Home / Uncategorized / MELANIE T. KAPLAN v. IRWIN D. KAPLAN



Present: Judges Benton, Elder, and Annunziata
Argued at Richmond, Virginia

v. Record No. 2435-94-2 JUDGE JAMES W. BENTON, JR.
JANUARY 23, 1996

F. Ward Harkrader, Jr., Judge

Sylvia Clute for appellant.

Murray J. Janus (Deanna D. Cook; Bremner,
Baber & Janus, on brief), for appellee.

Melanie T. Kaplan appeals from a judgment decreasing the
amount of child support to be paid by Irwin D. Kaplan for their
two children. She also contends the trial judge erred in
refusing to award her attorney’s fees and costs. For the reasons
that follow, we affirm the judgment.
The evidence proved that during the marriage, the father
sold his retail clothing business and entered into an employment
contract on June 30, 1989, with the purchaser. The contract
provided that he would receive a base salary of $270,000 per year
from July 1, 1989 through January 31, 1995, with an increase of
$10,000 per year beginning February 1, 1992. The contract
contained a non-competition clause preventing the father from
working in a related business for a three-year period after
termination of the contract. In April 1992, the parent company
of the corporation that paid the father’s salary was in

– 2 –
The evidence also proved that the father and mother entered
into a Property Settlement Agreement dated November 13, 1992.
The agreement resolved issues of spousal support, property
distribution, child custody, and child support. The father
agreed to pay as support for the children $2,000 per month per
child, private school expenses, college expenses, and other
In September 1993, the father entered into a modified
contract with the corporation paying his salary. He testified
that the corporation had ceased doing business and was in poor
financial condition. He further testified that because the
corporation’s finances threatened future salary payments, he “had
no choice but to make an agreement with them.” Under the
modified contract, the father’s employment was to be terminated
January 15, 1994. The modified contract also provided for a less
restrictive non-competition clause.
On November 1, 1993, the father filed a bill of complaint
seeking a divorce. The bill of complaint stated that a Property
Settlement Agreement existed, alleged that a material change in
circumstances had occurred with respect to the children, and
requested that a fair and reasonable amount of child support be
set taking into consideration the statutory support guidelines.
As a result of discussions by the parties during the course of
the litigation, the father abandoned his request to modify the
monthly child support amount. The father and the mother asked

– 3 –
the trial judge to incorporate by reference the agreement into
the final divorce decree. A final divorce decree was entered
December 22, 1993, and it affirmed, ratified, and incorporated by
reference the agreement.
Just over a month after entry of the divorce decree, the
father filed a petition for reduction of child support. In his
petition, he alleged that “as of January 15, 1994, [his] employer
ceased its business operations in Virginia and [his] employment
was terminated and therefore he is not gainfully employed at the
present time.” In response, the mother alleged that “no change
in circumstances [had occurred] that [was] not known to the
[father] at the time of the entry of the final decree of
divorce.” She also alleged that the father misled the trial
judge when he claimed he had been terminated from his job and had
no present income. The mother asserted that she was entitled to
attorney’s fees because of fraudulent representations.
After an evidentiary hearing, the trial judge reduced the
father’s monthly child support payments and made the following
[T]here has been a substantial change in
circumstances, . . . the [father] has
suffered an involuntary reduction in his
earned income; that his total gross income
presently is $14,800 per month, $8,600 of
which is earned and $6,200 of which is
unearned; that the [mother’s] average gross
income is $4,841 per month, making a total
monthly gross income of $19,641, which comes
to a combined guideline support figure of
$3,023 per month for two children; that the
[father’s] percentage of the gross income is
75% leaving a guideline support figure of

– 4 –
$2,267 per month. . . .

Accordingly, the trial judge ordered the father to pay $2,267
monthly child support. The trial judge also denied the mother’s
motion for sanctions and attorney’s fees. The mother appealed
from the judgment.
In Virginia, a trial judge may adjust child support payments
when the petitioning party has proven by a preponderance of the
evidence a material change in circumstances. Featherstone v.
Brooks, 220 Va. 443, 446-47, 258 S.E.2d 513, 515 (1979). “Where
a party has demonstrated a material change in circumstance, the
trial [judge] must determine whether that change justifies a
modification in the support award by considering ‘the present
circumstances of both parties and the benefit of the children.'”
Watkinson v. Henley, 13 Va. App. 151, 156, 409 S.E.2d 470, 473
(1991)(citation omitted). Thus, an agreement or decree regarding
child support can never permanently fix the amount of support.
Code ? 20-108; Featherstone, 220 Va. at 446, 258 S.E.2d at 515.
The mother contends that no change in circumstances occurred
after entry of the final decree because the father had prior
knowledge of his eventual loss of employment. She also argues
that the doctrine of res judicata prevented the trial judge from
considering the husband’s petition for a modification of support.
The father asserts that the termination of his job in January
1994 constituted a material change in circumstances and justified
a reduction in his payments.

