FROM THE CIRCUIT COURT OF FAIRFAX COUNTY. Charles J. Maxfield, Judge.
Ted Kavrukov (Law Office of Ted Kavrukov, LLC, on briefs), for appellant.
Susan Leslie-Fraser (The Law Offices of Susan Leslie-Fraser, on brief), for appellee.
Present: Judges Alston, Huff and Chafin.
[64 Va.App. 26] GLEN
A. HUFF, JUDGE.
William R. Barnes (" appellant" ) appeals a ruling of the Fairfax County Circuit Court (" trial court" ) granting Lucille F. Barnes' (" appellee" ) motion to strike appellant's evidence in appellant's petition to modify spousal support. On appeal, appellant first argues that the trial court erred by granting appellee's motion to strike on the ground that appellant failed to prove a change in circumstances that warrants a modification in spousal support. Next, appellant argues that the trial court erred by failing to take judicial notice of appellant's monthly income in 1991 as recorded in Barnes v. Barnes, 16 Va.App. 98, 428 S.E.2d 294, 9 Va. Law Rep. 1077 (1993). Finally, appellant argues that the trial court erred by failing to apply the correct standard for evaluating a motion to strike when considering the testimony of Christopher Blank (" Blank" ). For the following reasons, we affirm in part and dismiss in part.
" According to well-settled principles of appellate review, when the trial court grants a motion to strike the plaintiff's evidence, we review the evidence on appeal in the light most favorable to the plaintiff." Green v. Ingram, 269 Va. 281, 284, 608 S.E.2d 917, 919 (2005) (citing Perdieu v. Blackstone Family Practice Ctr., Inc., 264 Va. 408, 411, 568 S.E.2d 703, 704 (2002)); see also Bryan v. Burt, 254 Va. 28, 30-31, [64 Va.App. 27] 486 S.E.2d 536, 537 (1997). So viewed, the evidence is as follows.
The parties were married in June 1981 and divorced in December 1991. Although the divorce was granted in appellant's favor on the ground of adultery, appellee was nevertheless awarded $1,200 per month in spousal support. This award was appealed to, and affirmed by, this Court in Barnes v. Barnes, 16 Va.App. 98, 428 S.E.2d 294, 9 Va. Law Rep. 1077 (1993).
More than two decades later, appellant filed a petition to amend spousal support, which the trial court heard in May 2013. At the hearing on appellant's petition, Blank testified that he was appellant's former business partner and is the current president of Love, Barnes and McKew Insurance Adjusters. In December 2006, Blank, along with other employees of the business, entered into a " Buy/Sell Agreement" with appellant, whereby they purchased appellant's interest in the business. The agreement went into effect in January 2008, at which point appellant retired. Under the terms of the agreement, the buyers agreed to pay appellant a total of $500,000 in various installments. The agreement terminated on December 23, 2011, when the last installment was paid.
Appellant was called as the next witness, but he was unable to answer many questions or even provide his home address. The trial
judge allowed appellant's counsel to ask some leading questions, which resulted in appellant affirming that he had dementia and heart problems.
Appellant's last witness was Sharon Lewis (" Lewis" ). Lewis is appellant's live-in caretaker. She does all the cooking and cleaning, gives appellant his medications, pays some of his bills, takes him to the doctor, and provides any other necessary help. Lewis testified that appellant has " lost thirty pounds in the last six months. He is forgetful. I've taken over -- he can't -- he doesn't do math. He doesn't have any comprehension of a lot of things." Lewis also testified that, at the time of the hearing, ...