COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Humphreys
Argued at Alexandria, Virginia
GLEN S. SINES
MEMORANDUM OPINION * BY
v. Record No. 0233-01-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JANUARY 29, 2002
KATHERINE S. SINES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
R. Terrence Ney, Judge
Carl P. Horton for appellant.
(Dana James Carlson; Hale, Hassan, Carlson &
Penn, P.L.C., on brief), for appellee.
Glen Sines (husband) appeals the trial court's decision
denying his request for modification of his child support
payment to Katherine S. Sines (wife). He contends that (1) the
trial court erred in using the June 18, 1999 consent decree as
the date to measure the requisite change of circumstances and
(2) it was an abuse of discretion to grant wife's motion to
strike for husband's failure to prove a material change of
circumstances warranting a reduction in support. Finding no
error, we affirm. 1
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
Husband lists six questions presented, but they are
subsumed in those listed.
I. BACKGROUND
"On review, we consider the evidence in the light most
favorable to the party prevailing in the trial court."
Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28,
31 (1989).
So viewed, the evidence established that on January 31,
1996, the parties entered into an agreed support order that
required husband to pay for the parties' two children "One
Thousand Dollars ($1,000.00) per month, beginning January 7,
1996, and to be paid on the 7th day of each month thereafter
until each child attains the age of eighteen (18), dies, marries
or otherwise becomes emancipated." On June 18, 1999, the trial
court entered a new consent order which stated in paragraph six
that, "Neither party shall seek a modification of support based
upon the change in [sic] current visitation schedule to the
proposed schedule, except as for the actual child care
expenses." On August 1, 2000, husband filed a motion to reduce
the child support payments on the ground that a change of
circumstances had occurred since entry of the June 18, 1999
consent decree.
On December 7, 2000, the trial court heard appellant's
motion to reduce child support. As the basis for his request to
reduce his support, husband argued that there had been an
increase in wife's income, a reduction in her child care
expenses, and an increase in his child care expenses because of
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his increased time with the children. Husband in his request
for modification, as well as at the hearing, used the June 18,
1999 consent order as the benchmark to determine a change of
circumstances.
The trial court noted that the consent order entered into
by the parties barred husband's current argument that a change
in husband's time with the children could be used as a basis for
a change in child support. The court stated "[i]f Mr. Sines can
testify to an increase in child care expenses since June 18,
1999, I’ll permit him to do so; but it has got to be a specific
item . . . ." The court then specified, "[i]t has got to be
employment-related child care expenses." Husband responded that
he "has none."
Wife, who was called as husband's first witness, testified
that after the June 18, 1999 consent order, she worked part time
as a waitress in addition to her employment at Dudley Martin
Chevrolet where she received a $1.06 per hour raise and $540 in
overtime. She projected her salary as a waitress to be
approximately $3,300 per year. Wife stated that her mother, who
took the children to school, had mechanical problems with her
car which required wife to purchase a truck for her mother so
that the children would have a reliable source of transportation
to and from school. The monthly payment on the truck was $289
per month. The evidence established that husband's income had
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increased at a rate greater than wife's and that his day-care
obligations had not increased.
The trial court found that husband failed to prove the
material change in circumstances necessary to allow modification
of child support and granted wife's motion to strike. The trial
court's finding was "based upon the circumstances having changed
since June of 1999." Using that benchmark date and looking at
the evidence presented, the court commented that, "not any
single one of the points, shows that the burden has been met to
show that a change of circumstances has been warranted." The
judge stated that "Mr. Sines recognizes that the benchmark for
examining the change of income is from June of 1999." The court
found that husband had no child care expenses and that wife's
purchase of the truck was not a gift and was a child care
expense. Finally, using the June 18, 1999 date, the trial court
found that the increase in wife's yearly income from $32,240 to
$34,445 at Dudley Martin Chevrolet and the $3,300 from her job
as a waitress "is not material."
II. STANDARD OF REVIEW
"'The trial court's decision, when based upon an ore tenus
hearing, is entitled to great weight and will not be disturbed
unless plainly wrong or without evidence to support it.'" Orlandi
v. Orlandi, 23 Va. App. 21, 28, 473 S.E.2d 716, 719 (1996)
(quoting Venable v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646,
651 (1986)).
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III. MOTION TO STRIKE APPELLANT'S CASE
"The standard under which a trial court
should review the evidence adduced at trial
before granting a motion to strike the case
at the end of a plaintiff's evidence is well
settled under prior decisions of this Court.
That standard requires the trial court to
accept as true all the evidence favorable to
the plaintiff as well as any reasonable
inference a jury might draw therefrom which
would sustain the plaintiff's cause of
action. The trial court is not to judge the
weight and credibility of the evidence, and
may not reject any inference from the
evidence favorable to the plaintiff unless
it would defy logic and common sense."
