COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges AtLee and Friedman

Argued at Fredericksburg, Virginia

FRANK HOWARD

MEMORANDUM OPINION* BY

v. Record No. 0819-22-4 CHIEF JUDGE MARLA GRAFF DECKER

MARCH 14, 2023

SUZANNE HOWARD

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY

Jeanette A. Irby, Judge

Carla F. Ward (Law Office of Carla F. Ward PLLC, on brief), for 

appellant.

Craig E. White (Sevila, Saunders, Huddleston & White, PC, on 

brief), for appellee.

Frank Howard appeals the circuit court’s order denying his motion to modify spousal 

support. He argues that the circuit court erred by denying his motion to continue the hearing and by 

excluding testimony about the circumstances surrounding the formation of the parties’ separation

agreement. He further contends that the court erred by finding there had not been a material change 

in circumstances warranting modification of the spousal support award. For the reasons that 

follow, we affirm the decision of the circuit court. We also deny the wife’s request for attorney 

fees and costs incurred on appeal.

* This opinion is not designated for publication. See Code § 17.1 413.

UNPUBLISHED
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BACKGROUND1

On February 27, 2019, the circuit court entered a final decree of divorce awarding Suzanne 

Howard a divorce from her husband. The parties signed a separation and property settlement 

agreement in November 2018, under which the husband agreed to pay her $2,000 per month for 

spousal support. They agreed that the spousal support award was modifiable by a court of 

competent jurisdiction in the event of “a material change in either party’s financial circumstances 

that justifies a modification to the amount due for spousal support.” The final divorce decree 

affirmed, ratified, and incorporated the agreement. 

In October 2019, a vehicle hit the husband as he walked in the crosswalk across a ten-lane

highway. As a result of the accident, he sustained significant injuries to his right leg, left arm, and 

spine. Two weeks later, he filed a motion to modify the spousal support award. The husband 

alleged he was “unable to work or produce an income” and “unable to fulfill his spousal support 

obligation as currently ordered.” 

The circuit court entered a pretrial scheduling order setting the hearing on the motion for

August 31, 2021. The order also directed the parties to file their witness and exhibit lists 15 days 

beforehand, by August 16, 2021, and stated that “[a]ny exhibit or witness not so identified and filed 

will not be received in evidence.” The husband, who was represented by counsel, belatedly filed his 

witness and exhibit list on August 19, 2021, and the wife objected to the untimely filing. 

On August 25, 2021, the husband was hospitalized due to a health event. Two days later, he 

filed an emergency motion to continue the hearing on the basis that he could not proceed on August 

31, 2021. By order of August 30, 2021, the court granted the husband’s motion and rescheduled the 

hearing for May 3, 2022. Noting that the filing deadlines for exhibit notebooks, exhibit lists, and 

1 We view the evidence in the light most favorable to the wife, as the prevailing party 

below. See Rainey v. Rainey, 74 Va. App. 359, 368 n.1 (2022).
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witness lists had passed before the husband’s hospitalization, the court refused to modify or extend 

those deadlines. 

On the morning of the rescheduled hearing, the husband filed a motion to vacate the circuit 

court’s August 30, 2021 order and continue the hearing again, arguing that the order precluded him 

from presenting new evidence of the parties’ current circumstances. After considering the

husband’s motion and the arguments of the parties, the court “vacat[ed] the portion of the order 

which would not allow [it] to hear present day evidence” but did not continue the hearing. In 

denying the husband’s continuance request, the court noted that the parties could present evidence 

of their current income and expenses. The husband noted his ongoing objection to proceeding with 

the hearing. 

The husband testified about the injuries he sustained as a result of his 2019 accident. He 

explained that he could no longer write with his dominant hand and needed to use a wheelchair. He

elaborated that he had undergone 17 operations and was hospitalized as recently as the week before 

the hearing. 

