COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Bray
Argued at Richmond, Virginia
BRADLEY SCOTT DeTUNCQ
MEMORANDUM OPINION * BY
v. Record No. 1433-00-2 JUDGE LARRY G. ELDER
MAY 8, 2001
ALISON DeTUNCQ
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
John K. Taggart, III (Patricia D. McGraw;
Tremblay & Smith, LLP, on briefs), for
appellant.
Ronald R. Tweel (William C. Scott IV; Michie,
Hamlett, Lowry, Rasmussen & Tweel, P.C., on
brief), for appellee.
Bradley Scott DeTuncq (father) appeals from a ruling of the
Circuit Court of Albemarle County (trial court) increasing his
monthly obligation to Alison DeTuncq (mother) for the support of
the parties' minor child. On appeal, he contends the trial
court erroneously calculated both his and mother's gross income
and erroneously refused his request for an award of attorney's
fees. We hold the trial court did not abuse its discretion, and
we affirm the award.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
In a hearing on a petition for modification of child
support, the burden is on the moving party to prove a material
change in circumstances that warrants a modification of support.
See, e.g., Yohay v. Ryan, 4 Va. App. 559, 566, 359 S.E.2d 320,
324 (1987). "Decisions concerning . . . [child] support rest
within the sound discretion of the trial court . . . ." Calvert
v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875, 876 (1994).
"The trial court's decision, when based upon credibility
determinations made during an ore tenus hearing, is owed great
weight and will not be disturbed unless plainly wrong or without
evidence to support it." Douglas v. Hammett, 28 Va. App. 517,
525, 507 S.E.2d 98, 102 (1998).
In computing a party's gross income from which child
support obligations are calculated, Code § 20-108.2(C) requires
the inclusion of "all income from all sources." Such income
includes bonuses, see Code § 20-108.2(C), but should not include
income "premised upon the occurrence of an uncertain future
circumstance," Jacobs v. Jacobs, 219 Va. 993, 995, 254 S.E.2d
56, 58 (1979) (applying this principle in the context of spousal
support). Such income also "shall be subject to deduction of
reasonable business expenses for persons with income from
self-employment, a partnership, or a closely held business."
Code § 20-108.2(C).
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A.
FATHER'S INCOME
Father claims the figures used by the trial court to
calculate his gross income were speculative because they were
based on possible future profits only and failed to take into
consideration, as required by statute, the reasonable business
expenses required to generate those profits. He also contends
the trial court should have used his net income for 1999, as
testified to by his company bookkeeper. We disagree.
First, the profits earned by father during the part of the
Dogwood Lane construction contract already performed were not
speculative. The evidence established that father had been
working pursuant to the Dogwood Lane contract for five full
months before the January 2000 modification hearing, and he
conceded that he had been receiving a draw during that time.
Furthermore, Rita Pace, father's bookkeeper, was able to compute
income and expense figures related to that contract for use on
father's 1999 federal income tax returns, although those returns
were not offered into evidence at the hearing. Although it is
true that father ultimately could lose money on the contract as
a whole, such a loss would provide father with a basis for
seeking a subsequent modification of the child support award;
that possibility did not render speculative the income father
had earned under the contract prior to the time of the support
hearing. See, e.g., Yohay, 13 Va. App. at 566, 359 S.E.2d at
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324 (noting that court modifying child support award must
consider "the present circumstances of both parties").
Second, the trial court acted within its discretion when it
determined father's monthly gross income to be $9,796. Although
Code § 20-108.2(C) provides that gross income calculations
"shall be subject to deduction of reasonable business expenses
for persons with income from self-employment," a parent seeking
such a deduction bears the burden of proving his entitlement to
those deductions to the satisfaction of the trier of fact.
Here, once mother offered evidence of father's gross business
revenue, the burden shifted to father to offer evidence (1) of a
different gross amount, if he disputed mother's figure, and (2)
of the amount of his reasonable business expenses to be deducted
from gross income. Here, father offered no direct evidence of
his gross receipts from the Dogwood Lane project during 1999 and
did not dispute mother's figures other than with his assertion
that they remained speculative until the entire contract had
been performed. Further, although father offered evidence of
his business expenses related to the Dogwood Lane project during
1999, the trial court, in its role of assessing witness
credibility, was entitled to reject that evidence, as testified
to by Rita Pace, who was both the company's bookkeeper and
father's girlfriend with whom he lived and shared expenses.
Father offered little supporting documentation for these
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expenses, choosing to rely almost exclusively on the
bookkeeper's testimony.
