COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Benton and Elder 

Argued at Richmond, Virginia 

DANIEL T. STREET 

 MEMORANDUM OPINION* BY 

v. Record No. 1940-95-4 JUDGE LARRY G. ELDER 

 JANUARY 21, 1997 

JOYAL C. STREET 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Rosemarie Annunziata, Judge 

 M. Lee Anne Washington (Surovell, Jackson, 

Colten & Dugan, P.C., on briefs), for 

appellant. 

 Richard J. Byrd (Byrd, Mische, Bevis, Bowen, 

Joseph & O'Connor, P.C., on brief), for 

appellee. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 

 Daniel T. Street (husband) appeals the trial court's orders 

denying his motion to modify pendente lite support and awarding 

equitable distribution, spousal support and child support in his 

divorce from Joyal C. Street (wife). For the reasons that 

follow, we affirm. 

 I. 

 FACTS 

 The parties were married in 1969, separated in 1992 and 

divorced in 1995. They had five children, two of whom were 

unemancipated at the time of the divorce. In February, 1993, the 

trial court entered a pendente lite support order that directed 

husband to pay $2,000 per month for spousal and child support, 
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$200 per month for utilities in the marital home, and the entire 

monthly mortgage payment on the marital home. In August, 1994, 

husband moved the trial court to decrease his pendente lite

support obligations. During a meeting in chambers with the trial 

judge, both parties proffered their evidence regarding the 

motion. Husband proffered that he had experienced a change in 

his financial ability to make his pendente lite support payments 

because his business had declined and less cash was available. 

Wife proffered that the original pendente lite order was the 

result of a counseled agreement between the parties, that the 

needs of herself and the children had not changed, and that she 

was unable to work due to her continuing treatment for cancer. 

The trial court denied husband's motion to modify pendente lite

support and moved the case to a final hearing, stating that its 

general policy regarding such motions was to refrain from 

modifying pendente lite orders and to instead schedule a final 

hearing for the resolution of all issues in the case. Husband 

did not object to the trial court's ruling. 

 On April 24, 25, and May 2, 1995, the trial court heard 

evidence on the issues of equitable distribution, spousal support 

and child support. The only marital assets for the purposes of 

equitable distribution were the husband's carpet installation 

business (business) and the marital home. On May 18, the trial 

court ruled from the bench that the business had a value of 

$160,000 and that the marital home was worth $142,000. It 
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awarded the business to husband, the house to wife, and ordered 

husband to pay the difference, minus wife's share of a joint tax 

liability, in monthly installments. The trial court also found 

that husband's monthly income was $7,639, comprised of $6,139 

from his business and an additional $1,500 from "side jobs" not 

reported on the books of his business. The trial court found 

that wife had no income. Based on these figures, the trial court 

ordered husband to pay $2,300 per month in spousal support and 

$921 per month in child support. 

 II. 

 MODIFICATION OF PENDENTE LITE SUPPORT 

 Husband contends that the equitable distribution award 

should be reversed and remanded for a new hearing because the 

trial court erroneously denied his motion to modify pendente lite

support, and this error adversely affected the valuation of his 

business. Specifically, husband argues that the trial court 

abused its discretion when it refused to hold a hearing on his 

motion. We disagree. 

 Divorce courts have statutory authority to make pendente

lite orders to provide for inter alia spousal and child support. 

See Code § 20-103. An order for pendente lite support is an 

interlocutory order. See Pinkard v. Pinkard, 12 Va. App. 848, 

851, 407 S.E.2d 339, 341 (1991); Beatty v. Beatty, 105 Va. 213, 

215, 53 S.E. 2, 3 (1906). A trial court has the power to modify 

an interlocutory order prior to the entry of a final order in a 
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case. See Richardson v. Gardner, 128 Va. 676, 685, 105 S.E. 225, 

228 (1920); see also Pinkard, 12 Va. App. at 853, 407 S.E.2d at 

342 (stating that "[t]he matter of pendente lite support remains 

within the control of the court and the court can change its mind 

while the matter is still pending before it"). However, an order 

of pendente lite support has the effect of res judicata as to the 

facts existing at the time the motion for such support was made, 

and a spouse seeking modification of pendente lite support must 

show a material change of circumstances subsequent to the entry 

of the pendente lite order that warrants the relief sought. See

24 Am. Jur. 2d Divorce and Separation § 583 (1983). In addition, 

unlike a motion to modify a final order of spousal or child 

support, "the reopening of [an interlocutory order] is not a 

matter of right, but rests in the sound discretion of the [trial 

court]." Hurley v. Bennett, 163 Va. 241, 250, 176 S.E. 171, 174 

(1934). 