The husband stated that he was in his mid-sixties and unable to work after being struck by a 

car. He explained that before the accident, he was a self-employed mortgage broker. According to 

the husband, through his business, he “wasn’t making a lot of money, but [he] was making 

money.” He represented to the court that his annual income in 2018 was approximately $5,300.2 

He further testified that his income went “downhill” following his 2019 accident. He also said that 

he paid his spousal support obligation from his half of the proceeds from the sale of the marital 

home. He added that his portion of the proceeds had been exhausted at the time of the hearing. 

2 The husband’s gross revenue from his two companies was $163,203 in 2018. His 2018 

tax returns show that he deducted $157,672 from his gross revenue and reported his 2018

business income as $5,531. The husband did not testify about the gross revenue from his 

companies in 2018 or any other year.
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According to the husband, he tried to continue working as a self-employed mortgage broker 

following his accident but did not earn any income. He represented that he had decided to retire, 

had “been deemed a hundred percent disabled” by the Social Security Administration, and received 

$2,513 per month in Social Security benefits. In addition, he explained that he sought to terminate 

the spousal support award “based on [his] physical condition, age, and . . . inability to work . . . as of 

October 2019.” 

The husband attempted to testify about why he had agreed to pay the wife $2,000 per month 

in spousal support, and the wife raised several objections. The husband did not challenge the wife’s 

objections or proffer what his testimony would have been. 

During his case-in-chief, the husband called the wife as a witness. When he tried to elicit

testimony regarding her current income, she objected because he had not alleged that her income 

constituted a material change in circumstances in his motion to modify spousal support. After 

seeking clarification about the wife’s objection, the husband’s counsel stated that she would 

“direct[ her] questions in terms of what [the wife] might know about the material change in 

circumstances.” Counsel also noted that she “assume[d] that if the [c]ourt d[id] make a finding [of 

a] material change in circumstances,” they would then address the issue of the wife’s income. The 

husband did not proffer what the wife’s testimony about her income would have been.

At the end of the husband’s case-in-chief, the wife moved to strike on the basis that he failed 

to prove a material change in circumstances because his income actually increased after the parties 

entered into the separation agreement. The wife argued that the husband’s annual income in 2018

was approximately $5,600 and that his present annual income from his Social Security benefits was 

approximately $30,156. The husband responded that his 2018 income was not the basis of the

agreed amount of spousal support because “[i]t was clearly his intention that he was going to be able 

to pay [the award] out of the proceeds of his business.” He reasoned that therefore his 2018 income 
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was irrelevant because “he had an asset,” presumably his proceeds from the sale of the marital 

home, that he could use to pay spousal support. The husband further argued that he “had a down 

year in 2018” and that his 2018 income should not be used “as a standard [that] he is actually doing 

way better now.” 

The circuit court granted the wife’s motion to strike. The court noted that it was undisputed 

that the husband was “unable to work.” Nonetheless, the circuit court found the record proved that 

his income had increased from the time of the parties’ separation agreement. It found that, even if 

the husband’s income was unusually low in 2018, the only income evidence was that he “ma[d]e 

more money than what he had at the time” the separation agreement was signed. The court noted it 

was the husband’s burden to establish what his income was. In addition, the court awarded the wife 

$9,915.95 in attorney fees. 

ANALYSIS

On appeal, the husband argues that the circuit court erred by denying his motion to continue 

the hearing and excluding testimony about the parties’ separation agreement. He further contends 

that the court erred by finding that no material change in circumstances warranting a modification of 

the spousal support award had occurred. The wife disagrees and requests attorney fees and costs 

incurred on appeal. 

I. Continuance Motion

The husband argues that the circuit court abused its discretion by refusing his request for a 

continuance. He asked for the continuance on the morning of the May 2022 hearing in conjunction 

with his motion to vacate the court’s August 30, 2021 order. The court did not continue the hearing

but vacated “the portion” of the August 30, 2021 order that “would not allow [it] to hear present day 

evidence.” The husband suggests that the August 30, 2021 order precluded him from introducing 

“full documentary and testamentary evidence of his deteriorating medical condition and current 
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financial state.” He argues that, after the court vacated the order, it should have “continu[ed] the 

matter to another date and enter[ed] a new scheduling order so both sides could supplement their 

discovery and present their evidence.” 

