dissenting.
I respectfully dissent because I believe that the trial judge correctly applied Virginia law when denying Yohay’s petition for a reduction in child support. Code § 20-108 states that “[t]he court may, from time to time . . . revise and alter such decree concerning the care, custody, and maintenance of the children and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children may require.”
At the conclusion of several days of ore tenus hearings and after reviewing briefs of counsel, the judge pro tempore made the following statement from the bench prior to hearing closing argument from counsel:
As I have briefly indicated to counsel in chambers, the Court on reviewing the briefs and arguments of law presented by counsel on the question of burden of proof, the Court rules as a matter of law that on Mr. Yohay’s petition for equalization of support the burden of proof is on Mr. Yohay to establish by the preponderance of the evidence that there has been a material change in the circumstances of the parties and that it would be in the best interest of the child to grant the relief sought. That ruling is based upon the Featherstone case and its progeny and its history.
Yohay’s counsel did not object to this statement by the judge. Moreover, I believe that one can reasonably conclude from the record there was no objection because counsel perceived that the judge in fact was addressing the Featherstone standard and that the judge had done no more than unintentionally misstate the re*571quirements of Code § 20-108.
In her brief in opposition to Yohay’s motion to reduce support payments, Ryan cited Featherstone v. Brooks, 220 Va. 443, 258 S.E.2d 513 (1979); and Hammers v. Hammers, 216 Va. 30, 216 S.E.2d 20 (1975) in support of her position that Yohay bore the burden of proving a material change in circumstances justifying a reduction in child support. Her brief contained no reference to a burden of proof standard which encompassed “the best interest of the child.” Furthermore, I believe that it is sufficiently clear from the following exchanges between Yohay’s counsel and the judge during closing argument that the phrase “best interest of the child” was used by both the judge and Yohay’s counsel as a loose, imprecise reference to the standard of Code § 20-108 (“the benefit of the children may require”) as interpreted in Featherstone:
THE COURT: And your argument on the burden regarding the best interest of the child is kind of a derivative one. Although there is no evidence that the child is in necessitous circumstances, there is no evidence before the Court that as a result of Mr. Yohay’s indebtedness the child is not receiving something that the child should not be receiving.
MR. ROSENFELD: There sure is. The evidence before this Court is the emergency of the financial destitudedness, financial problems that my client has. He is not going to be able to continue to provide his home for his child in the neighborhood and in the school area where the child goes, because he’s going deeper and deeper in debt every month and that’s going to be the effect of it. It is not speculative. He is going down the tubes. That’s how the child would benefit by the relief he is seeking, so he can maintain a home for the child’s needs.
THE COURT: Anything else?
MR. ROSENFELD: I’m not sure why the Court is limiting to 20-108 to the best interest of the child as opposed to the entire circumstance of the parties and —
THE COURT: (Interposing) I’ll tell you why and give you an opportunity to argue this. I see the case law — the line of cases in Virginia interpret that language to require a showing *572after material change of circumstances to the parties that the relief sought is in the best interest of the child. That’s the way I read the case law. I’m not sure that it would differ.
MR. ROSENFELD: Then the last case from the Supreme Court is the Featherstone case right out of this district that I have cited.
THE COURT: That’s right.
MR. ROSENFELD: That has shown the additional cost that Mr. Yohay has in meeting the needs of the child or material change of circumstances, but you have already found a material change of circumstances. What’s important is it is in the best interest of the child to enable my client to continue to be able to provide these things for his child, his cost of his housing or his cost of food, cost of soccer, music lessons. These are all the things that the Featherstone case based itself upon.
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MR. ROSENFELD: . . . The problem I’m having with the Court’s reasoning, when you look at the Featherstone case, the Featherstone case doesn’t exclude the circumstances of the parents. When I asked the Court earlier why are you only looking at the best interest of the child, Featherstone says, “We hold that this evidence establishes a material change in the condition and circumstances of the party and the chancellor, therefore, had the power and authority to revise and alter the original decree.” That’s right out of 20-108, saying the Court may revise and alter such decrees concerning the care and maintenance of the children and make a new decree concerning the circumstances of the parents and the benefit the children may require. Once the Court in Featherstone found a material change in circumstances —.
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MR. ROSENFELD: No. I want to apply the law. The law says under 108, as you have ruled, if you show a material change of circumstances, then we may alter and revise the decree based upon the conditions and circumstances of the *573parties in the best interest of the children, and there is only one guideline for the parties and best interest of the children and that’s 20-107.2 which are all the facts to consider and you start from scratch. When the Court finds there has been a material change of circumstances, then under 20-108 it can revise and alter the decree as to the circumstances of the party and what the children require and that’s what Feather-stone said. Featherstone said, “We hold that this evidence establishes a material change in the condition and circumstances of the party and the chancellor, therefore, had the power and authority to revise and alter the original decree.” That’s exactly the language of 20-108.
(emphasis added).
I believe that these passages demonstrate that although both the judge and Yohay’s counsel used the term “the best interest of the children,” the intended reference was actually to “the benefit of’ the child, the standard set forth in Code § 20-108.
