Head v. Head

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Fitzpatrick and Annunziata
Argued at Alexandria, Virginia

TOVE REIAKVAM HEAD
OPINION BY
v. Record No. 0159-96-4 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 11, 1997
GORDON LAWRENCE HEAD

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
Carole Ann Roop (Robert E. Shoun; Shoun &
Bach, on briefs), for appellant.

Joseph A. Condo (Cheryl K. Graham; Condo &
Masterman, on brief), for appellee.

This matter came before the circuit court on the parties'

cross-motions seeking modification of child and spousal support

awards. The court found the only material change of circumstance

affecting the parties was the July 1995 legislative revision to

the child support guidelines. As a result, the court reduced

husband's child support obligation commensurate with the revised

guidelines but declined to modify spousal support. Wife appeals,

contending that the trial court erred (1) in refusing to deviate

from the presumptive amount of child support established by the

revised guidelines; or, alternatively, (2) in refusing to

increase spousal support in an amount equivalent to the reduction

in child support; and (3) in refusing to award her attorney's

fees. Husband raises assignments of cross-error, contending that

the trial court erred (1) in determining his income for 1994 and

1995; (2) by failing to consider the reduction in his income a
material change in circumstance; (3) in refusing to order the

reduction in child support retroactive to July 1, 1995; and (4)

in refusing to award him attorney's fees. Finding no error, we

affirm the trial court's decision.

I. RELEVANT FACTS

Appellant, Tove Reiakvam Head (wife), and appellee, Gordon

Lawrence Head (husband), were divorced by final decree entered

June 22, 1993. The parties are the parents of one minor child.
Pursuant to a pendente lite decree, husband paid wife $2,000

per month in child support and $5,000 per month in spousal

support, based on his projected income of $270,000 for 1992.

Following the divorce proceedings, the court found that husband

had "grossly underestimated" his projected earnings, finding his

yearly income to be approximately $450,000. The final decree

ordered husband to pay $3,062 in monthly child support, based

upon the applicable guidelines, and $5,688 in monthly spousal

support. Although the court also found that wife, who was not

working, would be able to earn between $20,000 to $35,000

annually, it declined to impute income to her. Instead, the

court based the child and spousal support awards solely on

husband's income and provided that it would review the awards in

March 1994, if the parties so desired.

At a hearing held in March 1994, the court found husband's

income to be $400,000 per year, stating:
In setting his income, I am really
giving him pretty much the benefit of all of
the doubts that I did not give him the

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 benefit of last time.

And maybe I am -- I may be going too far
in that direction. I guess let's see at the
end of the time because the $400,000 includes
what he is going to get, all his interest and
everything else.

At the same time, the court imputed income to wife, who still was

not working, in the amount of $27,500. After considering, inter

alia, wife's expected interest income and child care costs, the

court reapplied the child support guidelines and determined the

presumptive amount to be $3,279. The court then stated,
And so then I figured, well, what does
she need realistically . . . and I come to
spousal support of $3,721, which is a total
of child and spousal of $7,000, which is what
I figure now.

* * * * * * *

And if you want to agree to some
different allocation . . . you can.

The court entered an order on April 13, 1994, directing husband

to pay wife $3,279 per month in child support and $3,721 per

month in spousal support.

In January 1995, husband filed a motion seeking modification

of child support on the ground that his actual income from 1994

was significantly less than the court had projected it to be in

April of that year. In September 1995, wife filed a motion

seeking an increase in spousal support on the grounds that (1)

her needs had increased since April 1994; and (2) that any

reduction in child support granted pursuant to husband's motion

would warrant an increase in spousal support. Also in September

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1995, husband filed a motion seeking a reduction in spousal

support.

At an October 1995 hearing on the matter, husband presented

evidence that he earned approximately $300,000 from employment

during 1994 and that these earnings would remain substantially

the same in 1995. Other evidence husband presented established

that his employment generated income of approximately $468,000 in

1992, $366,000 in 1993, $298,000 in 1994, and would generate

$323,000 in 1995. Husband's evidence also established that he

earned approximately $60,000 from sources other than employment

in 1994 and that these earnings would remain substantially the

same in 1995.
Wife presented husband's 1994 tax return as evidence that

husband was paid approximately $390,000 from his employment that

year. Husband explained that the $90,000 difference between what

he actually earned in 1994 and what he reported in 1994 resulted

from his employer's tax strategy. He testified that two months

of income earned in 1993 had been deferred to 1994 and that one

month of income to be earned in 1995 had been advanced in 1994.

Wife's counsel later stipulated to the court that the parties had

agreed that the 1993 deferred income would not be considered in

husband's 1994 income.

