COURT OF APPEALS OF VIRGINIA
Present: Judges Powell, Alston and Senior Judge Annunziata Argued by teleconference

GEEVE ASSARI MEMORANDUM OPINION * BY v. Record No. 0939-10-4 JUDGE CLEO E. POWELL FEBRUARY 8, 2011 SUZANNE R. ASSARI

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Marcus D. Williams, Judge Fred M. Rejali (Amir Raminpour; Jane Lee, on brief), for appellant. Camille N. Allan (Surovell Ma rkle Isaacs & Levy PLC, on brief), for appellee.
Geeve Assari (“husband”) appeals the deci sion of the Circuit C ourt of Fairfax County reducing his spousal support obligation to Suzan ne R. Assari (“wife”) to $2,000 per month and his child support obligation to $916 per month. Husband contends that the amount of income imputed by the trial court was not supported by the evidence; therefore, the trial court’s decision was in error. We disagree and affi rm the decision of the trial court.
BACKGROUND Husband and wife were divorced on May 15, 2009. As part of the divorce, husband was ordered to pay child support ($1,390 per month) and spousal support ($3,500 per month) based on husband’s imputed income of $16,500 per mont h and wife’s actual income of $4,000 per
month.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - On October 5, 2009, husband filed a motion to reduce spousal support and child support, alleging a material change in circumstances. On January 6, 2010, the tr ial court heard testimony and received evidence from the parties regard ing their respective incomes and expenses. The evidence revealed that, at the time of the divorce, husband owne d an interest in two businesses, GKA Tysons, LLC d/b/a MNG by Ma ngo (“Mango”) and Wrangler Construction (“Wrangler”). Husband testified that, since the divorce, he was forced to relinquish all ownership in Mango. However, he admitted on cr oss-examination that the financial problems with Mango “really began in 2008” and that Man go had not been producing any income prior to the entry of the final decree of divorce on May 15, 2009. Husband also testified that, since the divorce, Wrangler was unable to pay its business debts due to the economic downturn. As a result, Wrangler was unabl e to pay its annual registration fee and it was subsequently dissol ved by the State Corporation Commission. As a result, Wrangler could no longer conduct business in the Commonwealth of Virginia. Based on the loss of Mango and th e dissolution of Wrangler, hus band testified that he had no current income. Although husband testified th at he had no discernible income, there was evidence that husband made several large cash deposits into and withdrawals from a business account unrelated to either Wrangler or Mango. 1 When questioned about these deposits and withdrawals, husband was unable to definitively explain where the money came from or where the vast majority of it went. He acknowledged th at at least one of the deposits was payment for work done by Wrangler in Maryland. Husband further admitted that, since the divo rce, he had applied for only four jobs. After hearing all of the eviden ce, the trial court found that th e income originally imputed to husband was not based on income derived fr om Mango. As a result, the trial court found

