Sewell v. Sewell
| Decision Date | 30 July 2013 |
| Docket Number | Record No. 2053-12-4 |
| Court | Virginia Court of Appeals |
| Parties | MURRAY A. SEWELL v. WENDY S. SEWELL |
UNPUBLISHED
Present: Chief Judge Felton, Judges Humphreys and Kelsey
Argued at Alexandria, Virginia
MEMORANDUM OPINION* BY
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jeff Evan Lowinger (Joseph O. Hankins; New & Lowinger, P.C., on brief), for appellant.
Brian D. West (The West Law Group, P.C., on brief), for appellee.
Murray A. Sewell petitioned the trial court to reduce his spousal support obligation to his former wife, Wendy S. Sewell. The trial court concluded that changed circumstances did not warrant the reduction and denied the petition. Finding no abuse of discretion, we affirm.
On appeal, "we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences." White v. White, 56 Va. App. 214, 216, 692 S.E.2d 289, 290 (2010) (quoting Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003)). "That principle requires us to discard the evidence of the appellant which conflicts, either directly or inferentially, with the evidence presented by the appellee at trial." Hamad v. Hamad, 61 Va. App. 593, 596, 739 S.E.2d 232, 234 (2013) (quoting Owens v. Owens, 41 Va. App. 844, 848-49, 589 S.E.2d 488, 491 (2003)).
Murray Sewell, appellant, and Wendy Sewell, appellee, divorced in 2007 after twenty-seven years of marriage. At that time, appellant agreed to pay his former wife $9,000 a month in spousal support.1 Four years later, appellant filed a petition seeking a reduction in his support obligation. He pointed out that the divorce decree incorporated the parties' agreement, which made clear the spousal support "award may be increased or decreased by the court upon proper motion due to a material change in circumstances . . . meaning a court of competent jurisdiction can increase, decrease, or terminate this obligation upon a proper showing." App. at 4. In support of his petition, appellant claimed his income had steadily fallen since 2007.
In 2007, appellant worked for Electronic Data Systems, LLC (EDS). His income varied from year to year and was comprised of a base salary, bonuses, commissions, and stock options. Before settling on a spousal support amount, appellant stated in sworn discovery answers that his estimated 2006 EDS income was "$348,000." Id. at 393. In a footnote, appellant explained his estimate included a "salary of $180,000 plus commissions and bonuses averaged over a three year period." Id. Thus, working with half of 2006 calendar year's data, coupled with a three-year history of compensation, appellant estimated that his commission and bonus income for 2006 would be $168,000.
As it turns out, appellant's estimate was off by more than $150,000. By the end of 2006, his actual earnings from EDS were more than $500,000. Id. at 324. "So there was a rather stark difference," he later conceded, between his "projected" and actual earnings that year. Id. at 86. At any rate, the parties were still negotiating a settlement when appellant became aware of the true figure. Despite this, he never supplemented his interrogatory answers — as required by Rule 4:1(e) — to include the updated income information. In February 2007, unaware ofappellant's true 2006 income, appellee relied on his earlier, inaccurate figure as part of a three-year baseline income average to arrive at the agreed-upon $9,000 monthly support award. Id. at 143-46, 157, 159. The trial court entered the divorce decree in March 2007 and incorporated the support portion of the settlement agreement.2
Appellant's income fluctuated over the next several years. His annual income was approximately $526,000 in 2007, $463,000 in 2008, and $419,000 in 2009. Id. at 308, 486, 325, 572.3 He voluntarily left EDS in 2010, apparently dissatisfied with the direction the business had taken since being acquired in 2008 by Hewlett-Packard Co., and started a new job with Harris IT Services Corp. In his petition, appellant alleged that a "tumultuous work environment" and the "threat of losing his job" were factors influencing his decision to quit Hewlett-Packard Co. See id. at 10 (Pet. for Mod. of Spousal Supp. ¶ 6). At the evidentiary hearing, however, he produced no corroboration for these assertions.
In his new job as Vice President of Business Development, appellant was promised $215,000 in base salary, as well as stock options and $200,000 in bonuses if he met his performance targets. Id. at 59. He understood, however, that "there was a risk involved" in changing jobs. Id. at 92. In 2010, while consecutively employed at both jobs, appellant earned $528,094. Id. at 62, 350. During 2011, appellant's first full year at Harris IT Services Corp., his annual income dropped to $347,000. Id. at 64. At the time of his hearing in October 2012, he projected he would earn his base salary of $217,000. Though he was "optimistic" that he wouldalso receive a $200,000 bonus in the company's 2012-13 fiscal year, id. at 89, appellant did not include that figure in his estimated 2012 income.
