                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Alston, Decker and Senior Judge Coleman
UNPUBLISHED



              PAUL H. BLALOCK
                                                                                     MEMORANDUM OPINION*
              v.      Record No. 0895-14-4                                               PER CURIAM
                                                                                       NOVEMBER 4, 2014
              SHERRI SUE BLALOCK


                                    FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                                            Thomas D. Horne, Judge Designate

                                (Ryan M. Schmalzle; Beckman Schmalzle PLC, on briefs), for
                                appellant.

                                (Elizabeth M. Ross; Lieblich & Grimes, P.C., on brief), for appellee.


                      Paul H. Blalock (husband) appeals a spousal support order. Husband argues that the trial

              court erred by (I) modifying his spousal support obligation because “the trial court failed to properly

              account for (1) the income imputed to [Sherri Sue] Blalock [(wife)], (2) [wife’s] significantly

              reduced cost of living due to her relocation, (3) [wife’s] lack of housing costs, and (4) the factors

              listed in Virginia Code Ann. 20-107.1(E);” and (II) not terminating his spousal support obligation

              because wife failed to prove an ongoing need for support and because “the trial court failed to

              properly account for (1) the income imputed to [wife], (2) [wife’s] significantly reduced cost of

              living due to her relocation, (3) [wife’s] lack of housing costs, and (4) the factors listed in Virginia

              Code Ann. 20-107.1(E).” Upon reviewing the record and briefs of the parties, we conclude that

              this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court.

              See Rule 5A:27.




                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                         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.”

Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003) (citations omitted).

       The parties married on December 22, 1979. The trial court entered an amended order of

divorce on March 11, 2009, nunc pro tunc to November 6, 2008. Pursuant to the order, husband

was to pay spousal support to wife in the amount of thirty percent of his base salary, so at the

time of the divorce, he paid her $7,125 per month. As additional support and maintenance, he

was ordered to pay wife thirty percent of “the gross cash component of the Husband’s annual

bonus” within ten days of its receipt.

       At the time of the divorce, wife lived in the former marital residence in Loudoun County.

After the former marital residence sold, she moved to her home in Fort Gibson, Oklahoma and

paid off its mortgage.

       On May 18, 2012, husband filed a motion to modify spousal support. Husband argued

that wife moved to Oklahoma and lowered her cost of living, so her need for spousal support

decreased. He also stated that he changed jobs since the parties divorced.

       On January 8, 2014, husband appeared before the trial court to present evidence on his

motion. Wife did not appear.1 Husband testified about the changes since the divorce, including

wife’s move to Oklahoma. He also presented evidence from a vocational and cost of living

expert who testified about the lower cost of living in Oklahoma and wife’s earning capacity.

       On January 10, 2014, the trial court issued a memorandum opinion. The trial court found

that there was a “material change in circumstances warranting a modification of support based


       1
         Wife requested a continuance of the hearing, but the trial court found that the motion
was “untimely and prejudicial” to husband. It also noted that the motion to modify spousal
support had been on the docket for over one and a half years.
                                              -2-
upon the testimony regarding the [wife’s] employability, vocational training period, [husband’s]

slight reduction in salaried income, amount of previous bonus awards, and cost of living for the

parties.” The trial court ordered that husband’s support obligation would be $7,125 per month,

as of January 1, 2014. He no longer was obligated to pay a portion of his bonus to wife. The

trial court entered an order memorializing its rulings on April 17, 2014. Both parties noted their

objections to the order.

       On the same day, the trial court also entered an order suspending judgment. Husband

filed a motion to reconsider and brief in support thereof on April 22, 2014. Husband requested

that the trial court lower his spousal support obligation to $2,535 per month, based on the wife’s

earning capacity and her lower cost of living. On April 30, 2014, the trial court entered an order

denying the motion to reconsider. This appeal followed.

                                            ANALYSIS

                                   Assignments of error I and II

       Husband argues that the trial court erred in modifying, not terminating, husband’s spousal

support obligation. He contends the trial court did not consider (1) income imputed to wife,

(2) wife’s lower cost of living in Oklahoma, (3) the lack of housing costs for wife, and (4) the

Code § 20-107.1(E) factors.