Claycomb v. Didawick, 256 Va. 332, 335, 505 S.E.2d 202, 204
(1998) (citation omitted). "In cases involving a consent decree
agreeing to child support or a property settlement agreement
providing for child support, the court's continuing authority to
modify child support may be exercised only upon a showing of a
material change in circumstances." Orlandi, 23 Va. App. at 26,
473 S.E.2d at 718-19 (emphasis added). "'[I]n order to entertain
a petition to increase, decrease, or terminate child support, [a
trial court must] . . . make a threshold finding that a material
change of circumstance has occurred since the last award or
hearing to modify support.'" Id. at 28, 473 S.E.2d at 719-20
(quoting Hiner v. Hadeed, 15 Va. App. 575, 579, 425 S.E.2d 811,
814 (1993)). "[W]here no material change in circumstance has
occurred since the last modification hearing in which the support
guidelines presumably had been considered, the principles of res
judicata bar the trial judge from reconsidering the child support
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award." Hiner, 15 Va. App. at 577, 425 S.E.2d at 812. Hence, a
material change of circumstance is "a condition precedent to the
modification of child support." Head v. Head, 24 Va. App. 166,
175, 480 S.E.2d 780, 785 (1997). "In a petition for modification
of child support and spousal support, the burden is on the
moving party to prove a material change in circumstances that
warrants modification of support." Richardson v. Richardson, 31
Va. App. 341, 347, 516 S.E.2d 726, 729 (1999).
Husband first contends that the trial court should have used
the date of the initial support order, January 7, 1996, rather
than June 18, 1999, the date of the most recent order to determine
the time period for proof of a material change in circumstances.
This argument is without merit, and husband cites no authority for
this proposition.
In his motion to reduce child support, husband asserted
that, "there has been a change in circumstances since entry of
that [June 18, 1999] order . . . ." Further, he stipulated for
the record that the June 18, 1999 date was the appropriate date
to measure a change of circumstances when he said, "Judge, I did
that," in response to the trial court's question about the date.
"The [appellant] having agreed upon the
action taken by the trial court, should not
be allowed to assume an inconsistent
position." Clark v. Commonwealth, 220 Va.
201, 214, 257 S.E.2d 784, 792 (1979), cert.
denied, 444 U.S. 1049, 100 S. Ct. 741, 62
L.Ed.2d 736 (1980). "No litigant . . . will
be permitted to approbate and reprobate -- to
invite error . . . and then to take advantage
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of the situation created by his own wrong."
Fisher v. Commonwealth, 236 Va. 403, 417, 374
S.E.2d 46, 54 (1988), cert. denied, 490 U.S.
1028, 109 S. Ct. 1766, 104 L.Ed.2d 201
(1989).
Manns v. Commonwealth, 13 Va. App. 677, 679-80, 414 S.E.2d 613,
615 (1992). Thus, the evidence for a modification of husband's
support obligations was properly measured from that date.
Husband next contends that the trial court erred in
granting the motion to strike because the evidence as a matter
of law proved a material change of circumstances. We disagree.
Credible evidence supports the trial judge's findings that while
there had been some change in income, it was not material.
Although wife had an increase in salary, husband's salary had
increased to a greater extent. The court found husband had no
day-care expenses because "[h]e so testified under oath." The
trial court further found that the purchase of the truck was not a
gift and, thus, wife's child care expenses were not reduced. The
trial court was not plainly wrong in its determination that no
change of circumstances existed.
Next husband argues that the June 18, 1999 consent order
violates the rule enunciated in Kelley v. Kelley, 248 Va. 295,
449 S.E.2d 55 (1994), that parents cannot contract away their
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children's right to support. This argument is barred by Rule
5A:18 as it was not presented to the trial court. 2
IV. ATTORNEY'S FEES
"An award or denial of attorney's fees is a matter committed
to the sound discretion of the trial court." Alphin v. Alphin, 15
Va. App. 395, 406, 424 S.E.2d 572, 578 (1992). "The key to a
proper award of fees is 'reasonableness under all of the
circumstances revealed by the record.'" Ragsdale v. Ragsdale, 30
Va. App. 283, 297, 516 S.E.2d 698, 705 (1999) (quoting Westbrook
v. Westbrook, 5 Va. App. 446, 458, 364 S.E.2d 523, 530 (1988)).
We find no abuse of discretion in the award of attorney's fees at
trial as wife was the prevailing party and the record shows need
and ability to pay. Wife has requested attorney's fees for
matters relating to this appeal. Also, upon consideration of the
entire record in this case, we hold that wife is entitled to a
reasonable amount of additional attorney's fees, and we remand for
an award of further costs and counsel fees incurred in this
appeal.
2
Husband also argues that the trial judge erred in failing
to consider the presumptive amount of child support. The record
shows that the trial court did consider the guidelines submitted
by counsel; however, because appellant failed to show a material
change of circumstances, no further action on the guidelines was
necessary.
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For the foregoing reasons, we affirm the trial court's grant
of the motion to strike and remand for consideration of counsel
fees on appeal.
Affirmed and remanded.
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