“The decision of whether to grant a continuance is committed to the discretion of the 

circuit court.” Shah v. Shah, 70 Va. App. 588, 593 (2019). That court’s ruling on the motion 

“will be rejected on appeal only upon a showing of abuse of discretion and resulting prejudice.” 

Va. Fuel Corp. v. Lambert Coal Co., 291 Va. 89, 104-05 (2016) (quoting Haugen v. Shenandoah 

Valley Dep’t of Soc. Servs., 274 Va. 27, 34 (2007)). “The absence of one renders 

inconsequential the presence of the other.” Cooper v. Commonwealth, 54 Va. App. 558, 565 

(2009) (quoting Bolden v. Commonwealth, 49 Va. App. 285, 290 (2007), aff’d, 275 Va. 144 

(2008)). Additionally, prejudice “may not be presumed; it must appear from the record.” Id.

(quoting Bolden, 49 Va. App. at 290).

A fundamental precursor to appellate review is an adequate proffer. See Graham v. 

Cook, 278 Va. 233, 249 (2009). A proffer is necessary to permit the appellate court to determine 

whether the denial of a continuance requested in order to obtain evidence was an abuse of 

discretion and prejudiced the complaining party. An adequate proffer creates a record of “what 

the [evidence] would have been.” Commonwealth Transp. Comm’r v. Target Corp., 274 Va. 

341, 348 (2007) (quoting Holles v. Sunrise Terrace, Inc., 257 Va. 131, 135 (1999)). It is not 

sufficient for a party to proffer “merely his theory of the case” rather than the substance of the 

suggested excluded evidence. Ray v. Commonwealth, 55 Va. App. 647, 650 (2010) (quoting 

Tynes v. Commonwealth, 49 Va. App. 17, 21 (2006)). In short, “[a]bsent a proffer showing 

‘harm was done,’” the appellate court is “‘forbidden [from] consider[ing] the question.’” Id. at 

650 (quoting Scott v. Commonwealth, 191 Va. 73, 78-79 (1950)).
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Here, when the husband sought a continuance, he did not proffer to the circuit court the 

specific evidence that he claims he was unable to present. His counsel merely stated the desire to 

“create new exhibits” addressing “his deteriorating medical condition and current financial 

state,” supplementing the discovery between the parties. The circuit court vacated part of the 

August 2021 order so that the parties could introduce “present day evidence.” The court allowed 

the husband to testify about his income as of the date of the hearing. Without a proffer of the 

allegedly excluded evidence, the record does not show that the husband was prejudiced by the 

absence of the unspecified evidence.3 Accordingly, we affirm on this issue. 

II. Exclusion of Testimony

The husband contends that the circuit court erred by excluding testimony about the “factors 

and circumstances leading to [the] [a]greement” regarding spousal support. He believes the court 

erred by not admitting his testimony about how the parties reached the original agreement and not 

allowing him to question the wife about her income in 2019. After the circuit court sustained the 

wife’s relevance objections, however, the husband did not proffer the excluded testimony for the 

record. 

Similar to the situation with a continuance, “[w]hen evidence is excluded by the court, the 

aggrieved party must make a proper proffer of the excluded testimony to preserve the ruling for 

appellate review.” Klein v. Klein, 11 Va. App. 155, 160 (1990); accord Galumbeck v. Lopez, 283 

Va. 500, 507 (2012). “When an appellant claims a . . . court abused its discretion in excluding 

evidence, we cannot competently determine error—much less reversible error—without ‘a 

3 Although the husband argues that he was prejudiced by the circuit court’s August 30, 

2021 order, he does not identify any specific prejudice he suffered by proceeding with the 

hearing on May 3, 2022. Instead, he simply concludes that he had suffered “extreme prejudice” 

and that the denial of his continuance request was “deeply prejudicial.” See, e.g., Norfolk S. Ry. 

Co. v. Bowles, 261 Va. 21, 29 (2001) (noting that the party did not posit any “specific prejudice” 

resulting from the denial of the motion to continue). 
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proper showing of what that testimony would have been.’” Ray, 55 Va. App. at 649 (quoting 

Tynes, 49 Va. App. at 21).

