Ex-Husband Not Entitled To Modify Spousal Support.

In the case of Slye v. Slye, the Virginia Court of Appeals, in an unpublished opinion, ruled that an ex-husband was not entitled to modify a previous order granting his ex-wife spousal support.  Upon petition of either party, a court may . . . [modify] . . . spousal support . . . as the circumstances may make proper.” Code § 20-109. In order to modify a prior support order, the moving party 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). The material change in circumstances must have occurred after the most recent judicial review of the award, see Hiner v. Hadeed, 15 Va. App. 575, 577, 425 S.E.2d 811, 812 (1993), and “must bear upon the financial needs of the dependent spouse or the ability of the supporting spouse to pay,” Hollowell v. Hollowell, 6 Va. App. 417, 419, 369 S.E.2d 451, 452 (1988). “The crucial question, once a material change in circumstances has been shown, is the ‘ability of the supporting spouse to pay.’”

Here, the circuit court found that there was a material change in circumstances because of the decrease in husband’s income. However, after reviewing the Code § 20-107.1 factors, the circuit court stated that husband was able to travel extensively both in the United States and abroad and that he recently made a $400,000 down payment on a house. It further found that he increased his net income by refinancing the mortgage from fifteen years to thirty years. Thus, while the trial court found that husband’s income was reduced, it concluded that the reduction of income did not warrant a modification of the spousal support award because husband, at the time of the hearing, still had the ability to pay the award.

However, the trial court did err in awarding wife attorneys fees.  Here, the parties’ property settlement agreement expressly provides for an award of attorney’s fees in some instances but did not do so for spousal support modification proceedings.  Where the parties have entered into a written property separation agreement and no provision for the award of attorney’s fees is provided as to future spousal support obligations arising out of the agreement’s support terms, the court has no authority to award attorney’s fees in such a modification proceeding. This is based upon the limits of the court where the terms of an agreement are filed with the court, or incorporated in the final decree based upon § 20-109(A) and (C).