COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

MARY RYDER BRETT 

v. Record No. 1511-95-4 MEMORANDUM OPINION*

 PER CURIAM 

LAWRENCE G. BRETT JUNE 4, 1996 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Thomas S. Kenny, Judge 

 (Mary Ryder Brett, pro se, on brief). 

 No brief for appellee. 

 Mary R. Brett (mother) appeals the decision of the circuit 

court granting the motion of Lawrence G. Brett (father) to reduce 

spousal and child support and deciding other issues. Mother 

raises the following issues on appeal: 

 (1) whether the court erred in granting father's 

motion for reconsideration more than twentyone days after entry of its March 3, 1995 

order; 

 (2) whether the court erred in denying mother's 

motion to dismiss father's motion to reduce 

support where father's motion failed to 

allege a material change in circumstances 

justifying a reduction in support; 

 (3) whether the court erred in denying mother's 

motion to dismiss father's motion to reduce 

support when father was over $66,000 in 

arrearages in spousal and child support; 

 (4) whether the court erred in denying mother's 

motion to reduce arrearages to judgment 

pursuant to terms of final divorce decree; 

 

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

designated for publication. 
 2 

 (5) whether the court erred in denying mother's 

motion to dismiss when father failed to 

appear to testify for nine months; 

 (6) whether the court erred in refusing to enter 

as admitted mother's Request for Admissions 

when father had not responded within twentyone days, as required by Rule 4:11, and in 

failing to dismiss father's motion to reduce 

support; 

 (7) whether the court erred in denying mother's 

motion to strike at the June 7, 1995 trial; 

 (8) whether the court erred in imputing only 

$30,000 in income to father; 

 (9) whether the court erred in retroactively 

modifying child and spousal support beginning 

August 1, 1994 and prospectively modifying 

child and spousal support beginning August 1, 

1995; 

 (10) whether the court erred in granting father 

retroactive relief based upon the filing of 

the motion despite father's failure to have 

the motion heard until June 1995; 

 (11) whether the court erred in finding Antonelli 

v. Antonelli, 242 Va. 152, 409 S.E.2d 117 

(1991) was not applicable; 

 (12) whether the court erred in failing to state 

that it considered all the statutory factors 

before reducing child support; and 

 (13) whether the court erred in failing to state 

that it considered all the statutory factors 

before reducing spousal support. 

Upon reviewing the record and opening brief, we conclude that 

this appeal is without merit. Accordingly, we summarily affirm 

the decision of the trial court. Rule 5A:27. 

Motion to Reconsider

 In 1993, both parties filed motions in the trial court to 
 3 

modify spousal support. By order dated March 3, 1995, the trial 

judge memorialized his ruling following a June 25, 1993 hearing 

"[F]inding no change in circumstances warranting relief by either 

party," the trial judge denied the motion of both parties."1

 By 

order dated April 6, 1995, the court granted leave to the father 

to move for reconsideration of the March 3, 1995 order denying 

his 1993 motion for a reduction of support. Mother contends that 

the trial court erred by entering an order granting 

reconsideration of the March 3 order when it became final, under 

Rule 1:1, twenty-one days after its entry, which was March 24, 

1995. 

 The record does not contain either a motion to reconsider or 

a ruling by the trial judge on a motion to reconsider. 

Therefore, whether or not the trial judge had jurisdiction to 

grant leave to the father to file a motion to reconsider, no 

further action occurred. Thus, the appeal raises no justiciable 

controversy that resulted from entry of the order. Accordingly, 

the issue is moot. See Aetna Life Ins. Co. v. Haworth, 300 U.S. 

227, 240-41 (1937); Historic Landmarks Comm. v. Louisa Co., 217 

 

 1 The trial court struck and, thereby, deleted from the 

original draft order the phrase, "the order of support entered by 

the Honorable William Plummer October 31, 1991 shall remain in 

effect." The record shows that at the conclusion of a 1991 

hearing on a motion by father to reduce child support, Judge 

Plummer ordered father to pay $1,000 per month in child support 

and $200 per month in spousal support. No written order 

memorializing Judge Plummer's ruling was ever entered. On April 

2, 1993, mother filed a motion to increase support noting that 

Judge Plummer in 1991 set support at $1,200. 
 4 

Va. 468, 476, 230 S.E.2d 449, 454 (1976). 
 5 

Motion to Dismiss

 Mother raises several challenges to the trial court's denial 

of her motion to dismiss father's 1994 motion to reduce support. 