 Assuming without deciding that husband preserved his appeal 

of this issue, we hold that the trial court did not abuse its 

discretion when it denied husband's motion to modify pendente

lite support without holding a hearing. On appeal, a final order 

in a divorce case will not be reversed because of a trial court's 

decision regarding pendente lite support unless the record shows 

that the pendente lite decision was an abuse of discretion and 

that this error adversely affected the final order in the case. 

See Pinkard, 12 Va. App. at 853, 407 S.E.2d at 341. The record 
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does not indicate that the trial court's decision was arbitrary. 

 First, husband did not proffer that his purported change in 

circumstances warranted a modification of the pendente lite

order. Although husband proffered that a decline in his business 

had reduced his ability to pay his pendente lite support 

obligations, the trial court could not determine from his proffer 

either the substantive nature of his current ability to pay or 

whether his inability to pay was caused by his own voluntary act 

or neglect. In addition, wife proffered that her needs and the 

needs of the children were unchanged and that she was unable to 

support herself because of her ongoing treatment for cancer. 

Finally, at the time of husband's motion, the case had been 

pending for over a year and a half. Based on the proffers of the 

parties and the trial court's legitimate concern for the 

efficient resolution of the case, we cannot say that the trial 

court abused its discretion when it declined to reopen the issue 

of pendente lite support and instead moved the case to a final 

hearing. See Richardson, 128 Va. at 685, 105 S.E. at 228 

(stating that interlocutory orders are generally reconsidered 

only "when considerations of justice require it"). 

 III. 

PRESERVATION OF ISSUES FOR APPEAL BY HUSBAND 

 Regarding the trial court's valuation of the marital home, 

the record shows that husband stated a general exception in the 

final decree of divorce to the trial court's award of equitable 
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distribution "and the bases set forth therefore." The award of 

the trial court states numerous findings on which it based its 

decision, and the record reveals no instance in which husband 

stated that a ground for his objection was that the trial court 

improperly valued the marital home. Significantly, both the 

transcript of the proceedings and husband's motion for 

reconsideration contain no argument by husband's counsel on this 

issue. Husband's vague exception to the "bases" for the trial 

court's award, without more, was inadequate to provide the court 

with the opportunity to rule intelligently on the correctness of 

its valuation. Although counsel for a party may satisfy Rule 

5A:18 by including an objection and reasons therefor in the trial 

court's final order, a mere statement in an order that it is 

"seen and objected to" is insufficient. Lee v. Lee, 12 Va. App. 

512, 515-16, 404 S.E.2d 736, 738 (1991); Konefal v. Konefal, 18 

Va. App. 612, 615, 446 S.E.2d 153, 154-55 (1994) (statement in 

final order stating that husband "duly excepts" with no other 

indication in the record of the grounds for his objection fails 

to satisfy Rule 5A:18). 

 On the other hand, we hold that husband properly preserved 

his appeal regarding the trial court's finding of income from 

side jobs, child and spousal support, and its valuation of his 

business. Unlike the issue involving the value of the marital 

home, the record shows that husband adequately made known to the 

trial court his position regarding these issues. 

 Arguments made at trial via written pleading, 
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memorandum, recital of objections in a final 

order, oral argument reduced to transcript, 

or agreed written statement of facts shall, 

unless expressly withdrawn or waived, be 

deemed preserved therein for assertion on 

appeal. 

Code § 8.01-384 (emphasis added). Regarding income from side 

jobs, husband's counsel argued to the trial court in his closing 

argument on May 2 that the evidence was insufficient to prove 

that husband regularly received income from jobs not reported on 

the books of his business. This argument, which was reduced to 

transcript, in combination with the exception taken by husband's 

counsel and noted by the trial court in the final decree gave the 

trial court the opportunity to rule intelligently on the issue 

and satisfied the purpose of Rule 5A:18. Kaufman v. Kaufman, 12 

Va. App. 1200, 1204, 409 S.E.2d 1, 3 (1991) (holding that appeal 

not barred where appellant made known to trial court his position 

through memoranda and other written correspondence and court 

noted general objection in decree). Obviously, the determination 

of husband's monthly income had a direct effect on spousal and 

child support. 