The husband did not proffer what the presumable testimony of his witnesses would have 

been and consequently does not provide this Court with a basis to determine whether the circuit 

court properly excluded the testimony. The failure to proffer precludes consideration of this

particular claim. Without a proffer of the expected testimony, this Court simply cannot

determine whether any such evidence was relevant and admissible. Therefore, we do not 

consider this assignment of error. See Klein, 11 Va. App. at 160. 

III. Material Change in Circumstances

The husband contends that the circuit court erred by finding that no material change in

circumstances warranting modification of its spousal support award had occurred. Specifically, 

he believes that the court erroneously considered only his income and no other factors, such as 

the depletion of his assets and his inability to continue working. The husband argues that his 

injuries from the debilitating accident constituted “a totally unexpected and substantial material 

change in circumstances affecting his ability to pay spousal support.” In support, he suggests

that his injuries “were so severe they affected every aspect of his life.” 

In the separation and property settlement agreement, the parties provided that the spousal 

support award was modifiable in the event of “a material change in either party’s financial 

circumstances that justifies a modification to the amount due for spousal support.” Generally, 

following an award of spousal support, a circuit court may modify the award if the circumstances 

merit such a change. Code § 20-109. As expressly provided in the agreement here, “[t]he 

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.” Nielsen v. Nielsen, 73 

Va. App. 370, 379 (2021) (quoting Dailey v. Dailey, 59 Va. App. 734, 742-43 (2012)). It is well 
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established that “[w]hether there has been a material change of circumstances is a factual 

finding.” Id. at 381 (quoting Barrs v. Barrs, 45 Va. App. 500, 507 (2005)). An appellate court 

will not set aside a circuit court’s factual findings unless “plainly wrong or without evidence to 

support [them].” Hughes v. Hughes, 33 Va. App. 141, 146 (2000) (quoting Farley v. Farley, 9 

Va. App. 326, 328 (1990)).

To constitute a material change in circumstances, a “change ‘must bear upon the financial 

needs of the dependent spouse or the ability of the supporting spouse to pay.’” Barnes v. Barnes, 

64 Va. App. 22, 29 (2014) (quoting Moreno v. Moreno, 24 Va. App. 190, 195 (1997)). In other 

words, it “must relate to either the need for support or the ability to pay.” Barton v. Barton, 31 

Va. App. 175, 178 (1999). In addition, to merit a modification or termination of the spousal 

support award, “[t]he material change in circumstances must have occurred after the most recent 

judicial review of the award.” Nielsen, 73 Va. App. at 380 (quoting Barrs, 45 Va. App. at 506). 

Here, the circuit court correctly observed that the husband bore the burden to prove a 

material change in circumstances that warranted a change of the spousal support award. See

Nielsen, 73 Va. App. at 379. Consistent with the husband’s pleading, the court limited

consideration of the case to the husband’s ability to pay based on his income. Although the court 

acknowledged the severity of the husband’s injuries and his inability to work, it found, based on 

the evidence presented, that those factors did not actually reduce his income. Consistent with

this conclusion, the court was unpersuaded that the accident negatively impacted the husband’s

ability to pay. 

We recognize that the husband argues, as he did below, that the parties’ separation 

agreement was not based on his income and the circuit court should have considered other factors 

such as his depletion of assets. However, the husband’s written motion to modify support specified 

only his injuries and resulting inability “to work or produce an income” as bases for the motion. A 
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circuit court can “base its judgment or decree” only on “facts . . . alleged” or rights that have “been 

pleaded and claimed.”4Stark v. Dinarany, 73 Va. App. 733, 746 (2021) (quoting Ted Lansing 

Supply Co. v. Royal Aluminum & Constr. Corp., 221 Va. 1139, 1141 (1981)). In other words, the 

husband, in his motion, specifically pled a material change in circumstances based only on his 

physical condition and inability to work. It was therefore appropriate for the circuit court to limit its 

consideration of the case to the factors the husband relied on in his pleading. We too must review 

this case under the framework set out in the husband’s motion to modify spousal support. 