 Mother contends father failed to allege a material change in 

circumstances justifying a reduction in support. Father's motion 

alleged that, following a job loss, his income was reduced to 

$185 per week in unemployment benefits. Father also alleged that 

mother's income exceeded his, alleviating the need for spousal 

support. Those were sufficient allegations of a change in 

circumstances to withstand a motion to dismiss. 

 Mother argues that laches should have barred the court from 

hearing father's motion because father never intended to appear 

to testify in support of his motion. "[L]aches has been defined 

as an omission to assert a right for an unreasonable time and 

unexplained length of time, under circumstances prejudicial to 

the adverse party," Finkel Outdoor Products, Inc. v. Bell, 205 

Va. 927, 933, 140 S.E.2d 695, 699 (1965), or as "'such neglect or 

omission to do what one should do as warrants the presumption 

that he has abandoned his claim, and declines to assert his 

right.'" Pittman v. Pittman, 208 Va. 476, 479, 158 S.E.2d 746, 

749 (1968) (citation omitted). Whether to apply laches to an 

equitable claim is a matter left to the discretion of the trial 

court. In light of father's residence in Arizona, his loss of 

employment, and his subsequent hospitalization, the trial court 

could reject mother's contentions that father never intended to 
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appear. Accordingly, we cannot say the trial court abused its 

discretion in denying mother's motion to dismiss. 

Request to Reduce Arrearages to Judgment

 On March 30, 1995, mother filed a show cause petition 

seeking to hold father in contempt for failing to pay $2,400 a 

month in spousal and child support since July 1991. In her 

supporting affidavit, mother asserted that the last order of 

child and spousal support entered by the court was the September 

18, 1990 final decree of divorce, which set child and spousal 

support at $1,200 each. Mother's affidavit noted that father 

complied with the order until July 1991, then paid $1,200 per 

month for the period from July 1991 to July 1994, $185 per month 

from August 1994 through November 1994, and $50 per month for 

December 1994 until March 1995. The trial judge granted mother's 

rule to show cause and a hearing was held on April 6, 1995. The 

trial judge then denied mother's request to enter judgment on the 

alleged arrearages. 

 The trial court did not err in denying mother's request for 

support arrearages. The record demonstrates that, after the 

entry of the final decree in 1990, both parties filed motions to 

adjust support. These motions were heard by Judge Plummer on 

October 31, 1991. The transcript of that hearing indicates that 

the trial judge reduced the amount of spousal support to $200 and 

the amount of child support to $1,000. No written order 

incorporating the trial judge's ruling was ever entered. 
 7 

 After Judge Plummer set $1,200 as the total amount of 

support, the parties conducted themselves according to that 

order. Mother's affidavit in support of her show cause petition 

acknowledged that father paid $1,200 per month for the period 

July 1991 through July 1994. Thus, mother's own evidence 

indicates that father was paying $1,200 in 1993 when Judge Kenney 

found that circumstances did not warrant changing the current 

amount of support. While Judge Kenney's order did not indicate 

the level of either spousal or child support which father was 

then obligated to pay, both parties' motions indicated that the 

amount of spousal support was $200. Mother's motion also stated 

that the amount of child support was $1,000. Therefore, we 

cannot say that the trial judge erred in denying mother's request 

for arrearages attributable to the period prior to July 1994. 

 Moreover, under Code § 20-108, support "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 party." "Whether to 

make modification of a support order effective during a period 

when a petition is pending is entirely within the discretion of 

the trial court." O'Brien v. Rose, 14 Va. App. 960, 965, 420 

S.E.2d 246, 249 (1992). By motion filed July 28, 1994, father 

sought to decrease child support and terminate spousal support 

based upon his loss of employment on June 15, 1994. We cannot 

say the trial court abused its discretion by modifying the amount 
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of spousal and child support effective upon the filing of 

father's 1994 petition to reduce support. Therefore, the trial 

judge's denial of mother's requests for arrearages attributable 

to the period after July 1994 was also not clearly erroneous. 

