COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Coleman and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

LESLIE WARREN NICHOLS 

 MEMORANDUM OPINION*

v. Record No. 1441-97-4 BY JUDGE CHARLES H. DUFF 

 APRIL 28, 1998 

LORINDA K. NICHOLS (BOSCH) 

FROM THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY 

William Shore Robertson, Judge 

 Susan C. Minkin for appellant. 

 Julia S. Savage (Walker, Jones, Lawrence, 

Duggan & Savage, on brief), for appellee. 

 Leslie Warren Nichols (father) appeals the decision of the 

circuit court denying his petition to recalculate child support 

payable to Lorinda K. Nichols (mother) on behalf of the parties' 

two children. Father contends that the trial court erred by (1) 

failing to impute income to mother; (2) failing to calculate the 

guideline amount of child support or to make adequate written 

findings supporting its deviation from the guidelines; and (3) 

ruling that changed circumstances resulting from father's new 

family could not justify a reduction in his child support 

payments. We affirm the decision of the trial court. 

 As the party seeking to modify the current child support 

payment, father bore the burden to prove by a preponderance of 

 

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

designated for publication. 
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the evidence both a material change in circumstances and that the 

change warranted a reduction in his payments. See Antonelli v. 

Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 118-19 (1991). See 

also Code § 20-108. "In discharging this burden, [the party] 

seeking a reduction in support payments must also make a full and 

clear disclosure about his ability to pay, and he must show his 

claimed lack of ability to pay is not due to his own voluntary 

act or because of his neglect." Antonelli, 242 Va. at 154, 409 

S.E.2d at 119. 

Imputation of Income

 Father contends that the trial court erred when it failed to 

impute income to mother because she was underemployed. See Code 

§ 20-108.1(B)(3). "Imputation of income is based on the 

principle that a spouse should not be allowed to choose a low 

paying position that penalizes the other spouse or any children 

entitled to support." Calvert v. Calvert, 18 Va. App. 781, 

784-85, 447 S.E.2d 875, 876-77 (1994). In a prior order, the 

trial court encouraged mother to seek full-time employment. 

However, mother presented evidence that her current part-time 

employment schedule of four different jobs reduced or eliminated 

certain expenses, such as child care, which she would incur 

working full-time. Mother estimated she would need to earn 

$35,000 annually to cover those increased expenses and still 

receive the same net income. Moreover, she worked approximately 

the same number of part-time hours as she worked at the time of 
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the previous hearing. Cf. Brody v. Brody, 16 Va. App. 647, 432 

S.E.2d 20 (1993) (imputing income to mother who quit a full-time 

position). The trial court found that it would not be 

cost-effective for mother to work full-time. "The judgment of 

the trial court concerning the extent to which the wife's earning 

capacity should affect . . . child support awards will not be set 

aside unless it appears from the evidence that such judgment is 

plainly wrong or without evidence to support it." Kaufman v. 

Kaufman, 7 Va. App. 488, 494, 375 S.E.2d 374, 377 (1988). 

Because credible evidence supports the court's finding, we find 

no error. 

Written Findings

 Under Code § 20-108.1(B), the amount of child support 

calculated pursuant to the guidelines set out in Code § 20-108.2 

is presumed to be correct. See Richardson v. Richardson, 12 Va. 

App. 18, 21, 401 S.E.2d 894, 896 (1991). Any deviations from the 

guidelines are to be set out in written findings which explain 

why the guidelines would be inappropriate or unjust. Id. at 

21-22, 401 S.E.2d at 896-97. 

 The previously set child support deviated from the 

guidelines. The trial court found that father failed to present 

sufficient evidence of changed circumstances warranting a 

modification of the previously set child support. Therefore, as 

the trial court found insufficient evidence to warrant a change 

in the child support payments, it was not required to recalculate 
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the basic guideline payment or reiterate in writing its reasons 

for deviating from that amount. See Hiner v. Hadeed, 15 Va. App. 

575, 577, 425 S.E.2d 811, 812 (1993). 
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Father's Circumstances

 Among the factors to be evaluated by the trial court 

considering a deviation from the guideline amount of child 

support is the "[a]ctual monetary support for other children, 

other family members or former family members." Code 

§ 20-108.1(B)(1). See Farley v. Liskey, 12 Va. App. 1, 3-4, 401 

S.E.2d 897, 898-99 (1991). Father presented evidence that his 

living expenses had increased since the last hearing, but 

admitted that the increased expenses resulted from the need to 

accommodate his new wife and her child. Father also admitted 

that his new wife does not receive any child support. No 

evidence showed that expenses attributable to the parties' sons 

had increased. We find no error in the trial court's conclusion 

that father's voluntary assumption of additional financial 

obligations on behalf of his new family did not justify a 

reduction in the amount of support paid for his sons. 

 Accordingly, the decision of the circuit court is affirmed. 

 Considering all of the circumstances presented, we deny mother's 

motion for attorney's fees and costs expended in this appeal. 

 Affirmed.
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Coleman, J., dissenting. 

 In my opinion, the appellant proved material changes in 

circumstance that were sufficient to have required the trial 

court to recalculate and redetermine the parents' respective 

child support obligations. Accordingly, I dissent from the 

majority holding.