                                             COURT OF APPEALS OF VIRGINIA
UNPUBLISHED


              Present: Judges Humphreys, Beales and Alston
              Argued at Richmond, Virginia


              STANLEY HUBBARD
                                                                              MEMORANDUM OPINION* BY
              v.     Record No. 0197-17-2                                    JUDGE ROBERT J. HUMPHREYS
                                                                                  OCTOBER 17, 2017
              CYRENNE HUBBARD


                                FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                                              David E. Johnson, Judge

                               Robert L. Harris, Jr. (Barnes & Diehl, P.C., on brief), for appellant.

                               No brief or argument for appellee.


                     Appellant Stanley Hubbard (“husband”) appeals the Chesterfield County Circuit Court’s

              (the “circuit court”) denial of his Motion to Amend or Review Order (“Motion to Amend

              Spousal Support”) initially filed with the Chesterfield Juvenile and Domestic Relations District

              Court. Husband contends that (1) the circuit court erred when holding that no modification of

              spousal support is warranted because husband did not present evidence of his continuing ability

              to pay support and that (2) the circuit court erred when holding that no modification of support is

              warranted because husband presented no evidence of whether wife needs more or less support

              than the current award.

                     On August 13, 1994, husband and wife lawfully married. The parties have four children.

              On May 16, 2008, by final decree of divorce, the circuit court awarded wife $2,500 per month in

              spousal support commencing on November 1, 2007. On September 25, 2015, husband filed a



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Motion to Amend Spousal Support with the juvenile and domestic relations district court, which

it denied. Thereafter, husband filed a Motion to Amend Spousal Support with the circuit court,

which it denied via letter opinion on December 2, 2016. On January 31, 2017, the circuit court

denied husband’s motion to reconsider.

          A court “may increase, decrease, or terminate the amount or duration of any spousal

support and maintenance that may thereafter accrue, whether previously or hereafter awarded, as

the circumstances may make proper.” Code § 20-109(A). A party seeking modification “is

required to prove both a material change in circumstances and that this change warrants a

modification of support.” Street v. Street, 25 Va. App. 380, 386, 488 S.E.2d 665, 668 (1997)

(quoting Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989)). The

material change in circumstances also “must bear upon the financial needs of the dependent

spouse or the ability of the supporting spouse to pay.” Moreno v. Moreno, 24 Va. App. 190,

195, 480 S.E.2d 792, 795 (1997) (emphasis added) (quoting 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.” Driscoll v.

Hunter, 59 Va. App. 22, 33, 716 S.E.2d 477, 482 (2011). Not every material change in

circumstance, however, justifies a modification of spousal support. See Blackburn v. Michael,

30 Va. App. 95, 103, 515 S.E.2d 780, 784 (1999). Further, “spouses entitled to support have the

right to be maintained in the manner to which they were accustomed during the marriage, subject

to the other spouse’s ability to pay.” Furr v. Furr, 13 Va. App. 479, 483, 413 S.E.2d 72, 75

(1992).

          On appeal, the circuit “court’s findings must be accorded great deference.” Bandas v.

Bandas, 16 Va. App. 427, 432, 430 S.E.2d 706, 708 (1993). “In determining whether credible

evidence exists, the appellate court does not retry the facts, reweigh the preponderance of the

                                                -2-
evidence, or make its own determination of the credibility of witnesses.” Wagner Enters., Inc. v.

Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). “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, 13 Va. App. at 481, 413 S.E.2d at 73 (quoting Schoenwetter, 8

Va. App. at 605, 383 S.E.2d at 30).

       In its December 2, 2016 letter opinion, the circuit court expressly considered whether the

material change in circumstances alleged by husband warranted a modification of the spousal

support award. Specifically, the letter opinion considered the fact that neither party presented

evidence as to the “crucial question . . . the ability of the supporting spouse to pay.” Though the

circuit court heard testimony regarding wife’s acquisition of debt to finance her education, there

was little evidence indicating a change in circumstances. As a result, the circuit court found that

“the only significant change in circumstance is that fact that the children are all nine years

older.” Additionally, the circuit court found no evidence establishing that this “passage of

years. . . lessened the necessity for [wife] to continue her absence from the workforce or lessened

the financial support she needs to meet her obligations.”

       The circuit court also considered some of the Code § 20-107.1 factors in determining the

appropriateness of modifying the spousal support award.1 Applying Code § 20-107.1, the circuit

court found “no evidence regarding the obligations, needs, and financial resources of the

parties.” Further, the circuit court found no evidence regarding “the standard of living

established during the marriage, the age and physical and mental condition of the parties and any

special circumstances of the family, or the property interests of the parties . . . .” Rather, the


       1
         As indicated in the December 2, 2016 letter opinion, the circuit court is not required to
consider the factors listed in Code § 20-107.1 in determining whether to modify a spousal support
award. A court may modify spousal support “as the circumstance make proper.” Code
§ 20-109(A). But, as the circuit court explained, the Code § 20-107.1 factors are useful in
considering the appropriateness of a modification.
                                                -3-
circuit court “heard evidence only regarding [wife’s] earning capacity, . . . present employment

opportunities,” and opportunity to enhance her earning capacity. Weighing the evidence, the

circuit court concluded that there was no material change in circumstances sufficient to justify a

modification and denied husband’s Motion to Amend Spousal Support.

