COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Senior Judge Cole 

Argued at Richmond, Virginia 

RICHARD N. SMULL 

 MEMORANDUM OPINION* BY 

v. Record No. 1308-98-4 JUDGE JERE M. H. WILLIS, JR. 

 JULY 20, 1999 

KAREN W. SMULL 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

M. Langhorne Keith, Judge 

 David L. Duff (David L. Duff, P.C., on 

brief), for appellant. 

 Stefan C. Long (Stefan C. Long, P.C., on 

brief), for appellee. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication.

 On appeal from the denial of his motion to reduce his 

spousal support obligation, Richard N. Smull contends that the 

trial court erred (1) in requiring him to prove that no jobs 

were available in his career field, and (2) in awarding to Karen 

W. Smull all of her costs and attorney's fees. We affirm the 

judgment of the trial court. 

I. MOTION FOR SPOUSAL SUPPORT REDUCTION 

 Richard and Karen Smull were divorced on March 7, 1988. On 

March 12, 1998, Richard moved for a reduction in his spousal 

support obligation, asserting that he had experienced a material 

change in circumstances warranting a reduction in the support 
required by the divorce decree. The trial court denied the 

reduction and denied Richard's motion for reconsideration. 

 A party seeking to modify spousal 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). 

As we further noted in Hammers [v. Hammers, 

216 Va. 30, 216 S.E.2d 20 (1975)], a party 

seeking a reduction in support payments has 

additional burdens: "[H]e must make a full 

and clear disclosure relating to his ability 

to pay. He must also show that his lack of 

ability to pay is not due to his own 

voluntary act or because of his neglect." 

Edwards v. Lowery, 232 Va. 110, 112-13, 348 S.E.2d 259, 260 

(1986) (citation omitted). 

 "When a trial court hears evidence ore tenus, its findings 

are entitled to the same weight of a jury verdict, and will not 

be disturbed on appeal unless plainly wrong or without evidence 

to support them." Floyd v. Floyd, 1 Va. App. 42, 45, 333 S.E.2d 

364, 366 (1985). 

 After retiring from the Air Force just before the divorce, 

Richard found employment at Systems Planning Corporation 

("SPC"), where his primary duty was to act as a liaison to the 

Taiwan Economic Relations Office. After a downturn in the Asian 

economy, the Taiwanese Office modified its contract with SPC 

from a retainer to an "as needed" basis. As a result, Richard's 

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hours at SPC, and his income from that organization, were 

greatly reduced. 

Around the same time, Richard began working as a wine 

wholesaler in a business managed by his current wife. When his 

hours at SPC were reduced, he began spending more time at the 

wholesale wine venture, which produced much less income. The 

trial court found that Richard had made no effort to secure 

employment other than by SPC in his professional field and that 

his decision to devote his time to the lower paying wine 

wholesaling enterprise was voluntary. Thus, his reduction in 

income did not require a corresponding reduction in his spousal 

support obligation. See Dept. of Social Services v. Ewing, 22 

Va. App. 466, 470-73, 470 S.E.2d 608, 610-13 (1996). 

Richard argues that the trial court erroneously required 

him to prove that no jobs were available within his professional 

field. The record does not support this contention. At the 

hearing, Richard produced no evidence that he had sought work in 

his field. He produced only the testimony of his supervisor at 

SPC, who stated that no more work was available for Richard at 

that firm. Richard made no attempt to find work in his 

professional field beyond a single employer, SPC. The trial 

court did not err in requiring proof of a greater effort. 

II. COSTS AND FEES 

 An award of attorney's fees and costs is a matter submitted 

to the sound discretion of the trial court and will be overruled 

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on appeal only for an abuse of discretion. See Graves v. 

Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). "We 

have said that 'the key to a proper award of counsel fees . . . 

[is] reasonableness under all of the circumstances revealed by 

the record.'" Westbrook v. Westbrook, 5 Va. App. 446, 458, 364 

S.E.2d 523, 530 (1988). 

Richard initiated these proceedings by his motion to reduce 

spousal support. The trial court denied that motion. The trial 

court took into account the relative financial circumstances of 

the parties and determined that Richard should pay Karen's fees 

and costs. Sufficient evidence in the record supports this 

decision. 

 The judgment of the trial court is affirmed. 

Affirmed. 

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