COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Willis and Elder 

Argued at Alexandria, Virginia 

COURTNEY WOOD 

 MEMORANDUM OPINION* BY 

v. Record No. 2388-97-4 JUDGE LARRY G. ELDER 

 APRIL 21, 1998 

HARRY WOOD 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

F. Bruce Bach, Judge 

 Paula W. Rank (Byrd, Mische, Bevis, Bowen, 

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

appellant. 

 Beth A. Bittel (Law Offices of Beth A. 

Bittel, on brief), for appellee. 

 Courtney Wood ("mother") appeals the trial court's order 

granting the motion of Harry Wood ("father") to reduce his 

obligations of child support and spousal support. For the 

reasons that follow, we affirm. 

 On appeal, "[a] presumption exists that the trial court 

based its decision on the evidence presented and properly applied 

the law." Reece v. Reece, 22 Va. App. 368, 372, 470 S.E.2d 148, 

151 (1996). The burden is on the appellant to show that the 

trial court's decision was erroneous. See Twardy v. Twardy, 14 

Va. App. 651, 658, 419 S.E.2d 848, 852 (1992). 

 "Under familiar principles we view [the] 

evidence and all reasonable inferences in the 

light most favorable to the prevailing party 

below. Where, as here, the court hears the 

 

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

designated for publication. 
 2 

evidence ore tenus, its finding is entitled 

to great weight and will not be disturbed on 

appeal unless plainly wrong or without 

evidence to support it." 

Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 

(1997) (en banc) (quoting Martin v. Pittsylvania County Dept. of 

Social Services, 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986)). 

 I. 

CHANGE IN CIRCUMSTANCES 

 We hold that the evidence was sufficient to support the 

trial court's conclusion that a material change in circumstances 

had occurred since the entry of the parties' divorce decree that 

warranted a reduction in father's spousal and child support 

obligations. 

 The party seeking a modification of child or spousal support 

has the burden of proving (1) that a material change in 

circumstances has occurred since the most recent judicial review 

of the award and (2) that the change warrants modification of the 

party's support obligations. See Moreno v. Moreno, 24 Va. App. 

190, 195, 480 S.E.2d 792, 795 (1997); see also Layman v. Layman, 

25 Va. App. 365, 367, 488 S.E.2d 658, 659 (1997). The moving 

party must also make "full and clear disclosure relating to his 

ability to pay" and prove that "his lack of ability to pay is not 

due to his own voluntary act or because of his neglect." Hammers 

v. Hammers, 216 Va. 30, 31-32, 216 S.E.2d 20, 21 (1975); see also

Crosby v. Crosby, 182 Va. 461, 466, 29 S.E.2d 241, 243 (1944). 

 First, we disagree with mother that the parties' agreement 
 3 

required father to prove a change in his "average" financial 

condition over a number of years. The provision regarding 

father's support obligation is unambiguous and mother's 

interpretation of it is inconsistent with the plain meaning of 

its terms. The agreement, which was incorporated into the 

parties' divorce decree, expressly utilized the well established 

"change of circumstances" test as the mechanism by which the 

parties may seek to modify spousal support. This standard also 

governs requests to change father's child support obligation. 

See Kaplan v. Kaplan, 21 Va. App. 542, 547, 466 S.E.2d 111, 

113-14 (1996). Significantly, the text of the agreement does not 

indicate that the proof burden imposed upon a party seeking a 

change in support is any different from that imposed upon a 

person seeking to modify a purely court-ordered support 

obligation. Moreover, the levels of child and spousal support 

established by the parties in the agreement were based upon the 

approximate "present gross annual income" of each party and not

their "average" gross annual incomes. 

 A separation agreement . . . is a contract 

and must be construed as such. Where the 

agreement is plain and unambiguous in its 

terms, the rights of the parties are to be 

determined from the terms of the agreement 

and the court may not impose an obligation 

not found in the agreement itself. 

Jones v. Jones, 19 Va. App. 265, 268-69, 450 S.E.2d 762, 764 

(1994). 

