COURT OF APPEALS OF VIRGINIA

Present: Judges Fulton, Causey and Raphael

Argued at Lexington, Virginia

TAMARA T. OAKEY

MEMORANDUM OPINION* BY

v. Record No. 0910-23-3 JUDGE DORIS HENDERSON CAUSEY

SEPTEMBER 17, 2024

DANIEL G. OAKEY

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE

J. Christopher Clemens, Judge

David G. Weaver (Weaver Law Firm, P.C., on briefs), for appellant.

Brian D. West (Sandground, West, Silek, Raminpour & Wright, 

PLC, on brief), for appellee.

Tamara T. Oakey (wife) appeals the circuit court’s order reducing Daniel G. Oakey’s 

(husband) spousal support obligation and setting a defined duration period. On appeal, wife 

argues that the circuit court erred in: (1) converting the duration of the original award of spousal 

support without a material change of circumstances; and (2) modifying the spousal support 

award based upon future events and circumstances that were reasonably contemplated at the time 

of the original award of spousal support. Wife alleges that the circuit court failed to consider her 

potential needs and husband’s potential income when he turned 70. Husband’s 70th birthday

was the date the circuit court ordered the support to terminate. Further, wife challenges the 

circuit court’s determination of her and husband’s income and contends that the circuit court 

erred in denying her request to reserve jurisdiction over the spousal support award. For the

reasons below, we affirm the circuit court’s decision.

* This opinion is not designated for publication. See Code § 17.1-413(A).

UNPUBLISHED
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BACKGROUND

“When reviewing a trial court’s decision on appeal, we view the evidence in the light most 

favorable to the prevailing party, granting it the benefit of any reasonable inferences.” Nielsen v. 

Nielsen, 73 Va. App. 370, 377 (2021) (quoting Congdon v. Congdon, 40 Va. App. 255, 258 (2003)). 

Here, husband is the prevailing party.

Husband and wife divorced in 2013 after 13 years of marriage. Both husband and wife have

children from earlier marriages, but no children were born of this marriage. At the time of their 

divorce, the circuit court determined that husband’s gross adjusted annual income was 

approximately $229,000 and awarded wife $8,500 in monthly spousal support “for an indefinite 

period.” In reaching the original spousal support award, the circuit court discussed the Code 

§ 20-107.1(E) factors and found that during the marriage, the parties had an upper middle-class

lifestyle. The circuit court determined that husband was in good health, outside the “emotional 

stress of his divorce and elevated cholesterol,” while wife had “been diagnosed with fibromyalgia, 

migraine headaches, hypothyroidism, anxiety, and depression.” Wife was also a full-time caregiver 

for her adult son, who had been diagnosed with schizoaffective disorder, and the circuit court found 

that her son’s needs created a “significant obstacle” to wife’s ability to work outside the home. 

After considering wife’s health concerns and her role as her son’s full-time caretaker, the circuit 

court found that wife’s earning capacity was “greatly diminished.” The circuit court noted that

wife’s father also lived with her and concluded that wife had no additional financial resources other 

than $600 her father paid her each month for food and utilities. Husband claimed that wife’s father 

paid her $1,400 monthly. Nevertheless, the circuit court kept “open the possibility of recalibrating 

the support award from time to time as conditions changed” and reserved each party’s right to seek 

modification or termination of the award in light of future material changes. 
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Several years later, at husband’s request, the circuit court reinstated the matter on the docket 

to determine whether a material change of circumstances had occurred since the last support order 

and, if so, whether a modification of spousal support was warranted. Wife moved for an increase in 

spousal support. 

At the support modification hearing in January 2023, husband argued for a reduction or 

termination of his spousal support obligation. He testified that he was the part owner and operator 

of a government affairs and lobbying company. Husband offered evidence demonstrating that his

monthly income had slightly increased since the original support award. Husband acknowledged 

that his tax documents indicated that his total income appeared higher than what he actually took 

home, but explained that, as owner of the company, he was required to reinvest a portion of the total 

income into the firm. Husband also testified that he anticipated he would retire in January 2024, at 

which time he would receive $3,176 per month in Social Security benefits. Husband stated that 

following retirement, he would be unable to continue paying his monthly spousal support obligation 

of $8,500 to wife. 

The circuit court also heard evidence as to how wife’s income had changed since the 

original award. At the time of the hearing, she received monthly Social Security benefits in the 

amount of $1,401. The circuit court considered evidence that wife also received funds from her

father’s company and other sources averaging $34,380 per year. Wife explained that the other 

sources included a monetary gift from her father to help fund her daughter’s wedding, as well as 

insurance proceeds to cover damage to her home. 