The court determined that husband's income was approximately

$375,000 and that the difference between this amount and the

court's April 1994 finding of income level was not a material

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change in circumstance warranting a reduction in support. The

court, however, agreed with husband that the July 1995 revisions

to the child support guidelines were a material change in

circumstance that warranted a recalculation of his child support

obligation. The court ordered that child support be recomputed

according to the revised guidelines, using $400,000 as the amount

of husband's income. Wife did not dispute that the guideline

revision was, effectively, a material change in circumstance.
Evidence was also presented on the monthly expenses of wife

and the child. Ultimately, however, wife conceded, and the court

found, that there had been no change in wife's personal needs

following the April 1994 order.

II. MATERIAL CHANGE IN CIRCUMSTANCE

A court may exercise the power granted by Code §§ 20-108 and

20-109 to modify a decree concerning child or spousal support if

the party seeking the modification proves that a "material change

of circumstance ha[s] occurred since the last award or hearing to

modify support," and that the change "`justifies an alteration in

the amount of support.'" Hiner v. Hadeed, 15 Va. App. 575, 579,

425 S.E.2d 811, 814 (1993) (quoting Yohay v. Ryan, 4 Va. App.

559, 576, 359 S.E.2d 320, 324 (1987)); see Furr v. Furr, 13 Va.

App. 479, 481, 413 S.E.2d 72, 73 (1992). The threshold finding

that a material change of circumstance has occurred nullifies the

preclusive effect of the court's prior adjudication of support.

Hiner, 15 Va. App. at 580, 425 S.E.2d at 814 ("In the absence of

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a material change in circumstance, reconsideration of support

that has been previously adjudicated . . . would be barred by

principles of res judicata."). 1

A. HUSBAND'S INCOME

Husband contends the trial court erred in determining his

income for 1994 and 1995. He contends that his total income was

approximately $360,000 in 1994 and that he would earn

substantially the same amount in 1995. The trial court made no

finding with respect to husband's 1994 income because, as husband

argued, "there's nothing anybody can do about [the amount he

claimed he overpaid in 1994]." Furthermore, nothing in the

record suggests that the court considered that husband had

actually earned more than $360,000 in 1994.

1
The doctrine of res judicata is based on
the concept that the court should not be
called upon to adjudicate twice upon the same
set of facts and that an adversary should not
be twice vexed for the same cause of action.
Such considerations, if applied strictly,
require the rule that a petition to modify an
order of child support cannot be based on the
same set of facts that existed when the
original order was made. Accordingly, to
justify a modification it must ordinarily
appear that there has been a change of
circumstances since the order on the first
application for a reduction was made. . . . A
decree for child support is res judicata only
as long as the circumstances remain the same
as when the decree was rendered.

24 Am. Jur. 2d Divorce and Separation § 1082 (1983). See
generally, Bates v. Devers, 214 Va. 667, 670-71, 202 S.E.2d 917,
920-21 (1974) (discussing various preclusive effects of res
judicata doctrine).

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 The court found that husband would earn approximately

$375,000 in 1995. Husband claims the uncontroverted evidence

proved he would earn approximately $360,000, $300,000 from

employment and $60,000 from other sources. However, husband's

own evidence presented varying amounts of 1995 income from

employment for the court to consider, ranging from approximately

$300,000 to $323,000. Adding the $60,000 he expected to receive

from other sources to the highest amount of employment income in

evidence, to wit, $323,000, the court erred, if it all, in

husband's favor.
Next, husband argues that the trial court erred in ruling

that the $25,000 reduction in his income, from $400,000 to

$375,000, was not a material change in circumstance warranting a

reduction of his support obligations. We disagree.

Husband's evidence proved that his income varies because of

the nature of his business. From 1992 to 1995, husband's total

income was as much as 32% greater than $400,000 and as much as

10% less. According to husband's evidence, his 1995 income would

be approximately 4.5% to 10% less than $400,000. According to

the trial court's finding, husband would receive approximately

6.25% less than $400,000 in 1995.

Given the facts of this case, in light of the proven

variation in husband's income, together with the evidence of

husband's income for 1995, we agree with the trial court that a

variation of 6.25% in a single year is not a material change in

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circumstance.

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 B. CHILD SUPPORT

After the adoption of the child support guidelines, see Code

§ 20-108.2, an exception was created to the rule requiring a

material change in circumstance as a condition precedent to the

modification of child support. See Watkinson v. Henley, 13 Va.

App. 151, 156-57, 409 S.E.2d 470, 473 (1991); Milligan v.

Milligan, 12 Va. App. 982, 988, 407 S.E.2d 702, 705 (1991).
Our decisions in Watkinson and Milligan held
that adoption of the support guidelines and a
support award that pre-dated the guidelines,
and which varied significantly from the
presumptively correct amount, provided a
reason equivalent to a material change in
circumstance that justified a modification
hearing.