Consequently, the sole question for this Court to resolve is whether the circuit court erred in finding 

that the husband failed to prove that his injuries constituted a material change in circumstances since 

the original award that reduced his ability to pay. 

The circuit court found that, even if it assumed that the husband’s 2018 income was 

anomalously low, he had introduced no income evidence except that he “ma[d]e more money” 

following the accident “than what he had [made] at the time the agreement was signed.” The 

court’s finding is supported by the husband’s testimony that his income was approximately $5,300 

for the year in which the parties entered into their separation agreement. Although his gross 

revenue that year was $163,203, he deducted $157,672 from that amount to net an income of around 

$5,300. In contrast, the husband testified that he received $30,156 a year from Social Security at the 

time of the instant hearing. 

Based on this evidence, the court found that the husband’s income was higher at the time of 

the hearing than when the parties entered into the separation agreement. This finding is supported 

4

“The basis of every right of recovery under our system of jurisprudence is a pleading 

setting forth facts warranting the granting of the relief sought.” Ted Lansing Supply Co. v. Royal 

Aluminum & Constr. Corp., 221 Va. 1139, 1141 (1981) (quoting Potts v. Mathieson Alkali 

Works, 165 Va. 196, 207 (1935)). This rule protects “[e]very litigant[’s] . . . entitle[ment] to be 

told by his adversary in plain and explicit language . . . his ground of complaint or defense.” Id.

(quoting Potts, 165 Va. at 207). 
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by the record. See Hughes, 33 Va. App. at 146. Because the evidence established that the 

husband’s income had actually increased after the accident, he failed to prove to the satisfaction of 

the fact finder that his inability to work constituted a material change in circumstances affecting his 

ability to pay his spousal support obligation as compared to his ability at the time he agreed to 

the award. See Barton, 31 Va. App. at 177-78. Despite any sympathy engendered by the 

husband’s personal situation, the circuit court was not plainly wrong in concluding that he failed to 

prove a material change in circumstances warranting a change in the spousal support award. 

IV. Attorney Fees and Costs on Appeal

The wife seeks an award of attorney fees and costs on appeal.

5

 Under Rule 5A:30, in 

specified cases in which attorney fees and costs are recoverable under Title 20 of the Code of 

Virginia, the Court of Appeals may award some or all of the fees and costs requested. Whether to 

award fees is discretionary. See Rule 5A:30; Alwan v. Alwan, 70 Va. App. 599, 613 (2019). In 

deciding whether to make such an award, the Court may consider factors including whether the 

requesting party has prevailed, whether the appeal “lacked substantial merit” or was frivolous, or

whether other reasons support an award of attorney fees and costs. See Rule 5A:30; accord 

Brandau v. Brandau, 52 Va. App. 632, 642 (2008); O’Loughlin v. O’Loughlin, 23 Va. App. 690, 

695 (1996). Rule 5A:30(b) allows this Court to “consider all the equities of the case.” 

The husband’s claims ultimately lack merit, but at least one is not frivolous. Considering all 

the equities of the case, the other factors in Rule 5A:30, and the relevant case law, we deny the 

wife’s request for appellate attorney fees and costs. Accordingly, “[e]ach party shall bear its own 

fees and costs.” See Rainey v. Rainey, 74 Va. App. 359, 391 (2022).

5 The separation agreement “expressly reserve[s]” the issue of attorney fees for the Court. 

See generally Allen v. Allen, 66 Va. App. 586, 603 (2016) (considering the parties’ post-nuptial 

agreement to determine whether to award appellate attorney fees). 
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CONCLUSION

The circuit court did not abuse its discretion in denying the eleventh-hour motion to 

continue the hearing. We do not consider the husband’s challenge to the exclusion of certain 

testimony because the expected testimony was not proffered for the record. In addition, the 

record supports the circuit court’s conclusion that the husband failed to establish a material 

change in circumstances warranting a change in the spousal support award. For these reasons, the 

circuit court’s ruling is affirmed. We also deny the wife’s request for attorney fees and costs.

Affirmed.