Z. Curtis Wieters v Linda G. Wieters

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COURT OF APPEALS OF VIRGINA

Present: Judges Wllis, Bray and Annunziata
Argued at Norfolk, Virginia

Z. CURITS WETERS
MEMORANDUM OPI N ON’ BY
Vv. Record No. 1531- 98- 1 JUDGE JERE M H WILLIS, JR
JULY 20, 1999
LINDA G WETERS

FROM THE CI RCU'T COURT OF THE CITY OF CHESAPEAKE
V. Thonas Forehand, Jr., Judge

Robert G Byrum(Shanes & Byrum on brief),
for appellant.

Dane Poneroy Giffin for appellee.

On appeal froma notion to reduce his spousal support
obligation, Z. Curtis Weters (husband) contends that the trial
court erred in failing to find a material change in
circunstances and in relying solely on his paynent of country
club dues in considering whether any change warranted a
reduction in nonthly spousal support. Linda G Weters (wfe)
assigns cross error to the trial court's refusal to dismss the
husband's notion summarily. W find no error and affirmthe
judgnent of the trial court.

As the party seeking to nodify spousal support, the husband

bears the burden "to prove both a material change in

* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

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). 	See also Code § 20-109. 	"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
to support it.'" 	Furr v. Furr, 13 Va. App. 479, 481, 413 S.E.2d
72, 73 (1992) (citation omitted).
The parties' final divorce decree required the husband to
pay the wife $1,100 per month spousal support. 	This was based
on an earlier finding that the husband's income was $65,000 per
year and on consideration of the wife's needs. 	The husband's
earnings were reduced after March 1996. 	At the time the divorce
decree was entered, November 12, 1997, the husband's income was
$460 per week. 	He presented no evidence of this and did not
present this change of income to the trial court at the time of
the entry of the final divorce decree. 	He did not appeal the
divorce decree, and that decree became final.
At the time of the hearing on the husband's motion to
reduce spousal support, April 29, 1998, his earnings had been
further reduced to $360 per week. 	However, the evidence
established that he had other resources available to him and
that he maintained a country club membership, paying $224 per
month in dues and fees.
The husband contends that in consideration of his motion to
reduce spousal support, the trial court should have considered
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the reduction in his income from $65,000 per year to $360 per
week, unquestionably a material change. 	However, the
circumstances upon which the husband's support obligation was
based were the circumstances obtained at the time the final
decree was entered. 	At that time, his income was $460 per week.
The trial court properly considered the change from that amount,
or $100 per week. 	See Hiner v. Hadeed, 15 Va. App. 575, 577,
425 S.E.2d 811, 812 (1993).
In considering whether the change in the husband's income
from $460 per week to $360 was a material change in
circumstances justifying a change in his support obligation, the
trial court noted that the husband continued to pay $224 per
month in country club dues. 	The record does not support the
finding that the trial court limited its consideration to that
circumstance. 	However, the lifestyle that the husband continued
to provide himself, including country club membership, was a
circumstance properly considered by the trial court in
determining whether the husband's changed circumstances
justified a reduction in his spousal support. 	The record
supports the trial court's determination that "there has not
been a material change in circumstances [warranting a reduction
of support] based on [the husband's] lifestyle."
Because we affirm the trial court's denial of the husband's
motion to reduce spousal support, the trial court's denial of
the wife's motion to dismiss is moot.
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The j udgnent of the trial court is affirned.

Af firned.