Hiner, 15 Va. App. at 579, 425 S.E.2d at 814. This Court has

extended the rationale of Watkinson and Milligan to create an

exception to the material change of circumstances requirement

where a legislative amendment to the child support guidelines

"significantly changed the earlier guideline considerations and

amounts." Slonka v. Pennline, 17 Va. App. 662, 664, 440 S.E.2d

423, 425 (1994). We find the case at bar analogous to Watkinson,
Milligan, and Slonka, because the 1995 amendment to Code

§ 20-108.2(B) significantly changed the presumptive support

obligation for parents earning in the higher income brackets.

Accordingly, although technically incorrect that the

amendment to the guidelines was a "material change of

circumstance," the trial court correctly heard husband's motion,

because the support award that pre-dated the amendment to the

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guidelines varied significantly from the presumptively correct

amount. Indeed, wife does not dispute that the nearly 50%

variation in husband's obligation was significant and that

husband was entitled to a modification hearing.

Having found that husband's evidence regarding his income

for the year in question had not materially changed, the court

recalculated child support based on the yearly income figure

determined at the April 1994 hearing. Holding husband's income

constant at $400,000, his presumptive support obligation under

the amended guidelines is $1,618.43 per month.
Husband asserts, however, that the court's use of that

income figure to calculate child support under the amended

guidelines was error and that the court should have applied the

figure it determined at the October 1995 hearing to be his yearly

income, to wit, $375,000. We disagree.

Under husband's theory, a party seeking a support

modification could achieve, through the back door, a result

barred by the front door. In this case, the court properly found

no material change in circumstance established by husband's

evidence of income for the year in question. The court's finding

on this issue, which we have affirmed, supra, is a finding of res

judicata. As such, the issue of husband's income could not be

properly addressed anew. Accordingly, having found no material

change in circumstance based on husband's income, the court

properly recalculated the child support award solely by applying

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the amended guidelines to the income amount it had determined in

April 1994. See Hiner, 15 Va. App. at 580, 425 S.E.2d at 814.

The court did not err in doing so.

C. SPOUSAL SUPPORT

The trial court found no material change in circumstance

with respect to wife's needs after the 1994 award. Wife does not

dispute this finding. Wife, however, argues that the court had

earlier found that her and the child's total household needs were

$7,000 per month. Accordingly, she contends that the court's

reduction in child support, pursuant to the amended guidelines,

is itself a material change in circumstance, warranting an

increase of spousal support to meet the $7,000 household need.
First, we disagree that the court had earlier determined an

aggregate "household" need in the amount of $7,000, which it then

apportioned between the child and spousal support amounts. To

the contrary, based on the record wife presents, it appears the

court first applied the child support guidelines and determined

the presumptive amount to be $3,279. It then determined wife's

needs supported a spousal support award of $3,721. The trial

judge then stated, "[This] is a total of child and spousal of

$7,000, which is what I figure now."

Obviously, the sum of the court's support awards equalled

$7,000. However, we decline to accept wife's argument that

preclusive effect is to be given to the sum of those awards.

Doing so would violate the well established principle that

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"[c]hild support and spousal support are separate and distinct

obligations based on different criteria." Lambert v. Lambert, 10

Va. App. 623, 628-29, 395 S.E.2d 207, 210 (1990) (child support

not to be considered in determining award of spousal support).

In light of this principle, a change in child support cannot be

deemed a circumstance "material" to a support award. 2 In the

absence of proof of a material change in circumstance, the court

was precluded by principles of res judicata from reevaluating the

spousal support award, see Hiner, 15 Va. App. at 580, 425 S.E.2d
at 814, and properly declined to modify it.

III. DEVIATION FROM PRESUMPTIVE AMOUNT

When determining a party's child support obligation, whether

initially or at a modification hearing, the court must begin by

computing the presumptive amount using the schedule found in Code

§ 20-108.2(B). Watkinson, 13 Va. App. at 158, 409 S.E.2d at 473;

Code § 20-108.1(B). 3 The presumptive amount is rebuttable, and
2
Furthermore, it cannot be argued that the trial judge was
inconsistent in finding that the "needs" had not changed but,
nevertheless, reducing the amount of child support. Contrary to
wife's position, the trial judge did not find that the aggregate
"household" need remained unchanged. Rather, she found the
child's needs would be met by the reduced award and wife's needs
remained unchanged.
3
Code § 20-108.1(B) provides, in part:

In any proceeding on the issue of determining
child support . . . the court shall consider
all evidence presented relevant to any issues
joined in that proceeding. The court's
decision in any such proceeding shall be
rendered upon the evidence relevant to each
individual case. However, there shall be a
rebuttable presumption in any judicial or

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the court may deviate from the presumptive amount if such amount

is determined to be unjust or inappropriate, in consideration of

any relevant evidence pertaining to the factors set forth in Code

§§ 20-107.2 and 20-108.1. Id. at 158, 409 S.E.2d at 473-74; Code

§§ 20-108.1(B), 20-108.2(A). 4 Moreover, we held in Watkinson

that where the application of the guidelines reduced the amount

of support payable pursuant to a consent decree entered prior to

the enactment of the guidelines, the court must explain why a

reduction in child support from the former award would not be

unjust and inappropriate. Id. at 161, 409 S.E.2d at 475.