Although wife was listed as president and secretary of her father’s company, she denied 

receiving an income from her father’s company. Wife admitted to receiving money from her father, 

but it was only to cover his “household care.” Wife informed the circuit court that her only income 
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was spousal support, plus $1,400 per month in Social Security benefits. Wife also stated that she 

had substantial tax and credit card debt. 

In addition, husband offered evidence that wife was no longer a full-time caregiver for her 

adult son. Husband hired a private investigator, who located wife’s son at his father’s home on 

several occasions. Wife testified that during the pandemic, her son lived with his father, but that 

outside of the summer months, he normally lived with her. 

At the close of the hearing, the circuit court instructed the parties to file written closing 

arguments. Wife requested an increase in spousal support, based on the increase in husband’s 

financial resources. Wife alleged that her own financial resources had not increased enough to 

sufficiently meet her needs. Wife requested “an increase of support to $9,500 per month or leave 

the current support the same, but make it not taxable to [wife] nor deductible by [husband].” 

In response, husband noted that wife received a monthly Social Security benefit as well as 

regular deposits from her father’s company, that averaged $24,926 yearly. Husband also

emphasized that wife’s adult son no longer resided with her or required her full-time care. Husband 

noted that wife’s father lived with her and could contribute more to the monthly expenses of the 

home in which they both lived. Finally, husband stated that he planned to retire in January 2024. 

Considering all these changes in their circumstances, husband requested that the circuit court 

terminate his spousal support obligation. 

After considering the evidence and the parties’ written arguments, the circuit court issued a 

letter opinion, finding a material change of circumstances since the last spousal support order. The 

circuit court found that husband’s salary had increased and averaged $245,000 for the previous 9

years, not including 2022. The circuit court also found that wife received $1,401 in monthly Social 

Security benefits, her adult son no longer resided with her, and she received financial assistance to 

care for her elderly father. 
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Having found a material change of circumstances, the circuit court considered Code 

§ 20-107.1(E) factors to determine whether a modification in spousal support was warranted. The 

circuit court found that the parties were married for 13 years and that husband had been paying 

spousal support for a total of 14 years, which was longer than the marriage. The circuit court stated 

that, at the time, wife was 67 years old, and husband was 66 years old, and that neither was in 

“excellent” health. The circuit court found that wife was still able to assist her father and husband 

had been able to continue working at “a somewhat advanced age.” The circuit court also 

determined that husband “must be allowed to plan for and eventually retire from what is described 

to be a stressful position as a lobbyist.” 

The circuit court held that wife received additional income from her father and other sources

from 2017 to 2021, averaging $34,380 per year. The circuit court held that even if a portion of 

wife’s additional income was “a ‘gift’ from [wife’s] father to defray the costs of [wife’s] daughter’s 

wedding, and another portion w[as] for insurance payments for tree damage, there is significant 

additional income/funds available to” wife. Additionally, since the last support order, wife had 

received $16,812 yearly in Social Security benefits. 

The circuit court noted that the original support award allowed for modification. The circuit 

court concluded that “[b]ased on these changes of circumstances and the age of the parties, it [wa]s

unreasonable for [husband] to continue to pay $8,500.00 per month in spousal support.” The circuit 

court also held that considering the length of the marriage, the age of the parties, and how long 

husband had paid spousal support to wife already, “lowering the spousal support [wa]s appropriate 

and that a defined ending of the support is further appropriate.” The circuit court reduced husband’s 

monthly support obligation, as of April 1, 2023, from $8,500 to $6,000. The circuit court also set a 

“definite ending date of the spousal support” as the first day of the month following husband’s 70th

birthday. 
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Wife filed a motion for reconsideration and, alternatively, a motion “requesting a five-year

reservation of the right to request spousal support in the future” under Code § 20-107.1, beginning 

on husband’s 70th birthday. Following a hearing, the circuit court denied wife’s motion and entered 

a final order. Wife appeals. 

ANALYSIS

“The 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, 73 Va. App. at 379 (quoting Dailey v. Dailey, 59 Va. App. 734, 742-43 (2012)). “The 

trial court then has broad discretion in deciding whether the spousal support award should be 

modified and, if so, by how much.” Id. The circuit court’s decision will not be disturbed “where 

it is based on an ore tenus hearing, unless it is ‘plainly wrong or without evidence in the record 

to support it.’” Id. at 381 (quoting Barrs v. Barrs, 45 Va. App. 500, 507 (2005)).