       Husband first assigns as error the circuit court’s failure to draw an inference of his

continuing ability to pay spousal support. As the moving party, husband had the burden of

persuasion that a material change in circumstances occurred sufficient to warrant a modification

of spousal support. As noted by husband and recognized by the circuit court, husband failed to

produce any direct evidence of husband’s continuing ability to pay spousal support. Husband

curiously argues, however, that his failure to produce evidence suggesting an inability to pay the

current spousal support award “necessarily yields the inference that Husband has the ability to

pay support.”

       In support of his proposed inference, husband cites Neeley v. Johnson, 215 Va. 565, 211

S.E.2d 100 (1975). Neeley discusses the appropriateness of inferences that may be drawn from

the nonavailability of a material witness. Neeley does not, however, stand for the proposition

that a circuit court must necessarily draw an inference supporting a party’s burden of persuasion

based on that party’s failure to produce evidence. Moreover, although the converse could

certainly be evidence of a material change in circumstances, we are at a loss to understand how

an inference that husband continues to have the ability to pay the previously ordered amount of

spousal support, necessitates a finding of a change in circumstances.

       Husband’s second assignment of error alleges that the circuit court failed to examine

whether wife requires the same amount of support from husband. Primarily, husband’s argument

is based on the passage of nine years since he began paying spousal support. Husband

emphasizes that the emancipation of the parties’ eldest child, combined with the maturation of

                                               -4-
the other three children, is a material change in circumstances that warrants a modification of

spousal support. Husband also alleges that wife necessitates less spousal support because wife is

able to return to the workforce and become self-sufficient.

       To support the alleged change in circumstances, husband cites case law summarizing a

supported spouse’s obligation to decrease the amount of support needed. Essentially, husband

argues that the circuit court erred because “one who seeks spousal support is obligated to earn as

much as he or she reasonably can to reduce the amount of the support need.” Srinivasan v.

Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990). Relying on this principle,

husband alleges, “in light of her circumstances and employability,” that wife no longer

necessitates the current amount of spousal support.

       Husband’s argument is more properly directed to the fact-finding function of the circuit

court, and is not an appropriate decision for this Court on appeal. The circuit court explicitly

acknowledged the same argument that husband now makes on appeal—that the change in

circumstances arising from the passage of time warrants a modification of spousal support.

Husband fails to recognize that a change in circumstances alone does not require the alteration of

a spousal support award. See, e.g., Driscoll, 59 Va. App. at 33, 716 S.E.2d at 481-82; Street, 25

Va. App. at 386, 488 S.E.2d at 668. As explained by the circuit court, “the only significant

change in circumstances is that fact that the children are all nine years older.” The circuit court,

however, found “no evidence that this passage of years has lessened the necessity for [wife] to

continue her absence from the workforce or lessened the financial support she needs to meet her

obligations.” In other words, the circuit court concluded that husband had not met his burden of

persuasion that the change in his children’s circumstances was sufficient to warrant a

modification of spousal support.




                                                -5-
       Perhaps anticipating this conclusion, husband alternatively argues that he did not have the

burden to prove wife’s need for support. This argument, however, has no merit. In Virginia, it is

well-established that the party seeking modification “is required to prove both a material change

in circumstances and that this change warrants a modification of support.” Street, 25 Va. App. at

386, 488 S.E.2d at 668. It follows that husband had the burden of persuasion.

       The circuit court appropriately weighed the evidence in determining that the change in

circumstances did not warrant a modification in the spousal support award. The circuit court

acknowledged the “fact that the children are all nine years older” constituted a “significant

change in circumstances.” Assuming without deciding that “significant” and “material” are

synonymous, the circuit court, however, found “no evidence upon which to consider [wife’s]

need and [husband’s] ability to pay.” Instead, husband only presented evidence “regarding

[wife’s] earning capacity, . . . present employment opportunities,” and opportunity to enhance

her earning capacity. As a result, the circuit court concluded that husband did not meet his

burden of persuasion.

       This Court has no authority to substitute its own judgment for that of a judge or jury

below with respect to whether a party has carried its burden of proof or persuasion. It follows

that the circuit court did not abuse its discretion in making the determination that husband failed

to do so. Furthermore, husband’s argument that the circuit court should have inferred his ability

to pay spousal support does not change this result.

       For the forgoing reasons, we affirm the circuit court’s denial of husband’s Motion to

Amend Spousal Support.

                                                                                          Affirmed.




                                                -6-
