Frank Howard v. Suzanne Howard, 0819224

Parties executed a November 2018 separation agreement incorporated into the February 2019 divorce decree; husband agreed to pay $2,000/month spousal support, modifiable for a “material change in either party’s financial circumstances.”
In October 2019 the husband was struck by a vehicle, suffered severe injuries, and soon after filed to modify/terminate support alleging he could not work or pay.
A pretrial order set witness/exhibit lists due Aug 16, 2021; husband filed late and was hospitalized in Aug 2021, prompting an emergency continuance to May 3, 2022; the court declined to extend pretrial deadlines.
On the May 3, 2022 hearing the court vacated the portion of the 2021 order that would bar present-day evidence but denied a further continuance; husband testified to disability, multiple surgeries, depletion of home-sale proceeds, and receipt of Social Security (~$2,513/mo).
Husband attempted to elicit testimony about the parties’ reasons for the original $2,000 award and the wife’s income but did not proffer the excluded testimony; the court granted the wife’s motion to strike and found the husband’s present income exceeded his 2018 reported income.
The circuit court denied modification, awarded the wife attorney fees below, and the Court of Appeals affirmed and denied appellate fees.

Issue	Howard’s Argument	Howard’s Opponent (Howard)	Held
Denial of last‑minute continuance	Court abused discretion; needed new scheduling order to allow supplementation and present documentary/testimonial evidence	No abuse; court permitted present‑day evidence and husband failed to proffer what additional evidence he would offer or show prejudice	Affirmed — no abuse of discretion; husband didn’t proffer excluded evidence or show prejudice
Exclusion of testimony about formation of settlement and wife’s income	Exclusion of background/founding circumstances and wife’s 2019 income was erroneous	Evidence irrelevant or not properly preserved; husband failed to proffer excluded testimony	Not considered on appeal — husband failed to proffer the excluded testimony
Whether husband proved a material change in circumstances to modify support	Accident, disability, asset depletion and inability to work materially reduced ability to pay	Husband’s income at hearing (Social Security) exceeded his 2018 reported income; husband bore burden to prove change affecting ability to pay	Affirmed — court found income had increased since agreement; no material change affecting ability to pay
Wife’s request for appellate attorney fees	N/A (wife sought fees)	Husband notes at least one non‑frivolous claim	Denied — discretionary; equities do not warrant awarding appellate fees

Shah v. Shah, 70 Va. App. 588 (continuance decision committed to trial court’s discretion)
Va. Fuel Corp. v. Lambert Coal Co., 291 Va. 89 (abuse of discretion standard governs review)
Graham v. Cook, 278 Va. 233 (proffer prerequisite for appellate review of excluded evidence)
Commonwealth Transp. Comm’r v. Target Corp., 274 Va. 341 (proffer must create record of what excluded evidence would have been)
Ray v. Commonwealth, 55 Va. App. 647 (a proffer cannot be mere theory; must state substance of evidence)
Klein v. Klein, 11 Va. App. 155 (need proffer to preserve claim that evidence was wrongly excluded)
Nielsen v. Nielsen, 73 Va. App. 370 (moving party must prove material change and that it warrants modification)
Barnes v. Barnes, 64 Va. App. 22 (material change must affect need for support or ability to pay)
Barton v. Barton, 31 Va. App. 175 (same — change must relate to need or ability to pay)
Ted Lansing Supply Co. v. Royal Aluminum & Constr. Corp., 221 Va. 1139 (judgment must be based on facts pleaded; relief limited to pleaded grounds)