A. Material Change of Circumstances

On appeal, wife argues that the circuit court erred when modifying the original spousal 

support award and converting it from an undefined duration to a defined duration without a 

material change of circumstances. “Before a court may consider a party’s motion to modify a 

support obligation, it must find a material change of circumstances.” Id. at 380. “Whether there 

has been a material change of circumstances is a factual finding.” Id. at 381. 

Here, the circuit court found a material change of circumstances since the last support 

order based on several factors, including changes in husband’s income, wife’s financial 

resources, and wife’s obligations toward her adult son’s care. On appeal, wife does not 

challenge the circuit court’s conclusion that her son no longer lives with her full-time, or that she 

receives $1,401 in monthly Social Security benefits. 
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Wife, however, argues that the circuit court erred in determining both her and husband’s 

income. “The issue of a party’s income is a question of fact that we will not disturb unless it is 

plainly wrong or without evidence to support it.” Da’mes v. Da’mes, 74 Va. App. 138, 145 

(2022) (quoting Milam v. Milam, 65 Va. App. 439, 462 (2015)).

Regarding husband’s income, wife claims she is unable to “recreate the [circuit] court’s 

calculations.” In reaching its determination, the circuit court considered evidence of husband’s 

federal income tax filings from 2013 to 2021. As owner of his company, husband reinvested a 

portion of the total income into his firm. Based on the evidence presented at trial, the circuit

court averaged husband’s income, less the amount reinvested into the firm, over a nine-year

period. The circuit court’s calculation of husband’s income was not plainly wrong or without 

evidence in the record to support it. Id.

Regarding wife’s income, the circuit court found that wife “received additional income, 

funds or deposits from her father or other sources from 2017 to 2021 that averaged $34,380.00 

per year.” On appeal, wife argues that she “will certainly not receive anything near the $34,380 

in non-Social Security income found by the trial court” in the future. Wife alleges that the

deposits included a gift from her father, as well as insurance proceeds. The circuit court 

acknowledged these deposits, but noted that even without them, there was “significant additional 

income/funds available to” wife from Social Security benefits and payments from her father. 

During the hearing, wife testified that the payments from her father were from his personal 

accounts and were “reimbursements” for things like groceries and his cell phone bill. Wife, 

however, offered no evidence, such as bills or receipts, to support her argument that she used the 

payments only for the care of her father. Based on the totality of the record, we find that the 

circuit court’s calculation of wife’s income was not plainly wrong or without evidence in the 

record to support it.
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Accordingly, the evidence supports the circuit court’s finding that since the entry of the 

last support order, the parties’ incomes and financial resources had changed and wife’s 

obligations toward her son’s care had decreased. Therefore, we find the circuit court did not err 

in finding a material change of circumstances.

B. Modification of Spousal Support

“Having found material changes in the circumstances of the parties, the trial court was 

required to evaluate whether those changes in circumstances justified a modification in spousal 

support ‘as the circumstances may make proper.’” Nielsen, 73 Va. App. at 389 (quoting 

Hollowell v. Hollowell, 6 Va. App. 417, 419 (1988)). After the circuit court found a material 

change of circumstances, Code § 20-109(G) provides that “the court may consider the factors set 

forth in subsection E of § 20-107.1 and subsection F of [§ 20-109] in making its determination as 

to whether any modification or termination of such support should be granted.”

As noted above, the circuit court explicitly stated that it considered Code § 20-107.1(E)

factors.

1

 In doing so, the circuit court appropriately considered the duration of the marriage. 

The parties were married for just over 13 years, spending the last 4 years of their marriage 

separated. At the time of the support modification hearing, husband had paid wife spousal 

support for the four years of their separation and ten years since the final divorce decree. The 

circuit court also appropriately considered the parties’ age and health, noting that neither was “in 

excellent health.” The circuit court found that wife was still able to care for her father and that 

husband was still able to work, but that he “must be allowed to plan for and eventually retire 

1 The court’s letter opinion of March 17, 2023, finds that “there is a material change of 

circumstances based on several factors[,]” and then lists those factors. Specifically, the findings

that “Ms. Oakey is now receiving $1,401.00 monthly social security benefits” and that 

“Ms. Oakey’s son is no longer living full time with her in Roanoke.” Additionally, the court 

“considered the factors contained in . . . Code § 20-107.1(3), regarding the duration of the 

marriage, and . . . Code § 20-107.1(4) regarding the age and physical and mental condition of the 

parties and any special circumstances of the family.”
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from what is described to be a stressful position as a lobbyist.” Finally, the circuit court 

considered that wife had received additional income beyond spousal support, including Social 

Security benefits and payments from her father. 