– 5 –
The parties agree that the issue of a change in the child
support payments was initially raised when the father filed his
bill of complaint for divorce. The record before the trial judge
established, however, that the parties discussed the issue during
the divorce proceedings, could not agree upon a satisfactory
change, and joined in the request to the trial judge to
incorporate by reference the agreement they negotiated in
November 1992. Although the father knew when he filed the bill
of complaint that his employment would be terminated in January
1994, he remained employed throughout the divorce proceedings and
was still employed when the divorce decree was entered
incorporating the parties’ agreement.
The mother provides no support for her argument that the
father’s knowledge of his future change in income required action
by the father at the time of the divorce. The principle is well
established that a material change in circumstances requires an
actual change. Featherstone, 220 Va. at 446, 258 S.E.2d at 515;
Watkinson, 13 Va. App. at 156, 409 S.E.2d at 472-73.
An agreement by parties regarding the support of minor
children has a characteristic that is significantly different
from contracts generally. When parties contract concerning their
property, spousal support, and related aspects of their affairs
and file the contract with the court before entry of the divorce
decree, “no decree or order directing the payment of support and
maintenance for the spouse, suit money, or counsel fee or

– 6 –
establishing or imposing any other condition or consideration,
monetary or nonmonetary, shall be entered except in accordance
with that . . . contract.” Code ? 20-109. Unlike those
contracts, any agreement that the parties reach regarding minor
children may be modified by a judge “from time to time . . . , as
the circumstances of the parents and the benefit of the children
may require.” Code ? 20-108; Hammers v. Hammers, 216 Va. 30, 31,
216 S.E.2d 20, 21 (1975). The issue of foreseeability of a
change in condition, therefore, has significantly less impact in
matters concerning child support.
The divorce court’s continuing jurisdiction to modify and
change a decree affecting support of a minor child may be invoked
“if a material change in condition and circumstance has occurred”
and despite the parties’ previous agreement. Featherstone, 220
Va. at 446, 258 S.E.2d at 515 (emphasis added). Because support
orders “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 part[ies],” Code ? 20-108, a party can claim no
prejudice when a trial judge rules that a change in circumstances
has occurred even though that change might have been foreseen at
an earlier time. We, therefore, hold that the trial judge did
not err in concluding that the date of the actual change in the
father’s salary was the time when the change in circumstances

– 7 –
In addition, we uphold the trial judge’s ruling that the bar
of res judicata does not apply. “The bar of res judicata
precludes relitigation of the same cause of action, or any part
thereof, which could have been litigated between the same parties
and their privies.” Smith v. Ware, 244 Va. 374, 376, 421 S.E.2d
444, 445 (1992). “In the absence of a material change in
circumstances, reconsideration of support that has been
previously adjudicated . . . would be barred by principles of res
judicata.” Hiner v. Hadeed, 15 Va. App. 575, 580, 425 S.E.2d
811, 814 (1993). Although the father’s bill of complaint for
divorce alleged a change in circumstances, that issue was never
litigated during the divorce proceeding. The parties requested
that the trial judge incorporate by reference the agreement into
the divorce decree without litigating the issue of the change in
circumstances. The record clearly establishes that the matter of
the impending change in the father’s employment status was
neither pursued as an issue nor decided during the divorce

1Moreover, the evidence in the record suggests a dual nature of
the change that the father conclusorily alleged in the pleadings.
The bill of complaint alleges “[t]hat since the Property
Settlement Agreement there has been material changes in
circumstances with respect to the children.” The wife’s answer to
the bill admits the allegation of a change in circumstances and
alleges that the parties were both aware “that the relationship
between the children of the parties, especially their daughter,
and the [father] has seriously deteriorated since the parties
entered into the . . . agreement.” At the hearing on his later
petition to modify support, the father testified that his
relationship with his daughter had grown volatile. He also
testified, however, that the issue that concerned him when he
filed the bill of complaint was his future salary termination.

– 8 –
When the father filed his petition on January 28, 1994, he
alleged that a change in circumstances occurred January 15, 1994,
when his salary was terminated. The trial judge found that the
father’s salary had been terminated, that the change was
material, and further that the change justified a modification of
child support. See Yohay v. Ryan, 4 Va. App. 559, 566, 359
S.E.2d 320, 324 (1987). The trial judge’s finding of a change in
circumstances was not “plainly wrong or unsupported by the
evidence.” Smith v. Smith, 18 Va. App. 427, 433, 444 S.E.2d 269,
274 (1994).
The trial judge heard ore tenus the parties’ evidence
concerning the father’s finances. The mother claimed that a
fraud was being committed. When we view the evidence in the
light most favorable to the father, who prevailed at trial,
Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28,
30 (1989), and grant great weight to the trial judge’s findings,
Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630,
631 (1988), we conclude that the evidence failed to prove that a
fraud was committed. The trial judge’s findings are not plainly
wrong. Id.
We uphold the trial judge’s decision reducing the father’s
support obligation because the evidence supports the reduction
and does not prove that the trial judge abused his discretion in
determining the amount of support. Schoenwetter, 8 Va. App. at
606, 383 S.E.2d at 31. The evidence proved that the father

– 9 –
suffered a substantial diminution in salary in January 1994. The
mother argued that the father voluntarily relinquished salary in
return for the elimination of the non-competition clause and
cited Antonelli v. Antonelli, 242 Va. 152, 409 S.E.2d 117 (1991),
as a bar to his request for reduction. The trial judge found,
however, that the father “suffered an involuntary reduction in
his annual income.”
We conclude that the evidence in the record concerning the
bankruptcy of the corporation and the financial difficulties that
caused the father to renegotiate the arrangement supports the
trial judge’s finding that the reduction was involuntary.
Although the father had other sources of income and accepted
employment for $8600 per month, the loss of income provided
sufficient grounds for the trial judge to lower the father’s
child support payments. Accordingly, we find no error.
Attorney’s fees and costs may be awarded in child support
modification cases. Edwards v. Lowry, 232 Va. 110, 114, 348
S.E.2d 259, 262 (1986). However, an award of attorney’s fees and
costs is within the sound discretion of the trial judge. Graves
v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). The
trial judge’s findings that the father did not act in bad faith
is supported by the evidence. Based upon the evidence in the
record and that finding, we hold the trial judge did not abuse
his discretion in refusing to award attorney’s fees or costs.
For these reasons, we affirm the judgment.

– 10 –