COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Wi llis and Senior Judge Cole Argued at Rich mond, Virginia

KRISHAN RANA MEMORANDUM OPINION * BY v. Record No. 1808-99-2 JU DGE JAMES W. BENTON, JR. APRIL 11, 2000 SHAKUNTLA RANA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY William R. Sh elton, Judge Lawrence D. Diehl for appellant. Mary Burkey Owens (I shnelia I. Gubb; Cowen & Owen, on brief), for appellee.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Krishan Rana appeal s the trial judg e's denial of his motion to modify spousal support paid to Shakuntla Rana, hi s former wife. The husband conten ds the trial judg e erred by failin g to find (1) that a material change in ci rcumstances resu lted from his increased debt and the wife's lessened need for support, (2) that the wife's employment following the divo rce and su bsequent unemployment was a mate rial change of circum stances, (3) that the wife was voluntarily unemployed, an d (4) that the evidence contained suff icient proof to impute in come to the wife. Both parties seek attorney's fees and costs for th is appeal. For the reasons that follow, we affirm the tria l judge's decision.I. As the party seekin g to modify spousal support, the husband bore the burden "to prove both a material ch ange in ci rcumstances and that this change warrants a modifica tion of support." Schoenwetter v. Schoenwetter , 8 Va. App. 601, 60 5, 383 S.E.2d 28, 30 (1989); see also Code § 20-109. "[T]he 'circumsta nces' which make 'proper' an in crease, reductio n or cessation of spousal support under Code § 20-109 are financia l and economic ones." Hollowell v. Hollowell , 6 Va. App. 417, 41 9, 369 S.E.2d 451, 452-53 (1988). "We wi ll not disturb the trial judge's decision where it is based on an ore tenus hearing, unless it is 'plainly wrong or without eviden ce to supp ort it.'" Furr v. Furr , 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992) (citation omitted).

II. The husband cont ends that seve ral changes occurring after the entry of the divorc e decree were mate rial changes in circumstances. The husband testif ied that his cu rrent expenses greatly exceeded his expenses at the time of the divorce and that he had a monthly defici t of $2,745. The hu sband also testified that he had almost no debt at th e time of the di vorce and now had $50,000 in debt. Th e husband presen ted evidence that wife's current expenses were $2,326 and that her expenses at the time of the divorce were $3,663. Although the husband testif ied that his sp ousal support payments increased his debt, he admitted on cross-examin ation that

- 2 -his debts included attorney's fees and other costs. The husband also admitted that his claimed expens es included costs attributable to his recently purchased ne w home and his current spouse, who is not em ployed outside their home. Although he claimed as an ex pense a monthly pa yment of $400 to a retirement account, he admi tted that the pa yment was voluntar y. The husband owns four pieces of rental property and te stified at the hearing that they produced no income. An April 19 99 loan application, however, showed that he claimed $2,500 in monthly income from those properti es. The husband al so admitted that he overstated several of the loan amounts he was obliga ted to repay. The evidence further proved that although the hu sband's income increased from approxim ately $58,000 to $68,000, he had listed his income as $62,458. The wife admitted that her monthly expenses had decreased since the time of the divorce decr ee. She received the marital residence under th e terms of the decree. She testified, however, that because the husban d was continuall y late in paying spousal support, she incurred la te payments and additi onal interest on the mortgage throughout 19 97 and 1998. Concer ned that the lender would foreclose on the property, th e wife sold he r home. That evidence was uncontes ted. After th e sale, the wi fe's housing expenses decreased from $1,708 for a mortgage and $465 for utilities to $510 for rent and $2 00 for utilities.

- 3 -Husband contends that in addition to chan ges in their income and expenses, th e evidence proved the wife was voluntarily unemployed. The evid ence established that the wife was not employed at the time of the divo rce but began work ing at a retail store shortly afte r the decree was entered. She test ified that she worked because she had no money for food when the husband's payments were late. She continued to work at the store for approximately two and one-half years and earned $5.75 an hour. Although the wife ad mitted that she coul d understand simple English, she testified that language difficul ties required her to call her manager to reso lve problems wi th customers. At the time of the hearing, howe ver, the wife was no t working an d had not worked since she relo cated to Blacksburg in December 1998 following the sale of her home. The wife's evidence also established th at because husband refused to allow her to drive during the marriage, sh e cannot drive and must rely upon public tr ansportation or her sons. After she sold her house, she moved to Blacksburg to be near one of her sons. Although the husband's expert testified th at wife was immediately empl oyable at $6.00 an hour in entry level positions, he admitted that he had not consider ed wife's level of English comprehension, the prox imity of jobs to publ ic transpor tation, or that she could not ap ply for jobs until sh e replaced her green card.

- 4 -III. The trial judge fo und that husband fa iled to prove "a material change in ci rcumstances whic h would warrant a reduction in spousal suppor t." Although we agree with the husband that the evidence proved changes in the parties' econ omic circumstances,

see Hollowell , 6 Va. App. at 419, 369 S.E.2d at 45 2, we cannot say that the trial judge erred in finding that the changes did not warrant a modi fication in support. "[W]hen a materi al change of circumst ances has oc curred, the trial court must determine whet her the changed circumstances warrant or justify a change in the amou nt of support." Blackburn v. Michael , 30 Va. App. 95, 103, 515 S. E.2d 780, 784 (1999). Not every material change of circumstance s warrants a modification of support. See id. The moving party in a petition for modification of support is required . . . to prove both a material change in circumstances and that such change justifies an alteration in the amount of support. A material change in circumstances, standing alone, does not provide a basis for the trial court to modify its support decree. A modification is appropriate only after the court has considered the material change in circumstances in relation to . . . the present circumstances of both parties . . . . Thus, in a petition for reduction of support, the trial court must assess whether the requested reduction, based on a material change in circumstances, is justified in light of the overall circumstances of both parties . . . .

- 5 -Yohay v. Ryan , 4 Va. App. 559, 566, 359 S.E.2d 320, 324 (1987);

see also Furr , 13 Va. App. at 481, 413 S.E.2d at 73. The evidence proved that the husband's income had increased; however, it raised doubt about the extent of the husband's actual debts. Indeed, the evidence concerning his claim of increased expenses was highly problematic. Furthermore, the evidence proved that as a result of the husband's tardy payment of spousal support, the wife's circumstances drastically changed. She testified that she had to work in order to buy food and that she had to sell her home to avoid foreclosure. The trial judge could have found that the wife's move to Blacksburg was a consequence of this disruption and of her need to be in a place where she could rely upon her son for her transportation needs. Furthermore, the evidence would support a finding that the wife's initial employment was caused by the need to have income when the husband's payments were tardy and that her subsequent unemployment was not voluntary. "Whether a person is voluntarily unemployed or underemployed is a factual dete rmination." Blackburn , 30 Va. App. at 102, 515 S.E.2d at 784. Based upon the evidence in the record, we find no error in the trial judge's finding that the husband failed to prove "a material change in circumstances which would warrant a reduction in spousal support." In view of the failure of the evidence to

- 6 -prove the wife was voluntarily unemployed, we need not address the issue of imputation of income.

IV. Both the husband and the wife request attorney's fees and costs incurred in this appeal. See O'Loughlin v. O'Loughlin , 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). We deny both requests. Accordingly, we affirm the trial judge's decision. Affirmed

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