 Similarly, following the testimony of husband's expert on 

the valuation of the business, husband's counsel argued to the 

trial court that the value of negative working capital was 

actually greater than the figure stated in the report of 

husband's expert because husband's expert mistakenly omitted 

certain liabilities from his calculation that were included in 

the report of wife's expert. In his closing argument, husband's 
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counsel argued that husband's expert justifiably adjusted the 

value of the business downward to account for the key man problem 

and its low profitability. In addition, husband's counsel 

endorsed the final decree "seen and . . . partly excepted to as 

set forth above" and marked his initials next to the paragraph in 

which the trial court states its valuation of the business.1

 

Again, this combination of oral argument reduced to transcript 

and an objection noted by the trial court in the final decree was 

sufficient to make known husband's objection to the valuation of 

his business in accordance with Rule 5A:18. 

 IV. 

 EQUITABLE DISTRIBUTION: VALUE OF HUSBAND'S BUSINESS 

 "Code § 20-107.3 requires a trial court to value the 

parties' separate and marital property before making a monetary 

award. The trial court's valuation cannot be based on 'mere 

guesswork.' However, the burden is on the parties to provide the 

trial court sufficient evidence from which it can value their 

property." Stratton v. Stratton, 16 Va. App. 878, 883, 433 

S.E.2d 920, 922 (1993) (citing Bosserman v. Bosserman, 9 Va. App. 

1, 5, 384 S.E.2d 104, 107 (1989)). "Fashioning an equitable 

distribution award lies within the sound discretion of the trial 

judge and that award will not be set aside unless it is plainly 

 

 1Husband's initials appear in the original version of final 

decree that was first entered on July 20, 1995. This version 

contained minor errors that were subsequently corrected by the 

trial court on February 2, 1996. 
 -9- 

wrong or without evidence to support it." Srinivasan v. 

Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990). 

 We hold that the trial court's valuation of the business was 

neither plainly wrong nor without evidence to support it. 

Husband contends that the trial court erred in valuing his 

business because it failed to use the negative working capital 

amount that was agreed upon by both parties, which he alleges was 

approximately -$100,000. However, the record shows that the 

experts did not agree that this figure was the amount of negative 

working capital. Both experts agreed that working capital was 

determined by subtracting current liabilities from current assets 

and that, in the case of husband's business, this amount was a 

negative number. Wife's expert testified that she used the 

negative working capital in husband's expert's report, -$36,708, 

because she did not have access to either husband or his 

bookkeeper. Husband's expert testified that, although he 

initially estimated negative working capital to be -$36,708, he 

had recently discovered additional liabilities and that negative 

working capital was probably closer to -$100,000. The trial 

court merely resolved this disputed evidence in favor of the 

initial estimate of husband's expert. 

 Husband also argues that the trial court erred when it 

failed to adjust the value of the business downward to account 

for its purported key man problem and low profitability. Again, 

the testimony of the experts conflicted regarding whether the 
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computations derived from the Bizcomps data should be adjusted 

downward to account for these factors. The trial court found one 

of the experts to be more credible, and that finding is supported 

by the evidence. Reid v. Reid, 7 Va. App. 553, 563, 375 S.E.2d 

533, 539 (1989) (court's finding that one expert's valuation of 

wife's interest in travel agency was more credible than others 

supported by evidence). 

 V. 

 HUSBAND'S INCOME FROM SIDE JOBS: CHILD AND SPOUSAL SUPPORT 

 Husband contends that the evidence was not sufficient to 

support the trial court's finding that husband's income included 

$1,500 per month from side jobs not reported on the books of his 

business. "Decisions regarding 'spousal support . . . rest 

within the sound discretion of the trial court and will not be 

reversed on appeal unless plainly wrong or unsupported by the 

evidence.'" Konefal, 18 Va. App. at 614, 446 S.E.2d at 154 

(citation omitted). Wife testified that husband made an 

additional $1,500 to $3,000 a month from side jobs. In addition, 

two of the parties' children and two former employees of the 

business testified that husband received income from side jobs 

that was unreported on the business' books. It cannot be said 

that the trial court's conclusion regarding the husband's monthly 

income from side jobs was plainly wrong or without evidence to 

support it. Furthermore, contrary to husband's assertion, the 

trial court did not impute income to husband when it made its 
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finding of income from side jobs. A trial court "imputes" income 

when it assigns income for the purposes of calculating support 

payable by an individual found to be voluntarily unemployed or 

underemployed. Bennett v. Commonwealth, 22 Va. App. 684, 691, 

472 S.E.2d 668, 672 (1996); Code § 20-108.1(B)(3). In this case, 

the trial court did not conclude that husband was voluntarily 

underemployed and instead found that the income from side jobs 

was income actually earned by husband. 

