763 S.E.2d 836
Va. Ct. App.2014Background
- William R. Barnes (appellant) and Lucille F. Barnes (appellee) divorced in 1991; appellee was awarded $1,200/month spousal support, affirmed on appeal in Barnes v. Barnes.
- In 2013 appellant petitioned to modify spousal support, claiming retirement, dementia, and reduced income.
- Appellant presented testimony from a former business partner (Blank) about a 2008 buyout (total $500,000 paid out by December 2011) and from his caretaker (Lewis) about his health and current income.
- Lewis testified appellant’s present monthly income is approximately $3,444 (annuity + Social Security) and that his expenses exceed income; appellant could not testify coherently about details and claimed dementia.
- The trial court granted appellee’s motion to strike appellant’s evidence, concluding appellant failed to prove a material change in financial circumstances since the last adjudication; appellant’s renewed request that the court take judicial notice of his 1991 monthly income (as stated in Barnes) was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant proved a material change in circumstances to modify spousal support | Retirement and dementia alone show changed circumstances warranting modification | Appellee: must show a post-1991 financial/economic change affecting ability to pay or need | Held: No; appellant failed to show any financial change since 1991, so evidence was insufficient and strike was proper |
| Whether trial court should take judicial notice of appellant’s 1991 monthly income from prior appellate opinion | Barnes opinion shows $7,700/month in 1991 and should be noticed without formal introduction | Appellee: trial court should not judicially notice adjudicated facts from another case absent evidence | Held: Trial court properly declined; courts will not judicially notice adjudicated facts from other cases unless the record is introduced into evidence |
| Whether trial court applied correct standard in ruling on motion to strike (re: Blank’s testimony) | Appellant: court misapplied motion-to-strike standard to Blank’s testimony | Appellee: no reversible error; appellant failed to preserve/brief the issue properly | Held: Not considered on appeal—assignment waived for failure to comply with briefing rules |
| Whether appellee should be awarded appellate attorney’s fees | N/A (appellee sought fees) | Appellant: appeal not frivolous | Held: Appellee not entitled to appellate costs or fees |
Key Cases Cited
- Barnes v. Barnes, 16 Va. App. 98, 428 S.E.2d 294 (Va. Ct. App. 1993) (prior appellate decision affirming spousal support award in the original divorce)
- Hollowell v. Hollowell, 6 Va. App. 417, 369 S.E.2d 451 (Va. Ct. App. 1988) (change in circumstances for spousal support must be financial/economic)
- Moreno v. Moreno, 24 Va. App. 190, 480 S.E.2d 792 (Va. Ct. App. 1997) (material change must occur after most recent judicial review and bear on ability to pay or need)
- Taylor v. Commonwealth, 28 Va. App. 1, 502 S.E.2d 113 (Va. Ct. App. 1998) (standards for judicial notice of adjudicative facts)
- Bernau v. Nealon, 219 Va. 1039, 254 S.E.2d 82 (Va. 1979) (trial courts will not take judicial notice of records or adjudicated facts from other cases unless those records are offered into evidence)