"`Deviations from the presumptive support obligation must be

supported by written findings which state why the application of

the guidelines in the particular case would be unjust or

inappropriate.'" Wilson v. Wilson, 18 Va. App. 193, 196, 442
(..continued)
administrative proceeding for child support,
. . . that the amount of the award which
would result from the application of the
guidelines set out in § 20-108.2 is the
correct amount of child support to be
awarded. . . . The finding that rebuts the
guidelines . . . shall be determined by
relevant evidence pertaining to the following
factors affecting the obligation, the ability
of each party to provide child support, and
the best interests of the child.
4
Code § 20-108.2(A) provides, in part:

In order to rebut the presumption, the court
shall make written findings in the order
. . . that the application of the guidelines
would be unjust or inappropriate in a
particular case as determined by relevant
evidence pertaining to the factors set out in
§§ 20-107.2 and 20-108.1.

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S.E.2d 694, 696 (1994) (quoting Mayers v. Mayers, 15 Va. App.

587, 591-92, 425 S.E.2d 808, 810-11 (1993)).

In the present case, the trial court found the child's needs

would be met by the presumptive amount of support established by

the amended guidelines. The evidence of the child's needs

presented by wife, when adjusted according to the evidence

presented by husband, supports the trial court's finding that a

deviation from the presumptive amount was not warranted. That

evidence established that the child's needs were approximately

$2,000 per month. Husband's proportional share of that amount,

approximately 80%, coincides substantially with the presumptive

amount of his obligation determined pursuant to the amended

guidelines, to wit, $1,618.43. Accordingly, we find no basis to

conclude that the trial court erred in failing to determine that

the presumptive amount of child support was unjust or

inappropriate.
Wife did not dispute that the evidence presented at the

October 1995 hearing supported the finding that the child's needs

are approximately $2,000. Rather, wife relied on the court's

earlier support award of $3,279 as evidence of the child's needs.

We find no support for the proposition that the earlier

award was premised on anything but the presumptive guidelines

then in effect. Nothing indicates that either party requested

the court to deviate from the guideline amount to comport with

the child's actual needs. The basis of the prior award was the

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legislative presumption of the child's needs. The clear intent

of the amendment to the guidelines is that the legislature

presumed that children of parents in certain income brackets

needed less support than the amount deemed presumptively

appropriate under the prior guidelines. Here, the presumption

under the amended provisions is supported by the evidence of the

child's actual needs. 5

On appeal, wife argues that notwithstanding the fact the

child's needs did not exceed the presumptive amount, husband had

the means to provide support in excess of those needs and the

child had the right to share in husband's prosperity. Wife

failed to raise these contentions at trial, and we will not

consider them on appeal. See Rule 5A:18.

IV. RETROACTIVE MODIFICATION

Husband alleges the trial court erred in refusing to modify

support retroactively to July 1, 1995. We disagree.

"No support order may be retroactively modified, but may be

modified with respect to any period during which there is a

pending petition for modification, but only from the date that

notice of such petition has been given to the responding party."

Code § 20-108. Husband filed his petition for modification in

5
Wife argues that the parties' pendente lite consent decree
is evidence that the child's needs would not be met under the
amended guidelines. Even assuming consideration of that decree,
which was entered without prejudice, were proper, it does not
support wife's position. Under the decree, child support was
determined to be $2,000 per month.

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January 1995. The statutory amendments to the guidelines became

effective in July 1995. Husband did not amend his pleadings and

the issue of modification based on the amended guidelines was

addressed for the first time at the hearing in October 1995. At

that time, husband's next support payment was due November 1,

1995, the day in which the modified payments took effect. The

trial court complied exactly with the terms of the statute.

IV. ATTORNEY'S FEES
An award or denial of attorney's fees is a matter committed

to the sound discretion of the trial court. E.g., Alphin v.

Alphin, 15 Va. App. 395, 406, 424 S.E.2d 572, 578 (1992). Here,

the parties were found equally able to pay their own fees. The

record does not support a contrary finding. Furthermore, with

respect to the issues before us, we find no evidence that either

party created unnecessary delay or expense, and the issues raised

clearly do not lack merit. Accordingly, we find no basis to rule

that the trial court abused its discretion in failing to award

either party attorney's fees.

For the foregoing reasons, the decision of the trial court

is affirmed.
Affirmed.

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