Opinion
Record No. 1391-92-2
April 27, 1993
FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS HERBERT C. GILL, JR., JUDGE.
(Thomas L. Murphey; Beddow, Marley, Burgess Murphey, on brief), for appellant.
(Rebecca E. Duffie; Robert C. Elliott, II, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.
Waverly Earl Smith ("husband") appeals the order of the trial judge denying his petition to reduce the amount of spousal support which he pays to Patricia Elder Smith ("wife").
Code § 20-109 allows modification of spousal support "as the circumstances may make proper." The party seeking to modify spousal support must prove both a material change in circumstances and that the change warrants modification.Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989). "The judgment of a trial court sitting in equity, when based upon an ore tenus hearing, will not be disturbed on appeal unless plainly wrong or without evidence to support it."Box v. Talley, 1 Va. App. 289, 293, 338 S.E.2d 349, 351 (1986). On appeal, we construe the evidence in the light most favorable to the prevailing party, granting that party all inferences fairly deducible therefrom. McGuire v. McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990). We will not disturb the trial court's exercise of discretion on appeal unless it is clear that some injustice has been done. Steinberg v. Steinberg, 11 Va. App. 323, 329, 398 S.E.2d 507, 510 (1990).
Husband asserts that since the original award of spousal support was made he has lost the two part-time jobs he had and has been forced to go into bankruptcy. According to husband, wife has received an increase in her monthly salary, receives an undisclosed amount of money from a sporadic boarder, and receives only $25 per week from her adult, employed son who lives with her.
According to wife, since the bankruptcy proceedings husband no longer has many of the expenses that he was responsible for at the time of the first award, and wife has had to bear full responsibility for many of the debts from which husband was discharged. She noted that he had received a raise in his salary since the original award, and that he included no information on his worksheets to indicate any contribution by the woman who lives with him.
Balancing the factors raised by each party, the trial court found that there was no substantial change in circumstances. In light of the evidence recited above, this decision is not plainly wrong or without evidence to support it. Box, 1 Va. App. at 293, 338 S.E.2d at 351.
For the reasons stated, we affirm the decision of the trial court.
Affirmed.