 In view of this Court's holding that the trial court did not 

err in finding "side job" income of $1,500 per month, in addition 

to the $6,139 monthly income from his business, we cannot say 

that the trial court abused its discretion or is plainly wrong in 

awarding monthly spousal support of $2,300. Likewise, the 

monthly child support award of $921 was based on the application 

of the child support guidelines to a monthly income of $7,639. 

 Based on the foregoing, we affirm the decision of the trial 

court. 

Affirmed. 
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Benton, J., dissenting. 

 The record reveals that eighteen months after the pendente 

lite award was entered, the husband filed a motion to modify the 

award. At a hearing on August 22, 1994, husband's counsel 

proffered evidence that the husband's business was failing and 

that the husband did not have sufficient income to pay support as 

ordered. Ruling that it was not his "policy" to modify pendente

lite orders, the judge declined to hear evidence on the motion. 

A year later, the trial judge heard evidence ore tenus regarding 

the divorce issues. The trial judge then entered a final order 

setting support. The husband's appeal from that final order 

includes a challenge to the judge's refusal to consider the 

husband's motion for a modification of the pendente lite support 

award. 

 I would hold that by making a motion to modify the pendente

lite support order, the husband adequately brought before the 

judge the issue that he now raises on appeal. Because the judge 

accepted proffers from the parties and decided against hearing 

the motion to modify, we are not in the position of considering 

this issue for the first time on appeal. Moreover, requiring the 

husband to object after the trial judge overruled his motion 

would result in reargument of issues already decided, unnecessary 

delay, and fostering a climate of contentiousness at trial. When 

the judge overrules a party's motion, the moving party obviously 

objects to the adverse ruling for the reasons stated in the 
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motion and motion argument. See Code § 8.01-384. 

 In addition, requiring the husband to object to the denial 

of his motion "would, in effect, recreate the requirement of 

noting an exception to a final adverse ruling of the trial 

judge." Martin v. Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 

401, 404 (1992). By statute, the husband was not required to 

take exception to the trial judge's denial of his motion for 

modification of the pendente lite order. "Formal exceptions to 

rulings or orders . . . shall be unnecessary; but . . . , it 

shall be sufficient that a party, at the time the ruling or order 

. . . is made or sought, makes known to the court the action 

which he desires the court to take." Code § 8.01-384. 

 I would therefore hold that the husband is not barred from 

appealing this issue after entry of the final decree. 

Furthermore, this appeal properly brings before this Court for 

consideration issues relating to the effect of the judge's 

refusal to reconsider the pendente lite order. We have 

previously ruled that "[i]f, after entry of the final order in 

the case, the appellant alleges that the final judgment was 

adversely affected by the failure of the trial judge to grant 

pendente lite support . . . , [the appellant] may appeal the 

final order and seek a new trial." Pinkard v. Pinkard, 12 Va. 

App. 848, 853, 407 S.E.2d 339, 342 (1991). 

 The written statement of facts recites that, in support of 

his motion, the husband's counsel proffered "that [the husband's] 
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business was not doing well, that less cash was available, and 

that [the husband] could not make the pendente lite support 

payments." The wife's counsel merely "proffered that the 

marriage was a long one, that the needs of the wife and children 

had not changed, that the wife was unable to work because she was 

still being treated for cancer, and that the original pendente

lite order had been agreed upon by the parties at a . . . 

conference with counsel present." The wife's counsel did not 

refute the avowal of the husband's changed financial condition. 

Thus, the husband's "counsel's avowal, the truth of which was 

unchallenged . . . , constituted a proper proffer." Whittaker v. 

Commonwealth, 217 Va. 966, 969, 234 S.E.2d 79, 81-82 (1977). 

 Based upon the husband's proffer of financial distress and 

the long duration of the pendente lite order, "considerations of 

justice require[d]" the trial judge to hear the evidence and 

grant the husband's motion for relief. Richardson v. Gardner, 

128 Va. 676, 685, 105 S.E. 225, 228 (1920). The record proved 

that the judge invoked a "policy" of the court in refusing to 

consider the husband's motion for modification of the pendente

lite support award. That ruling was not based upon a sound 

exercise of discretion or a consideration of the financial 

distress that the husband's counsel proffered in support of his 

request for a hearing. The trial judge's refusal because of 

"policy" to consider a modification of the pendente lite order 

was error as a matter of law. See Newton v. Wilson, 199 Va. 864, 
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868-69, 102 S.E.2d 299, 302 (1958) ("The refusal of the lower 

court to hear . . . evidence on the issues raised by the [motion 

for revocation of the interlocutory order] . . . was error."). 