We recognize Supreme Court precedent that a trial court may
not "arbitrarily disregard uncontradicted evidence of
unimpeached witnesses which is not inherently incredible and not
inconsistent with the facts appearing in the record, even though
such witnesses are interested in the outcome of the case."
Hodge v. American Family Life Assurance Co., 213 Va. 30, 31, 189
S.E.2d 351, 353 (1972). However, this is not what occurred
here. Although Pace's testimony was not inherently incredible,
her statements regarding father's annual income and expenses
from 1996 to 1999 could be viewed as inconsistent with mother's
evidence of father's expenditures during those same years.
Thus, the trial court was entitled to question the veracity of
all of Pace's testimony even though mother did not offer
specific conflicting evidence of father's expenses on the
Dogwood project. The trial court's implicit rejection of Pace's
testimony was not improper, and without credible evidence of
father's business expenses, the court was entitled to use the
profit figure offered into evidence by mother.
The trial court also was not required to accept the income
figures father planned to use on his 1999 federal income tax
return. These figures, like the business deductions, came into
evidence through Pace, father's girlfriend, and father offered
no documentation to support these figures. Although the
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parties' separation agreement required the annual exchange of
income tax returns, it did not purport to provide that these
returns were the only acceptable evidence of the parties' income
for purposes of calculating child support.
Mother clearly did not agree with father's assertion that
his income tax figures were the most accurate indication of his
annual income, for she presented evidence tending to indicate
his earnings were greater than reflected by his tax returns,
based on both discrepancies between the deposits and withdrawals
from his only bank account and evidence of the things on which
he spent money and the amounts he spent. The trial court
accepted mother's argument, for it concluded that "[i]t . . .
appears . . . [father] was not forthright in the amount of his
true income." Although the trial court made this finding in
ruling on father's request for attorney's fees, it nevertheless
constitutes a finding relevant to our review of the court's
calculation of "the amount of [father's] true income."
Finally, even if the parties' separation agreement had
provided that their federal income tax returns were binding as
to their income for the purpose of determining child support, it
was the duty of the trial court to determine support pursuant to
the statute with the best interests of the child as "the
paramount and guiding principle," and it could not have been
bound by such an agreement. Watkinson v. Henley, 13 Va. App.
151, 158, 409 S.E.2d 470, 474 (1991).
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For these reasons, we hold the trial court did not abuse
its discretion in calculating father's "gross income" for child
support purposes.
B.
MOTHER'S INCOME
Father contends the trial court erroneously calculated
mother's income by failing to include a $3,000 bonus. We
disagree. The evidence indicated that mother received a $3,000
bonus in 1999, when her salary was $95,000, resulting in a total
annual income of $98,000. No evidence indicated that mother
could expect to receive a bonus in 2000, when her salary was
$101,000. Thus, the trial court did not err in concluding that
mother's income was $101,000. Cf. Smith v. Smith, 18 Va. App.
427, 434, 444 S.E.2d 269, 274 (1994) (holding that trial court
does not abuse its discretion in failing to include in parent's
gross income capital gains not realized contemporaneously with
child support hearing); Goldhamer v. Cohen, 31 Va. App. 728, 737
n.2, 525 S.E.2d 599, 603 n.2 (2000) (further interpreting
Smith); id. at 739, 525 S.E.2d at 604 (Elder, J., concurring)
(same). Any other figure would be speculative and would violate
the very principles that father advances so forcefully in regard
to the calculation of his own income.
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C.
ATTORNEY'S FEES
Father contends that he was entitled to an award of
attorney's fees because no evidence established that he was
dilatory in providing his 1998 income information to mother or
that the figures he provided were inaccurate. We hold the trial
court did not abuse its discretion in refusing to award
attorney's fees to father pursuant to the parties' agreement.
The agreement provides for an award of attorney's fees to a
"party whose position substantially prevails" or a
"non-breaching party" whose "position relative to such breach is
substantially maintained by settlement or court order." Here,
the evidence, viewed in the light most favorable to mother,
indicates that father was not a "prevailing" or "non-breaching
party" because he did not provide mother with his financial
information for 1996 through 1998 until sometime in 1999.
Further, father's position regarding the amount of his income
was not "substantially maintained" by order of the trial court
or this Court. Thus, the trial court did not err in refusing
father's request for an attorney's fees award.
II.
For these reasons, we hold the trial court did not abuse
its discretion in calculating father's or mother's gross income
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or in refusing father's request for an award of attorney's fees.
Thus, we affirm the trial court's ruling.
Affirmed.
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