Street v. Street

• Decision Date: 12 August 1997
• Docket Number: No. 2363-95-4,2363-95-4
• Citation: 488 S.E.2d 665,25 Va.App. 380
• Parties: Daniel T. STREET v. Joyal C. STREET. Record
• Court: Virginia Court of Appeals

Page 665

488 S.E.2d 665

25 Va.App. 380

Daniel T. STREET v. Joyal C. STREET.

Record No. 2363-95-4.

Court of Appeals of Virginia Richmond.

Aug. 12, 1997.

Lee Anne Washington, White Stone (Chaplin, Papa & Gonet, Richmond, on brief), for appellant.

Richard J. Byrd, Fairfax (Byrd, Mische, Bevis, Bowen, Joseph & O'Connor, P.C., on briefs), for appellee.

Present: MOON, C.J., and BAKER, BENTON, COLEMAN, ELDER, BRAY, FITZPATRICK and OVERTON, JJ.

MOON, Chief Judge.

Daniel T. Street ("husband") appeals the trial court's denial of his petition for modification of spousal and child support. Husband asserts that the trial court erred in finding that he failed to prove a change of circumstances that warranted modification of his support obligation. A panel of this Court reversed the trial court's decision, holding that the trial court erroneously disregarded uncontradicted expert testimony that husband's mental condition worsened in the months following the divorce decree, constituting a material change in circumstances warranting modification of his support obligation. See Street v. Street, 24 Va.App. 2, 480 S.E.2d 112 (1997). We granted Joyal C. Street ("wife") a rehearing en banc. We hold that because the trial court determines a witness' credibility and the weight to be given an expert's opinion, the trial court, having found husband's conduct suspect, was not required to give any weight to the expert opinion. Accordingly, we hold that the trial court's decision was not plainly wrong, and we affirm.

FACTS

The parties married in 1969 and had five children, two of whom were dependents at the time of the hearing. During the marriage, husband supported wife and their children by operating a carpet installation business. The business' primary source of revenue was from subcontracts with L & L Carpet Company, a business operated by Eugene Lane, husband's long-time friend. Husband expanded his business in 1990 to include the retail sale of carpeting materials. From 1990 to 1994, husband's business averaged gross revenues of more than $1,000,000 a year and paid husband an annual salary of approximately $76,000. Husband's financial records established that in actual withdrawals, husband withdrew $117,861 in 1993 and $87,419 in 1994 for personal use. Despite the business' substantial revenues, poor record keeping and billing practices resulted in a frequently overdrawn checking account and, by the end of 1994, current liabilities that exceeded current assets by at least $36,000. In addition, by 1995, the business owed federal taxes for 1992, 1993, and 1994, and had borrowed $18,000 from husband's relatives.

The parties separated in December, 1992, and wife filed for divorce in 1993. The trial court held three days of hearings on equitable distribution, spousal support and child support. After extensive testimony regarding the status of husband's business, including evidence concerning its debts and tax liabilities, the trial court determined that the business had a fair market value of $160,000 and that husband drew a salary of $6,139 per month from his business and an additional $1,500 per month from "side jobs." In the equitable distribution division, the trial court awarded the business to husband, the marital home to wife. As to support, the trial court ordered husband to pay $2,300 per month in spousal support and $921 per month in child support. Husband testified that after hearing the court's decision, that he felt that he could not continue with his business:

I thought I couldn't continue. I just felt that I couldn't continue the way I was continuing. I knew that I was--I was $14,000 behind in my checking account, and we were forcing checks every day almost, and I owed a lot of people a lot of money and I didn't know how to stop it. And I knew that I was going to be forced to be closed if he [Lane] didn't come in and maybe reconstruct me or tell me what I was doing wrong or something.

The day after the trial court's order, Lane reviewed husband's books and agreed to assist husband, provided husband agreed to follow Lane's directions. After spending three days assessing husband's business, Lane concluded that the business was beyond salvage and he told husband that the business should be dismantled in an orderly fashion such that none of the employees would be "hurt." Lane recommended that husband "shouldn't just shut the doors and board it up." Consequently, husband began the procedure of closing his business. On June 16, 1995, husband concluded dismantling his business. Subsequently, husband went to work for Lane at Lane's L & L Carpet business, earning a salary of $625 per week, a reduction in income of approximately sixty percent.