       “We will not disturb the trial court’s decision where it is based on an ore tenus hearing,

unless it is ‘plainly wrong or without evidence in the record to support it.’” Furr v. Furr, 13

Va. App. 479, 481, 413 S.E.2d 72, 73 (1992) (quoting Schoenwetter v. Schoenwetter, 8 Va. App.

601, 605, 383 S.E.2d 28, 30 (1989)).

       Husband contends the trial court erroneously considered the disparity in the parties’

earning capacities and did not focus on wife’s need for support. He asserts that wife’s need for

spousal support decreased when she moved to Oklahoma. She paid off the mortgage on her

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home in Oklahoma. In addition, husband presented expert testimony that the standard of living

was significantly lower in Fort Gibson, Oklahoma than it was in Loudoun County, Virginia.

Lastly, husband argues that the trial court did not consider the income it imputed to wife when it

determined her need for support.

       “The determination whether a spouse is entitled to [a termination of spousal] support . . .

is a matter within the discretion of the [trial] court . . . .” Dukelow v. Dukelow, 2 Va. App. 21,

27, 341 S.E.2d 208, 211 (1986).

       “Upon [the] petition of either party the court may increase, decrease, or terminate the

amount or duration of any spousal support and maintenance . . . as the circumstances may make

proper.” Code § 20-109. “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.” Schoenwetter, 8 Va. App. at 605, 383 S.E.2d at 30 (citation omitted). The material

change in circumstances “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).

       Contrary to husband’s arguments, the trial court considered all of the evidence presented

when it modified his spousal support obligation. The trial court noted in its memorandum

opinion that husband’s annual income at the time of the divorce was $285,000, not including

bonus income. At the time of the modification hearing, husband’s annual income was $275,000,

not including bonus income. It also determined that based on the evidence presented, wife was

capable of earning $20,000 per year “after five months training.” Further, the trial court found

that there was “a gross disparity between the cost of living in [wife’s] home state of Oklahoma

and that of Loudoun County.”




                                                -4-
        On appeal, husband focuses on the trial court’s statement that “the evidence suggests that

there exists both a gross disparity between the earning capacities of the parties even after

imputing income to [wife].” He argues that the trial court relied on an additional factor that was

not found in Code § 20-107.1(E), namely the parties’ disparity in incomes. Husband did not

make this objection or argument to the trial court. Therefore, this Court will not consider it.

Rule 5A:18.

        Husband also contends the trial court did not consider all of the evidence presented for

the factors in Code § 20-107.1(E). He asserts that the trial court did not consider wife’s

education, his contributions to the marriage, and the reasons for the breakdown of the marriage.

However, in its April 30, 2014 order, the trial court stated that “a reading of the Opinion reveals

the Court considered the statutory factors” and it specified where in its memorandum opinion

and prior order it considered the statutory factors. In awarding spousal support, a trial court must

consider the factors in Code § 20-107.1(E); however, “[t]his does not mean that the trial court is

required to quantify or elaborate exactly what weight or consideration it has given to each of the

statutory factors. It does mean, however, that the court’s findings must have some foundation

based on the evidence presented.” Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422,

426 (1986). Based on the trial court’s memorandum opinion, it is clear that the trial court

considered the Code § 20-107.1(E) factors when it modified the spousal support award.

        After hearing all of the evidence and argument, the trial court held that there was a

material change in circumstances that warranted a modification in spousal support. Despite

husband’s arguments otherwise, this Court finds that the trial court specifically stated that it

based its decision on “the testimony regarding [wife’s] employability, vocational training period,

[husband’s] slight reduction in salaried income, amount of previous bonus awards, and cost of

living for the parties.”

                                                -5-
       There is nothing in the record to suggest that a termination of spousal support was

appropriate considering the circumstances of the parties.

       Accordingly, the trial court did not err in modifying husband’s spousal support

obligation.

                                     Attorney’s fees and costs

       Both parties requested an award of attorney’s fees and costs incurred on appeal. See

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). On consideration

of the record before us, we decline to award either party attorney’s fees and costs on appeal.

                                         CONCLUSION

       For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.


                                                                                         Affirmed.




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