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DeTUNCQ

MAY 8, 2001

Record No. 1433-00-2

Present: Judges Willis, Elder and Bray

Argued at Richmond, Virginia

BRADLEY SCOTT DeTUNCQ

ALISON DeTUNCQ

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY

Paul M. Peatross, Jr., Judge

MEMORANDUM OPINION[1] BY JUDGE
LARRY G. ELDER

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.

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).

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 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 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
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).

For these reasons, we hold the trial court did
not abuse its discretion in calculating father’s "gross
income" for child support purposes.

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.

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

or in refusing father’s request for an award of
attorney’s fees. Thus, we affirm the trial court’s ruling.

Affirmed.

FOOTNOTES:

[1] Pursuant to Code ? 17.1-413, this opinion is not
designated for publication.

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