants or their counsel are not interested in pursuing to a conclusion." 2
In the case before us, we find that the trial court improperly used Code § 8.01-335(A) to strike a suit in which a final decree had been entered. A decree or order is void if the character of the judgment was beyond the power of the court to render, or if the mode of procedure employed by the court was not one that it could lawfully use. Lapidus v. Lapidus, 226 Va. 575, 579, 311 S.E.2d 786, 788 (1984). Here, the trial court employed a mode of procedure to discontinue a case that clearly did not fall within the authorization of the statute. For this reason, we find that the order of discontinuance entered in this case was void.
Since the divorce suit could not be dismissed by the trial court, it remained a viable case on the court's docket. We find that the wife's new bill of complaint requesting modification of the 1982 support order operated to reactivate the issue of support before the trial court, which then had the authority under Code §§ 20-108 and 20-109 to modify child and spousal support. 3
The husband next argues that the trial court failed to apply the proper standards for modifying spousal and child support. He contends that the trial court considered only the present circumstances of the parties and failed to make an initial determination whether there had been a material change in the parties' circumstances. The wife asserts that since neither party disputed that there had been a change in circumstances, and since the record contains ample evidence supporting the existence of such changed circumstances, this issue was in effect conceded by the husband in the trial court.
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. Yohay v. Ryan, 4 Va.App. 559, 566, 359 S.E.2d 320, 324 (1987). There is extensive evidence in the record before us that both parties had experienced material changes in both their income and expenses. By the date of the hearing, the husband's net income had increased by $3,400 per month. The wife's 1988 income had increased by $840 per month. In February 1988, the husband's monthly expenses were listed at $6,374. The wife's expense statement showed monthly expenses of $2,872.40. Although the trial court's letter opinion simply referred to its "review of the present circumstances of the parties," we believe that the record supports a finding that this statement was predicated upon an implicit determination that the parties' circumstances had materially changed. Since both parties alleged in their pleadings a material change in circumstances, and the evidence of such change was ample and unrefuted, we find that the trial court's failure to find specifically on the...
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...674 S.E.2d 597, ___ (2009) (quoting 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))). The material change in circumstances since the previous support award "must bear upon the financial needs ......
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...it'" for this Court to reverse. 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)). A. Whether the Circuit Court Erred in Declining to Impute Income to Husband argues that a party seeking support......
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