 I disagree with the majority's view that the trial judge's 

ruling tended to promote an efficient resolution of the case. 

The pendente lite order had been in effect for more than a year. 

 Another year lapsed after the motion to modify the pendente lite

award was filed in July 1994 and before the final order was 

entered in July 1995. The trial judge therefore had ample time 

to hear the motion without prolonging the final disposition of 

the matter. 

 The husband alleges that the failure to grant a modification 

of the pendente lite support award affected the valuation of the 

husband's business and the final property distribution award. 

The evidence eventually admitted at the April, 1995 ore tenus

hearing revealed that the circumstances of the husband's business 

at the time of his motion to modify the pendente lite award amply 

supported the husband's proffer. The ore tenus evidence proved 

that the husband operated his carpeting business as a sole 

proprietorship. The wife's own expert stated that the business' 

liabilities exceeded its assets, the business had a negative net 

worth, and the business had a negative cash balance of $15,194 at 

the end of 1994. The evidence further proved that the husband 

drew funds from his business in excess of profits to pay the 

pendente lite support. The wife's expert stated that "[the 
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husband] has not limited his draw and cash taken out for personal 

use to the level of profits. The working capital has been 

depleted and liabilities have risen." 

 The husband's expert assessed the business loss to be 

greater than the amount proved by the wife's expert. The report 

submitted by the husband's expert showed that since the entry of 

the pendente lite support order in February, 1993, the business' 

cash flow had declined dramatically. Moreover, the business' 

liabilities had increased from $117,054 in 1992 to $183,090 at 

the end of 1993. Indeed, at the time of the husband's motion to 

modify the pendente lite award, the wife did not dispute the 

husband's allegations that the business had deteriorated. 

 The trial judge found that the business' tax debts continued 

to grow partly due to the husband's diversion of funds to pay 

support and divorce costs. Specifically, the trial judge found 

that "the evidence in the case supports the conclusion that some 

of [the husband's] growing debt to the IRS resulted from the fact 

that the funds which would otherwise be used to pay the tax 

liability were used to pay [the husband's] divorce-related fees 

and costs for attorneys, accountants, and support." 

 Thus, the evidence proved that after the trial judge refused 

to consider the husband's motion to modify the pendente lite

support award, the husband continued to draw money from the 

business in excess of profits in order to pay the support and 

other costs of the divorce. In effect, the husband encumbered 
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marital property to pay marital expenses. No evidence proved, 

however, that the husband deliberately encumbered the business in 

order to diminish the value of the wife's equitable distribution 

award. Nevertheless, the trial judge "found it inappropriate to 

consider personal liabilities as part of a business' current 

liabilities." 

 In Marion v. Marion, 11 Va. App. 659, 401 S.E.2d 432 (1991), 

this Court explicitly stated that when valuing marital property, 

"the amount of the indebtedness must be deducted from the gross 

value of the property to determine the net value for purposes of 

equitable distribution." Id. at 667, 401 S.E.2d at 437. Only if 

the spouse deliberately encumbered the property to reduce the 

equitable distribution award may the judge refuse to consider the 

debt. See Trivett v. Trivett, 7 Va. App. 148, 152, 371 S.E.2d 

560, 562 (1988). In addition, "expenditure of funds for items 

such as living expenses, support, and attorney's fees, 

constitutes a valid marital purpose and is not dissipation or a 

deliberate attempt to affect a monetary award." Decker v. 

Decker, 17 Va. App. 12, 19, 435 S.E.2d 407, 412 (1993). 

Therefore, debts incurred to pay personal and marital expenses, 

including support, properly must be used to reduce the value of 

the encumbered property. See id. 

 After erroneously failing to consider the husband's request 

for modification of pendente lite support payments, the trial 

judge penalized the husband for his compliance with the pendente
 -18- 

lite order by excluding the marital debt in valuing the sole 

proprietorship. Because the record does not establish that the 

husband had any other source of meeting his court ordered 

obligations, I would hold that the trial judge erred in failing 

to consider the effect of her orders in diminishing the value of 

the sole proprietorship, a marital property. The trial judge's 

valuation of the business was plainly wrong. 

 Because I believe that the valuation of the business was 

flawed by the failure to consider the impact of refusing to 

reduce the pendente lite support and the consequential drain of 

the business' assets, I would reverse the valuation and remand 

for reconsideration of the equitable distribution award.