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Strack v. Strack

Court of Appeals of Virginia

December 17, 2013

WILLIAM STRACK
v.
WENDY ELIZABETH STRACK

FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND COUNTY OF JAMES CITY Walter J. Ford, Judge Designate.

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

Kenneth B. Murov (Hope C. Hutchinson; Law Offices of Kenneth Murov, on brief), for appellee.

Present: Judges Humphreys, Beales and Huff Argued at Chesapeake, Virginia.

MEMORANDUM OPINION [*]

GLEN A. HUFF, JUDGE.

William Strack ("husband") appeals an order of the Circuit Court of the City of Williamsburg/James City County ("trial court") denying husband's motion to reduce or terminate spousal support. Husband contends that the trial court failed to view the evidence in the light most favorable to husband on wife's motion to strike, erroneously weighed the witnesses' credibility, and failed to draw the reasonable inference that husband's termination from employment was not his fault. Additionally, husband asserts that the trial court was plainly wrong in finding that husband's termination arose from his own fault.

For the following reasons, this Court affirms the trial court's rulings.

I. BACKGROUND

The standard of review for husband's first assignment of error, the alleged failure to view the evidence in the light most favorable to husband as the non-moving party on the motion to strike, requires us to view the evidence in the light most favorable to husband, granting him the benefit of all reasonable inferences. Volpe v. City of Lexington, 281 Va. 630, 639, 708 S.E.2d 824, 828 (2011) (quoting TB Venture, LLC v. Arlington Cnty., 280 Va. 558, 562-63, 701 S.E.2d 791, 793 (2010)). As to the second assignment of error, claiming the evidence to be insufficient to support the trial court's finding that husband's termination arose from his own fault, "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, 835 (2003). Viewed from either perspective, the controlling facts remain the same. Here, the motion to strike was granted at the conclusion of the plaintiff-husband's case-in-chief. The trial judge found the admissions by husband compelling, "all of the evidence that I needed concerning whether or not he was underemployed came from him . . . and concerning his loss of employment . . . it was strictly between Mr. Henderson and Mr. Strack." The evidence presented was as follows.

Husband married Wendy Strack ("wife") on February 22, 1997, and they were separated on March 7, 2009. Following the separation, the parties negotiated a separation agreement ("agreement") dated September 28, 2010, settling all issues. The agreement was ratified, affirmed, and incorporated by reference, but not merged into the final decree of divorce, which was entered on January 3, 2011. Thereafter, both parties agreed to a monthly spousal support amount of $4, 250 per month. At the time the spousal support was agreed upon, wife was unemployed and husband was employed by Henderson, Inc. ("HI") with an annual income of $120, 000 or $10, 000 per month. The agreement and decree of divorce further provided "[i]n the event [husband's] present employment with Henderson, Inc. is terminated through no fault of his own . . . [husband] shall have the right to seek modification or termination of the spousal support."

During husband's case-in-chief, Peter Henderson ("Henderson"), chairman of HI, testified that husband started working for HI in 1995 and "worked himself up from being a pipefitter all the way up to the position of president of the company in 2007." Henderson attributed husband's promotion to "leadership skills that fit well within [HI] . . . and [he] just did a good job and worked his way up." At a meeting on August 31, 2012, Henderson terminated husband despite HI's growing profitability and expansion under husband's presidency.

Husband's separation notice ("notice"), which was signed by Henderson, was entered into evidence at trial. Henderson testified the notice was "accurate when completed" and husband's "Type of Separation" was a "Layoff." Moreover, the notice indicated husband's performance was "satisfactory" in all categories, including "quality, " "productivity, " "job knowledge, " "reliability, " "attendance, " "independence, " "creativity, " "initiative, " "adherence to policy, " "interpersonal relationships, " "judgment, " and "supervisory skills." Furthermore, the notice indicated in "Remarks" under the "Type of Separation" that HI was "not comfortable with the direction that the company was headed."

On direct examination Henderson elaborated about his growing discomfort with the direction of the company:

BY MR. HARRIS: All right. So, when you say you were not comfortable with the direction the company is headed, you've testified that the ...

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