Request for Admissions

 The trial court is granted discretionary authority over the 

conduct of discovery. Helen W. v. Fairfax County Dep't of Human 

Dev., 12 Va. App. 877, 887, 407 S.E.2d 25, 31 (1991). Mother has 

not shown that the court abused its discretion in declining to 

accept as admitted 205 items which composed mother's Request for 

Admissions. The mother's allegation that father's answers were 

one day late does not prove the trial judge abused his 

discretion. 

Modification of Child Support

 We review the evidence in the light most favorable to 

father, the party prevailing below. "The judgment of a trial 

court sitting in equity, when based upon an ore tenus hearing, 

will not be disturbed on appeal unless plainly wrong or without 

evidence to support it." Box v. Talley, 1 Va. App. 289, 293, 338 

S.E.2d 349, 351 (1986). "Where a party has demonstrated a 

material change in circumstances, the trial court 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). 
 9 

 Father testified that his income was substantially reduced 

when he lost his job in June 1994, and that he did not 

voluntarily leave his position in Washington or his position with 

an Arizona law firm. While the record indicates father lost his 

Washington job due to poor performance, his subsequent employment 

with the Arizona firm was at a higher salary. Father's evidence, 

which the trial court found to be credible, indicated that father 

made good faith efforts to find work to supplement his 

unemployment benefits and sought to ameliorate his lost income by 

obtaining a real estate license. The trial court noted that 

father filed his motion to reduce support promptly upon losing 

his position in June 1994. The record demonstrates that the 

trial court considered the circumstances of the parties and the 

expenses for the children before reducing the amount of child 

support to $300 a month for the period from August 1, 1994 

through August 1, 1995. This determination is supported by 

credible evidence. 

 The trial court imputed annual income of $30,000 to father. 

 A trial court's decision to impute income will not be reversed 

if it is supported by the evidence. O'Brien v. Rose, 14 Va. App. 

960, 963-64, 420 S.E.2d 246, 248 (1992) (citations omitted). 

Mother relies upon Antonelli v. Antonelli, 242 Va. 152, 409 

S.E.2d 117 (1991), to argue that the trial court erred in not 

imputing more income to father. In Antonelli, the father left a 

salaried management position with one stock brokerage firm to 
 10 

take a commissioned sales position with a different firm several 

months before a precipitous drop in the stock market. Id. at 

153, 409 S.E.2d at 118. The Supreme Court noted that "the father 

gambled with the children's ability to receive his financial 

support, and lost." Id. at 156, 409 S.E.2d at 119. In contrast, 

here the trial court determined that father did not voluntarily 

take a risk which placed the children's payments in jeopardy. 

Antonelli does not preclude a payor spouse from ever receiving a 

reduction in support obligations when there have been 

unforeseeable changes in employment and corresponding reductions 

in salary. 

 Based upon the actual and imputed income, both parties had 

$30,000 in annual income. The trial court used these figures to 

set the amount of child support effective August 1, 1995, 

pursuant to the statutory guidelines. The guidelines are 

presumed to be correct. Code § 20-108.2(A). Therefore, as 

credible evidence supports the court's findings and the amount of 

child support was set pursuant to statutory guidelines, we find 

no error in the trial court's decision. 

Modification of Spousal Support

 Under Code § 20-109, the court is authorized to "increase, 

decrease, or terminate spousal support and maintenance . . . as 

the circumstances may make proper." Mother contends that the 

trial court erred in failing to state that it considered the 

statutory factors, presumably the factors set out in Code 
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§ 20-107.1, prior to reducing the amount of spousal support. The 

court is required to consider the statutory factors when the 

amount of spousal support is initially determined. Subsequently, 

a party seeking to modify support must prove "both a material 

change in circumstances and that this change warrants a 

modification of support." Schoenwetter v. Schoenwetter, 8 Va. 

App. 601, 605, 383 S.E.2d 28, 30 (1989). 

 The trial court found mother's current income to be $30,000. 

 Mother alleged that she had $500 in monthly student loan 

payments coming due and a personal injury affecting her vision 

for which the prognosis was unknown. Mother did not demonstrate 

that her vision currently affected her earning ability. The 

court found that the circumstances of the parties warranted a 

reduction in spousal support to $100 for the period beginning 

August 1, 1994, and the discontinuance of spousal support as of 

August 1, 1995. Its findings are supported by credible evidence. 

 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.