Moreover, there is no basis upon which Yohay can now suggest that the judge in fact imposed upon him a greater burden of proof than that warranted by Featherstone. I am persuaded that the following quotation from the judge’s decision reflects a proper understanding of the law applicable to the case:
The law that applied in this case is clearly the law of Featherstone versus Brooks and the Hammer case, and in Feather-stone the Court said—and I quote—“We hold that this evidence establishes a material change in the conditions and circumstances of the parties and the chancellor, therefore, had the power and authority to revise and alter the decree.”
The Court finds as a matter of law that there have been changes in the circumstances as between the parties. Clearly the remarriage of Ms. Ryan and the increase in her income have been one of those changes in circumstances, as has been Mr. Yohay’s increase in income and his indebtedness. The Court finds as a matter of fact that the increase in Mr. Yohay’s indebtedness is as a result of both his litigation in this matter and in the ancillary but related matters regarding the domestic relations case, but also finds that Ms. Ryan had an equal burden, responsibility and obligation.
*574The Court has viewed the totality of the circumstances of the parties, their respective incomes and the needs of the child and the parties with regard to their individual financial situation and the respective needs of the parties to provide for those and, based upon the totality of the circumstances, the Court finds that there is no justification at this time for any change or alteration in the amount of support being required under the terms of the separation agreement and of the Final Decree of Divorce.
If there could be any doubt as to the standard of proof employed by the judge, I believe it was dispelled when the judge decided Yohay’s motion for reconsideration of the ruling. In the motion for reconsideration Yohay alleged that the judge misstated the burden of proof when he “extrapolated” from Featherstone and Code § 20-108 that Yohay’s burden was to prove what was in “the best interest of the child.” The trial judge received briefs from the parties, granted the motion to reconsider, and heard oral argument from both counsel. The following exchanges which occurred during the argument on the motion amply demonstrate that the judge understood the precise issue to be decided, but that Yohay’s counsel continued to use imprecise language concerning the burden of his client:
MR. ROSENFELD:
* * *
The Court, in fact, found that the burden had been carried that yes, there has been a material change in circumstances in Stephen Yohay’s financial position, and there’s been a material change of circumstances in Pat Ryan’s financial circumstances referencing her remarriage, her increase in her income.
THE COURT: That’s all conceded. That’s part of the Court’s findings that there have been material changes in circumstances. That’s not an issue.
What is in issue is whether or not those material changes in circumstances justify an increase, justify modification in the underlying Separation and Support Agreement executed by *575the parties. And it’s the issue of justification that we’re all having difficulty.
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THE COURT: Now, I also find that, and there’s no debate, that Mr. Yohay’s income over the period of time between the execution of the agreement and now has substantially increased. So if you, as the moving party, are looking to a material change in circumstances which might justify, and those are the words, which might justify a change in support, then the only other material circumstance that you can look to is Miss Ryan’s remarriage and Miss Ryan’s increase in income; right?
MR. ROSENFELD: And the need she has for support.
THE COURT: And the need she has for support.
MR. ROSENFELD: And the needs of the child.
THE COURT: And the needs of the child.
Following the hearing the judge entered an order affirming the previous ruling denying a reduction in support. I believe that the record clearly reflects that despite the imprecise language used by the judge and Yohay’s counsel, the judge premised his decision upon “the circumstances of the parents and the benefit of the children” as required by Code § 20-108. See Featherstone v. Brooks, 220 Va. 443, 446-47, 258 S.E.2d 513, 515 (1979) (“the burden rests upon the party seeking to alter the decree to establish [a material change in circumstances] by a preponderance of the evidence”); Hammers v. Hammers, 216 Va. 30, 32, 216 S.E.2d 20, 21-22 (1975) (burden is to prove a material change “which justified a reduction in the payments”).
Finally, the record reflects that in 1981, at a time when his salary was significantly less than it was in 1985, Yohay, entered into the separation agreement to pay $600 monthly child support even though (i) he had joint custody of his son, (ii) his son might have been spending the majority of his time in Yohay’s household, and (iii) Yohay knew that $600 monthly was in excess of the needs of *576his son. Also, in accordance with the separation agreement, Yohay was responsible for private school tuition at an annual cost of approximately $3000; at the time of the hearings in 1985, Yohay had been relieved of that financial obligation.
In assessing whether the change in circumstances, especially the significant increase in Yohay’s income, had any bearing with respect to “the benefit” of the child and justified a reduction in child support, the judge did not err in giving significant weight to the intent of the parties, as expressed in the 1981 agreement. It was that agreement which initially established the $600 monthly child support and other benefits. Thus, the judge properly viewed the $600 monthly payment within the context of the separation agreement and the parties’ 1981 incomes in order to assess whether the request for reduction in payments was justified by the changed circumstances as they existed in 1985.
Moreover, the trial judge did not state that the separation agreement precluded him from exercising his authority under Code § 20-108. See Featherstone v. Brooks, 220 Va. 443, 446, 258 S.E.2d 513, 515 (1979) (contract between parties cannot prevent court from exercising authority under Code § 20-108); Carter v. Carter, 215 Va. 475, 481, 211 S.E.2d 253, 258 (1975) (separation agreement cannot preclude exercise of statutory authority under Code § 20-108). Rather, the judge found that Yohay failed to prove “that the changes in circumstances, the totality of the change in circumstances of the parties, justifies a reduction in support.”
For these reasons I would affirm the decision of the trial judge.