Wife challenges the circuit court’s finding that “[b]ased on the length of the marriage, 

and the age of the parties, . . . lowering the spousal support is appropriate and that a defined 

ending of the support is further appropriate.” Wife argues the circuit court erred because the 

parties’ age and the length of the marriage were “not unforeseeable material changes in 

circumstances” at the time of the original award. She also argues that the circuit court erred in 

modifying the award of spousal support based upon future events and circumstances by 

terminating the support when husband turns 70 years old. Wife’s arguments are unpersuasive

because at the time of the original award, the circuit court explicitly contemplated a change in 

the future, as it kept “open the possibility of recalibrating the support award from time to time as 

conditions change[d], [and] reserv[ed] to this [circuit c]ourt (or any other court that may have 

jurisdiction to act) the right and power to modify or terminate spousal support, and reserving to 

each party the right, for good cause, to seek modification or termination.” (Emphasis added). 

The circuit court recognized that the parties’ situation may change as they grew older and 

allowed them to seek modification of the support award “in light of any material change in 

circumstances in the future.” After finding that there had been a material change in 

circumstances since the last support order, the circuit court then considered the statutory factors 

and determined that a modification was warranted. As discussed herein, the record supports the 

circuit court’s findings.

Wife alternatively contends that the circuit court failed to comply with Code 

§ 20-107.1(F), because the order failed to state that the circuit court considered retirement in 

fashioning the award. Code § 20-109(F) applies in “an action for the increase, decrease, or 
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termination of spousal support based on the retirement of the payor spouse.” (Emphasis added). 

Here, both parties sought a modification of spousal support, but not because of husband’s 

retirement. Rather, wife sought an increase in her spousal support award because of an increase 

in husband’s financial resources and her continuing need for support. Meanwhile, husband 

argued for a reduction or termination of his spousal support obligation based on an increase in 

wife’s financial resources and change in her caregiving duties. At the time of the hearing, 

husband was “almost” 66 years old and expressed a “desire to retire or substantially cut back his 

employment” within a year of the hearing. The circuit court did not reduce or terminate 

husband’s spousal support obligation at the time of his planned retirement; instead, the circuit 

court continued spousal support until husband turned 70 years old, approximately 4 years after 

his intended retirement date. The court reasoned that husband “must be allowed to plan for and 

eventually retire from what is described to be a stressful position[.]” Husband testified that upon 

retirement there would be “[n]o possible way,” he could continue paying the $102,000 in 

support. Thus, the circuit court did not make its decision based on husband’s retirement, but 

rather, in its discretion, decided that reducing the amount of support and ending support when 

husband turned 70 was reasonable given the factors it examined under Code § 20-107.1(E).

Considering the evidence in the light most favorable to husband, we find the circuit court’s 

determination was not plainly wrong or without evidence in the record to support it. Nielsen, 73

Va. App. at 381. We therefore affirm the circuit court’s order modifying the spousal support 

award.

C. Reservation of Jurisdiction

Finally, wife argues that the circuit court erred in failing to grant wife a reservation for 

spousal support following husband’s 70th birthday. Code § 20-107.1(D) states that “[i]n 

addition to or in lieu of an award pursuant to subsection C, the court may reserve the right of a
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party to receive support in the future.” A “court-ordered reservation of the right to receive 

spousal support pursuant to Code § 20-107.1(D) is a ‘decree concerning maintenance and 

support’ of a spouse.” Payne v. Payne, 77 Va. App. 570, 591 (2023). “When a trial court grants 

a reservation of spousal support it is awarding the right to seek periodic or lump sum support and 

maintenance at a later date.” Id.

Although the circuit court modified spousal support, wife still received a spousal support 

award. Wife retained the right to request a modification of the current award upon a showing of 

a material change in circumstances under Code § 20-109(B). Moreover, Code § 20-107.1(D) 

provides a rebuttable presumption that a reservation would “continue for a period equal to 50 

percent of the length of time between the date of marriage and the date of separation.” In this 

matter, husband had been paying spousal support longer than the parties had been married. 

Accordingly, we find the circuit court did not err in denying wife’s request for a reservation.

CONCLUSION

For the foregoing reasons, the circuit court’s judgment is affirmed.

Affirmed.