Street v. Street

• Decision Date: 21 January 1997
• Docket Number: No. 2363-95-4,2363-95-4
• Citation: 24 Va.App. 2,480 S.E.2d 112
• Court: Virginia Court of Appeals
• Parties: Daniel T. STREET v. Joyal C. STREET. Record

Page 112

480 S.E.2d 112

24 Va.App. 2

Daniel T. STREET v. Joyal C. STREET.

Record No. 2363-95-4.

Court of Appeals of Virginia Richmond.

Jan. 21, 1997.

Rehearing En Banc Granted March 13, 1997.

M. Lee Anne Washington, Arlington (Surovell, Jackson, Colten & Dugan, P.C., Fairfax, on briefs), for appellant.

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

Present: MOON, C.J., and BENTON and ELDER, JJ.

ELDER, Judge.

Daniel T. Street (husband) appeals an order by the trial court denying his petition for modification of spousal and child support. Husband contends that the trial court erred in finding that he failed to prove a change of circumstances that warranted modification of his support obligations. For the reasons that follow, we reverse and remand.

I. FACTS

The parties married in 1969 and had five children, two of whom were unemancipated at the time of the hearing. The parties separated in December, 1992, and Joyal C. Street (wife) filed for divorce in 1993.

During the marriage, husband supported wife and their children by working as a carpet installer. Until 1990, husband ran a carpet installation business. The business' primary source of revenue was from subcontracts with L & L Carpet Company, a business operated by Eugene Lane, a long time friend of husband. Because husband's age and prior injuries had impaired his ability to install carpet, husband expanded his business in 1990 to include the retail sale of carpeting materials.

Although husband was a skilled carpet installer, the record shows that he was not an adept businessman. The new retail business was hindered by excessive debt and a frequently overdrawn checking account. At the end of 1994, current liabilities exceeded current assets by at least $36,000. By 1995, the business owed federal taxes for 1992, 1993, and 1994, had borrowed $18,000 from husband's relatives, and was compelled by suppliers to pay for shipments C.O.D. Although the gross revenue of husband's business averaged over one million dollars per year during the four full years of operation preceding the divorce hearing, husband's net income never exceeded 7.0% of the business' gross revenue.

In January, 1993, husband began seeing a professional counselor, Ms. Zeideberg. After meeting with husband for several months, Ms. Zeideberg noticed that husband had disorganized, unfocused thought patterns and regularly encountered difficulty maintaining a structured discussion during their appointments. Ms. Zeideberg, whose practice primarily involves working with children affected by Attention Deficit Disorder (ADD), suspected that husband might also suffer from ADD. Because Ms. Zeideberg knew that one tool used to diagnose ADD is to test a patient for a positive response to the drug Ritalin, she arranged for husband to take a low, test dosage of the drug. Ms. Zeideberg's suspicions were confirmed when husband responded well to the drug. She then referred husband to a clinical psychologist for a more complete evaluation in May, 1994. Husband did not pursue a diagnosis at that time but continued taking his test dosage until at least May, 1995.

On April 24, 25, and May 2, 1995, the trial court held a hearing on equitable distribution, spousal support and child support and announced its ruling from the bench on May 18. The trial court determined that husband's carpet installation business had a fair market value of $160,000 and that husband drew $6,139 per month from his business and an additional $1,500 per month from "side jobs." The trial court awarded the business to husband, the marital home to wife, and ordered husband to pay $2,300 per month in spousal support and $921 per month in child support.

In the months following the trial court's ruling, husband's emotional stability and his capacity to function deteriorated. At the suggestion of Mr. Lane, husband decided that the financial problems plaguing husband's business were insurmountable, and he closed his business on June 16. Although husband took employment with Mr. Lane's business at a salary of $2,500 per month, he was ineffective due to his inability to focus and his frequent emotional breakdowns at work. Husband consulted a clinical psychologist, Dr. Eist, in August, 1995 and was diagnosed as suffering from both severe ADD and chronic depression. In September, another psychologist, Dr. Dixon, concluded that husband suffered from anxiety disorder as well.

Husband filed a petition for modification of spousal and child support on August 18, alleging a material change in both his mental health and the condition of his business. At the hearing on September 27, the only witnesses who testified about the purported change in husband's mental condition were Ms. Zeideberg and Dr. Dixon. Ms. Zeideberg testified that ADD is an involuntary, neurological disorder that impairs a person's ability to process information and may be exacerbated by stress. Ms. Zeideberg said that based on her observations of husband, which included over 100 appointments, he "seemed to get better" before the hearing in April and May, 1995. However, Ms. Zeideberg testified that husband's mental condition worsened after the trial court announced its ruling on May 18:

Q. Okay. When you saw Mr. Street after May 19th, would you compare his behavior then to his behavior prior to the trial, prior to that time?

A. When I saw him very shortly after the trial in May, he was extremely disorganized, unable to focus on anything other than what had happened in the trial, attempts to discuss anything else met with cycling--with Mr. Street cycling back to simply his extreme distress about the trial, the outcome of that trial.

Q. Did he show symptoms of any other psychological problem other than attention deficit disorder?

A. After the trial, he also seemed significantly depressed and I believe very shortly after that he did indeed go for a full evaluation and was placed on medication for depression as well as for attention deficit disorder.

Q. In your opinion, did the man who appeared before you shortly after the trial, have the wherewithal to make business-type decisions?

* * * * * *

A. No.... And after the trial, he was not even able to focus enough to talk about how to deal with the problems that existed at that time in the business. We had been able to have a discussion prior to the trial, although again, he had not always followed through on things, but after the trial, I couldn't get him settled down enough to even say, okay, if you are having trouble collecting on this particular account, who can you work with, what could you do, in very concrete terms, about dealing with this, and he was just so distressed that he wasn't even able to focus and work on a structured kind of plan.

Dr. Dixon was the only other witness to testify on the issue of husband's mental health following the divorce. She testified that her first meeting with husband was on September 7, 1995, three weeks before the modification hearing. She testified that Dr. Eist had diagnosed husband with ADD and chronic depression in August and that she had concluded that husband suffered from anxiety disorder as well. Dr. Dixon 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 specifically whether specific stresses in husband's life had exacerbated husband's ADD, Dr. Dixon offered some speculative answers, but she added "there is a lot I don't know here because I am new in this picture." Then husband's counsel asked for Dr. Dixon's opinion on 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 responded that based upon her observations of other patients whom she had treated she believed that "these behaviors have been with [Mr. Street] forever." When wife's counsel asked Dr. Dixon during cross-examination whether husband's life was more stressful before or after he separated from wife, Dr. Dixon said, "I can't--I have no idea."

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. The trial court reasoned from the bench that Antonelli v. Antonelli, 242 Va. 152, 409 S.E.2d 117 (1991), prohibited a modification of husband's support obligations because husband's reduction in income resulted from the voluntary closure of his business. When husband's counsel argued that husband's closure of his business was involuntary because his exacerbated ADD made him incapable of managing a business, the trial court responded, "I don't necessarily buy the exacerbated ADD."

II.

MODIFICATION OF SPOUSAL AND CHILD SUPPORT

Husband argues that the trial court erred when it concluded that there was no material change in husband's mental health. We agree.

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. Yohay v. Ryan, 4 Va.App. 559, 566, 359 S.E.2d 320, 324 (1987) (child support); Furr v. Furr, 13 Va.App. 479, 481, 413 S.E.2d 72, 73 (1992) (spousal support). The material change "must bear upon the financial needs of the dependent spouse or the ability...