1 The account was listed as “Geeve Assari d/b/a Geeve Assari.”- 3 - husband’s loss of Mango was not a material change in circumstances. Regarding Wrangler, however, the trial court found that the income originally imputed to husband was based, in part, on the income derived from Wrangler. Furthermor e, because Wrangler was, in effect, defunct and the market for construction services had decr eased substantially, the trial court determined that husband had proven a partial ma terial change in circumstances. The trial court also found, however, that husba nd had not shown “suffi cient efforts to find work.” Similarly, the trial court noted the une xplained deposits and withdrawals from husband’s bank accounts and determined that husband had “mor e income than he [was] representing to the Court.” Based on these findings, the trial court reduced husband’s imputed income to $9,000 per month. As a result, the trial court reduced husband’s spousal support obligation to $2,000 per month and his child support obligation to $916 per month. Husband appeals.
ANALYSIS Husband argues that the trial court’s deci sion to impute income in the amount of $9,000 per month is not supported by the evidence. Ac cording to husband, no evidence was presented regarding his overall earning capacity other than the income from Mango and Wrangler. Therefore, having found that Mango was not factored into the initially imputed income and that Wrangler’s dissolution was a materi al change in circumstances, there was no basis for the trial court to impute any income to him. On brief, he further contends that, in order to impute income to him, the burden was on wife to produce eviden ce or expert testimony as to the state of the construction business, as well as husband’s empl oyability and earning capacity. We disagree. “Once a child support award has been entere d, only a showing of a material change in circumstances will justify modifi cation of the support award. The moving party has the burden of proving a material change by a preponderance of the evidence.” Crabtree v. Crabtree , 17- 4 - Va. App. 81, 88, 435 S.E.2d 883, 888 (1993). Thus, cont rary to husband’s argument, wife bears no burden to produce any evidence or expert test imony; rather the burden of proving that his earning capacity was reduced as a result of a mate rial change in circumstances rests entirely upon husband. Furthermore, “a party seeking a reduction in support payments has additional burdens: ‘He must make a full and clear disc losure relating to his ability to pay. He must also show that his lack of ability to pay is not due to his own voluntary act or because of his neglect.’” Edwards v. Lowry , 232 Va. 110, 112-13, 348 S.E.2d 259, 261 (1986) (emphasis added) (quoting
Hammers v. Hammers , 216 Va. 30, 31-32, 216 S.E.2d 20, 21 (1975)). In other words, once he proves that a material change in circumstances has occurred, husband must then prove that the change in circumstances justifies a reduction in support payments by establishing “that he is not ‘voluntarily unemployed or voluntarily under employed.’” Antonelli v. Antonelli , 242 Va. 152, 154, 409 S.E.2d 117, 119 (1991) (quoting Code § 20-108.1(B)(3)). The record is clear that, for purposes of resolving the issue then before the trial court, the loss of Mango had no bearing on husband’s earn ing capacity. Husband admitted that Mango had not been producing any income at the time income was originally imputed to him. As such, there is no presumption that income generated from Mango was factored in to the trial court’s original imputation of husband’s income, and, therefore, the loss of Mango did not entitle husband to a reduction in the income originally imputed to him. On the other hand, it is appare nt that husband’s earning capa city was reduced as a result of the dissolution of Wrangler. The evidence dem onstrates that husband me t his initial burden of proving that a material change in circumstances had occurred. We note, however, that the dissolution of Wrangler only applie d to business conducted in Virginia . The record is clear that, although Wrangler was dissolved in Virginia , husband was still receiving income from- 5 - Wrangler’s activities in other states, namely Maryland. Husband admitted as much when he attempted to explain the sizable deposits and withdrawals from his bank account. Thus, it is apparent that business in Virginia only repr esented a portion of the income generated by Wrangler. As income from Wra ngler was presumptively factored into the court’s original imputation of husband’s income, husband was entit led to a reduction in the amount of income originally imputed to him. However, because the dissolution of Wrangler in Virginia only affected a portion of the overall income genera ted by Wrangler, husband was only entitled to a commensurate reduction in the amount of in come originally imputed to him. Finally, a parent “who shows a reduced ability to sa tisfy his obligation, which is not due to his wrongdoing, his neglect of his affairs, or his intentional diminution of his financial ability other than in connection with a bona fide and reasonable business un dertaking, is entitled to have that reduction considered along with the other usual factors, including his general earning capab ility, in determining his child support obligation.” Antonelli , 242 Va. at 155, 409 S.E.2d at 119 (quoting Antonelli v. Antonelli , 11 Va. App. 89, 94, 396 S.E.2d 698, 701 (1990)). Here, the trial court clearly determined th at part of the reducti on in husband’s earning capacity was not due to any wrongdoing on his part (i.e., the downturn in the economy); however, the trial court also found that part of the reduction in husband’s earning capacity was due to his own wrongdoing (i.e., voluntary underemp loyment or unemployment). It is well settled that, “[a]bsent clear eviden ce to the contrary in the record, the judgment of a trial court comes to an appellate court with a presumption th at the law was correctly applied to the facts.”
Bottoms v. Bottoms , 249 Va. 410, 414, 457 S.E.2d 102, 105 (1995). As such, we must presume that the trial court reduced the amount of inco me imputed to husband based only on the earning capacity that was lost due to f actors beyond his control, while stil l considering “the other usual- 6 - factors.” 2 Accordingly, based on husband’s volunta ry underemployment, prior employment history, business connections, language skills, an d the income husband received from Wrangler’s operations in Maryland and other states, we cannot sa y that the trial court abused its discretion in only partially reducing the amount of income imputed to husband.
CONCLUSION As there is evidence that husband’s earning ca pacity was partially reduced due to factors beyond his control and partially reduced due to his own voluntary underemployment and his failure to make a full and clear di sclosure as to his ear ning capacity, we cannot say the trial court abused its discretion by taking into account th e dissolution of Wrangler while simultaneously finding husband’s earning capacity to be greater than zero. Accord ingly, the decision of the trial court is affirmed. Affirmed.

2 We further note that there was evidence in th e record on which the trial court could base its ruling. For example, according to his bank records, between May 2009 and October 2009, husband deposited a total of $69,500, which averages out to $11,583.33 per month.