On August 18, 1995, husband filed a petition for modification of spousal and child support, alleging a material change in both his mental health and the condition of his business. At a modification hearing on September 27, 1995, husband's mental health counselor, Zeena Zeidberg, and his psychologist, Ellen Dixon, testified regarding husband's mental condition. Ms. Zeidberg stated that she had begun seeing husband in January, 1993, at which time she observed that husband had disorganized, unfocused thought patterns and regularly encountered difficulty maintaining a structured discussion during their appointments. Based on her observations, Ms. Zeidberg suspected that husband might be suffering from Attention Deficit Disorder (ADD), an involuntary, neurological disorder that impairs a person's ability to process information, a condition that may be exacerbated by stress. Ms. Zeidberg arranged for husband to take test dosages of the prescription drug Ritalin, beginning in May, 1994, a year before the final support decree was entered. After husband responded well to the drug, Ms. Zeidberg suggested husband see a clinical psychologist for a complete evaluation. Husband chose not to pursue a diagnosis at that time but continued taking the test dosages of Ritalin.

Ms. Zeidberg testified that she believed that husband had suffered from ADD throughout the course of his life and that he had suffered from the untreated disorder during the entire period that he operated his business. She stated that after beginning his treatment, husband's mental condition improved markedly and continued to do so until the time of the final divorce proceedings. She testified that after the final divorce proceedings began, despite the fact that husband was still taking Ritalin, his condition worsened and he appeared to show symptoms of depression as well as ADD.

Dr. Ellen Dixon testified that she consulted with Dr. Eist, a psychiatrist who had seen husband on August 23, 1995, and who had diagnosed him with ADD and chronic depression. Dr. Eist concluded that husband "had this ADD undoubtedly all his life" and that he suffered from severe depression as well as from an anxiety disorder. Dr. Dixon also concluded that husband suffered from ADD and depression and anxiety disorders and testified that because ADD, chronic depression, and anxiety disorder are all neurochemical disorders that affect the neurotransmitter system, "they all make each other worse" when they occur simultaneously. When asked whether specific stresses in husband's life had exacerbated husband's ADD, Dr. Dixon speculated that it was possible but added that "there is a lot I don't know here because I am new in this picture."

Dr. Dixon offered the following opinion regarding husband's counsel's inquiry concerning husband's ability to work:

Q. In the two sessions that you have had with Mr. Street, have you been able to or do you have an opinion of his current ability to make the kinds of decisions that someone managing a business would have to make, the sort of prioritization and discretionary decisions?

A. Yes.

Q. What is your opinion?

A. My opinion on that is there is no way on earth Mr. Street could run a business now, or I suspect ever, or in the past, frankly, effectively work.

The trial court later asked Dr. Dixon if the purported deterioration of husband's mental condition had occurred since May and she stated that she believed that "these behaviors have been with [husband] forever."

At the conclusion of the evidence, the trial court denied husband's petition, finding that husband had voluntarily closed his business and that his psychological problems existed prior to the final divorce hearing. Citing Antonelli v. Antonelli, 242 Va. 152, 409 S.E.2d 117 (1991), the trial court concluded that a modification of husband's support obligations was prohibited as husband's reduction in income resulted from his voluntary closure of his business.

MODIFICATION OF SPOUSAL AND CHILD 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." Schoenwetter v. Schoenwetter, 8 Va.App. 601, 605, 383 S.E.2d 28, 30 (1989); Mansfield v. Taylor, 24 Va.App. 108, 114, 480 S.E.2d 752, 755 (1997). The material change "must bear upon the financial needs of the dependent spouse or the ability of the supporting spouse to pay." Hollowell v. Hollowell, 6 Va.App. 417, 419, 369 S.E.2d 451, 452 (1988).

Here, the record established that husband's ADD was not a new condition but, rather, as his psychiatrist testified, was a condition that had "been with [husband] forever." As such, the mere diagnosis and treatment of a condition which existed during the entire period that husband ran his business, the income upon which his support order was based, would be insufficient to sustain a finding of a material change in circumstances. However, the only witnesses who testified about husband's mental condition also opined that the extreme stress husband experienced as a result of the dissolution of his marriage had exacerbated his ADD and caused him to suffer from two new disorders, chronic depression and anxiety. Husband argues that...