Appellee, on the other hand, did not graduate from high school or college, but earned a GED as a teenager. During their twenty-seven years of marriage, appellant was the primary wage earner for the family. Appellee stayed home to care for their children while they were young. Now fifty-seven, appellee suffers from Hashimoto's disease and a brain lesion. She works as a "patient care tech" at a local hospital during the 7:00 p.m. to 7:00 a.m. night shift. Id. at 139-40. Her salary is approximately $30,000 per year. Appellee testified that "if there was a significant reduction in the alimony . . . [she] will have to get rid of [her] house, [she] will have to get out of it somehow." Id. at 147.
During closing arguments, counsel addressed at length the methodology used by the parties to determine the $9,000 support amount in the settlement agreement. Appellant's counsel argued, "First of all, to be clear, when Mr. Sewell proposed a three-year average [of his income], he was employed by EDS, and he had been there a long time" and, "because of the unevenness of that employment, it seemed a good way to project his bonus going forward at EDS." Id. at 578. Counsel conceded appellant's July 2006 income estimation of $348,000 turned out to be rather low, given that appellant's actual income exceeded $500,000, but argued appellee had not relied on the inaccurate estimate. Appellant's counsel explained, "the number was a negotiated number having nothing to do with his income," id. at 128, but was instead driven by appellee's "needs, because at a certain point you reach an income level that is so high, it really doesn't matter what you're earning; it's what are her reasonable needs," id. at 586.
In any event, appellant's counsel argued, it would be imprudent at that point for the trial court to use a three-year income averaging method to determine whether changed circumstances warranted a reduction in support. His ability to pay should be the deciding factor. The trial courtrejected these arguments and found appellant had not shown a material change in circumstances warranting a reduction in spousal support.
On appeal, appellant argues the trial court abused its discretion by refusing to reduce his spousal support obligations. He claims the court improperly considered appellant's post-divorce income on a three-year rolling basis as a way of estimating his current income. Appellant also disagrees with the court's consideration of his voluntary resignation in 2010 from EDS to accept a lower paying job at Harris IT Services Corp.4
A spousal support award, like any other final order of the circuit court, remains subject to Rule 1:1, regardless of whether the award is consensual or contested. Under res judicata principles, an unappealed support order can be modified only upon a showing of changed circumstances. See Roberts v. Roberts, 41 Va. App. 513, 528, 586 S.E.2d 290, 297 (2003); Barton v. Barton, 31 Va. App. 175, 177-78, 522 S.E.2d 373, 374-75 (1999). Such a showing of changed circumstances permits — but does not require — the trial court to exercise its discretion to modify the support award. "Aside from having to prove a material change in circumstances, husband had to prove that this change warranted a support modification." Broadhead v.Broadhead, 51 Va. App. 170, 180, 655 S.E.2d 748, 752 (2008) (emphasis added and citation omitted); see also Blackburn v. Michael, 30 Va. App. 95, 103, 515 S.E.2d 780, 784 (1999).
The burden of proof remains at all times on the party seeking to modify the award to demonstrate by a preponderance of the evidence the justification for the requested modification. It involves not merely a showing of a change in circumstances, but proof that the equities of the case demonstrate that "this change warrants a modification of support." Dailey v. Dailey, 59 Va. App. 734, 742-43, 722 S.E.2d 321, 326 (2012) (citation omitted and emphasis added); Street v. Street, 25 Va. App. 380, 386, 488 S.E.2d 665, 668 (1997) (en banc) (citation omitted); Moreno v. Moreno, 24 Va. App. 190, 195, 480 S.E.2d 792, 795 (1997) (citation omitted); Reece v. Reece, 22 Va. App. 368, 372-73, 470 S.E.2d 148, 151 (1996).
In addition, when a payor ex-spouse seeks a modification, he "must also show that his lack of ability to pay is not due to his own voluntary act or because of his neglect." Edwards v. Lowry, 232 Va. 110, 112-13, 348 S.E.2d 259, 261 (1986) (citation omitted). To prove a change in circumstances justifying a reduction in support, the payor ex-spouse "must establish that he is not 'voluntarily unemployed or voluntarily under employed.'" Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119 (1991) (quoting Code § 20-108.1(B)(3)); see also Va. Dep't of Soc. Servs. v. Ewing, 22 Va. App. 466, 470, 470 S.E.2d 608, 610 (1996). The issue is not simply the reasonableness of the payor...
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