COURT OF APPEALS OF VIRGINIA

Present: Judg es Elder, Felton an d Senior Judge Willis

JOSEPH E. BECK, III MEMORANDUM OPINION * v. Record No. 17 24-02-2 PER CURIAM AUGUST 26, 2003 STACEY WESTWOOD, F/K/A STACEY A. BECK

FROM THE CIRCUIT COUR T OF HANOVER COUNTY John R. Alde rman, Judge (Joseph E. Beck, III, pro se , on briefs). (Barbara S. Picard; Cawthorn, Pica rd & Rowe, P.C., on brief), for appellee.

Joseph E. Beck , III, (husband) appeals an orde r of the trial court denying his motion for a reduction and/or termination in spousal suppor t. Husband argu es the trial cour t's ruling was plainly wrong and without eviden ce to support it. Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affi rm the decision of the tria l court. See Rule 5A:27. BACKGROUND The parties' final divorce de cree was entered on September 21, 1998. On Ap ril 12, 1999, the trial court en tered a decree addressing the equita ble distribution of the parties' marital

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.assets and child and sp ousal support. In that orde r, the trial court did not awar d wife spousal su pport but provid ed that wife would receive a re servation of spousal supp ort. The or der awarded wife monthly chil d support payments of $1,027.20. Stacey Westwood (wif e) appealed the order to this Court. We issued an unpubl ished opinion remanding the case to the trial court for reconsid eration of the issue of spousal supp ort. In that opinion, we held that the record failed to show that wife had "income suffic ient to meet her needs or to provid e the basic necessities." Beck v. Beck , Record No. 1082-99- 2, slip op. at 18 (Sept. 19, 2000). Wife has a master's degree in business administration, but she did not work outside th e home, and she provided nearly 100% of the non-mone tary contributi ons to rearing the parties' three chil dren, who were all belo w school age at that time. We conclu ded that the trial court erred in not awarding wife spousal support "in an amount at le ast equal to that necessary to pay child care expenses that wo uld enable wife to seek employment." Id. at 19. The op inion also affi rmed the trial court's ruling to impute $50,000 in annu al income to husband because he was voluntar ily under-em ployed. On February 16, 2001, the tr ial court entere d an amended order awarding wi fe spousal suppor t in the amount of $1,400 per month nunc pro tunc to November 1, 1998. The orde r also adjusted husband's monthl y child support payment "to account for the spousal support aw ard." In Septem ber 2001, husband filed a motion - 2 -for reduction and/ or termination of spou sal support based on a material change in his financial circ umstances. On January 31, 20 02, the trial court held a hearing on husband's moti on. The hearing was not transcribe d. The written statement of facts in dicates that wife testified she is not currently seek ing employment and she is attending a university working toward a masters degree in seco ndary education. Wife also stated that she has he ld several part -time jobs sinc e the parties' divorce. Husband testif ied that "shortly af ter" June 1998, he purchased a busine ss for $1,000,000 and th at he starte d a "new company" in 1999 . The new comp any was "put in to involuntary bankruptcy" in Ju ly 2000, and husb and now works for "JSJ Design," a limited liabilit y company owned by his current sp ouse. Husband testified that he did not know the gross income or th e expenses for JSJ Design, ex cept that it has a mont hly "rent" payment of $1,000. The written st atement of facts incl udes no in formation about husband's cu rrent income. However, in his October 8, 2001 deposition, hu sband stated that he was not earnin g a salary from JSJ Design because th e company could not afford to pay him. Husband's spou se works part-tim e for JSJ Design. Husband also testified that he and his current spouse have a mo nthly mortgage payment of $1,500, a mo nthly home equity loan payment of $300 per month, and two car loan or lease payments totali ng $782 per month.

- 3 -The trial court ruled that husband showed no material change in circumstances sufficient to re duce the spousal support award. ANALYSIS A party seeking modification of spousal suppor t pursuant to Code § 20-109, bears th e burden of pr oving "both a ma terial change in circumstances and that this ch ange warrants a modification of support." Schoenwetter v. Schoenwetter , 8 Va. App. 60 1, 605, 383 S.E.2d 28, 30 (1989). "The material change 'must bear upon the financial needs of the dependent spouse or the ability of the supporting spouse to pay.'" Street v. Street , 25 Va. App. 380, 386, 488 S.E.2d 66 5, 668 (1997) ( en banc ) (citation om itted). In addition, "[t] he material change in circumstances must have occurred after the most recent judicial review of the award . . . ." Moreno v. Moreno , 24 Va. App. 190, 19 5, 480 S.E.2d 792, 795 (1997). "The determination whether a spou se is entitled to [a reduction or increase in spousal] support, an d if so how much, is a matter within the di scretion of th e [trial] court and will not be disturbed on appeal unless it is clear th at some in justice has been done." Dukelow v. Dukelow , 2 Va. App. 21, 27, 341 S.E.2d 208, 211 (1986). Husband asserts that the following circ umstances have changed justifying a reduction or term ination of the spousal support award: the chil dren now attend school fu ll-time, thus reducing potential child ca re costs; wife is not se eking employme nt; and he pays 90% of his monthl y income in su pport payments based on the - 4 -imputed income figure of $50,000 per year. He also argues that since wife has only worked several part-t ime jobs and is not seeking employ ment, very little of the spousal suppor t award has been used for chil d care expenses. The evidence showed that wife is attendin g school and is not employed. Although th e children are also now attendin g school, the spousal suppor t award was not es tablished for th e sole purpose of paying for child ca re expenses. Rather, as we stated in the opinion in Record No. 1082-99-2, in awarding spousal support, "'the law's aim is to provide a su m for such period of time as needed to mainta in the spouse in the manner to which the spouse was accustomed during the marriage, balanced against the other spouse's abilit y to pay.'" Beck , Record No. 1082 -99-2, slip op. at 17 (quoting Blank v. Blank , 10 Va. App. 1, 4, 389 S.E.2d 723, 724 (1990)). We held only that wife should receive spousal support "in an amount at least equal to th at necessary to pay child care expenses that would enable wife to seek employment." Id. , slip op. at 19. We did not state that the award wa s solely to be used to pay ch ild care costs. Wife remains unempl oyed, but is working toward an advanced degree. Husband's obli gation to main tain wife in the manner to which she was ac customed during the ma rriage continues. Furthermore, in the February 16, 2001 order, the trial court reduced husban d's child support payment to accoun t for the spousal support award. - 5 -Moreover, husban d has failed to show any material change in his financial ci rcumstances. The spousal supp ort award was established in the Fe bruary 16, 2001 tria l court orde r. The financial circ umstances cited by husband--the ba nkrupt business, the acquisition of a mortgage and home equi ty loan--occurred prior to the award of spousa l support. Fu rthermore, the spousal support award was also based on the imputation of $50,000 in annual income to husband, which was affirmed by this Cour t. Thus, husband's assertion that he receives no in come from JSJ De sign is of no consequence. Accordingly, we find the trial cour t did not abuse its discretion in de nying husband's motion for a re duction and/or termination in sp ousal support. Affirmed.

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