 The evidence, when viewed in the light most favorable to 
 4 

father, supports the trial court's conclusions that the change in 

father's financial condition was not attributable to his 

voluntary actions or neglect and that it warranted a reduction in 

his support obligations. In 1995, father agreed to pay mother 

$2,850 per month in spousal support and $800 per month in child 

support for the parties' sole minor child. The parties expressly 

stated in their agreement that these amounts were "predicated 

upon" the fact that father's "present gross annual income" was 

"approximately $150,000." At the hearing on father's motion, the 

evidence indicated that father had experienced a drastic 

reduction in income due to market-related changes affecting his 

business, Harcourt Group, Ltd. ("Harcourt"), and that the 

financial reversal of Harcourt was not attributable to any 

neglect or other acts of father. 

 Furthermore, based on our review of the record, we cannot 

say that father failed to provide full and clear disclosure 

regarding his current ability to meet his support obligations. 

The record contains ample evidence regarding father's salary and 

other forms of income from Harcourt as well as the past, present, 

and future performance of Harcourt. Although mother contends 

that the evidence produced by father regarding his ability to pay 

was of an insufficient quality, the credibility and weight of 

this evidence was an issue for the finder of fact at trial and 

not for this Court on appeal. Cf. Moreno, 24 Va. App. at 195, 

480 S.E.2d at 795. 
 5 

 II. 

 FATHER'S INCOME 

 We also hold that the evidence was sufficient to support the 

trial court's finding that father's income was currently $60,000 

per year. The record established that, from the beginning of 

1997 to August 14, 1997, the date of the hearing, father's income 

consisted of $9,000 in salary from Harcourt and approximately 

$46,000 in loans from Harcourt and one of his pension plans. 

Father's testimony indicated that, in light of Harcourt's 

business problems and liability to its retirement account, father 

would probably receive little if any additional income from 

Harcourt in 1997. 

 III. 

IMPUTATION OF INCOME TO MOTHER 

 Mother contends that the trial court's imputation of income 

to her was unsupported by the evidence and that the trial court 

erred when it declined to impute income to father based on his 

earning capacity. We disagree with both contentions. 

 In light of our standard of review, we cannot say that the 

trial court's decision to impute income to mother was unsupported 

by the evidence. Steven Shedlin, a "forensic employment expert," 

opined that, based on her background, mother could obtain work in 

retail management that paid between $21,000 and $25,000 per year, 

including commissions, "within two-to-three months of full-time 

job search." This testimony, which the trial court deemed 
 6 

credible, supports the trial court's finding that mother can earn 

$1,917 per month. 

 We hold that the trial court did not abuse its discretion 

when it declined to impute income to father. "A 'court may 

impute income to a party who is voluntarily unemployed or 

underemployed.'" Stubblebine v. Stubblebine, 22 Va. App. 703, 

708, 473 S.E.2d 72, 74 (1996) (en banc) (quoting Calvert v. 

Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875, 876 (1994)); see 

also Code § 20-108.1(B)(3). Although father's income declined 

from $211,263 to about $60,000 in a two-year period, the evidence 

in this case supports the trial court's conclusion that any 

"underemployment" attributable to father was not voluntary. The 

decrease in father's earnings was directly linked to the downturn 

in Harcourt's business. When viewed in the light most favorable 

to father, the evidence supports the conclusion that Harcourt's 

financial reversal was due to market forces beyond father's 

control and was not linked to any act or neglect on father's 

part. Cf. Brooks v. Rogers, 18 Va. App. 585, 593, 445 S.E.2d 

725, 729 (1994); Floyd v. Floyd, 17 Va. App. 222, 231, 436 S.E.2d 

457, 462-63 (1993). 

 IV. 

 STANDARD OF LIVING ESTABLISHED DURING THE MARRIAGE 

 We disagree with mother that the trial court failed to 

consider the standard of living established by the parties during 

the marriage. The standard of living established by the parties 
 7 

during the marriage is a factor considered by a trial court when 

determining how much a spousal or child support obligation should 

be modified. See Stubblebine, 22 Va. App. at 710-11, 473 S.E.2d 

at 75-76; Conway v. Conway, 10 Va. App. 653, 658, 395 S.E.2d 464, 

467 (1990); Code §§ 20-107.1(3), -108.1(B)(10). Although neither 

the written statement of facts nor the trial court's order 

expressly indicates that the trial court considered this factor 

when it determined the amount of the reduction in father's 

obligations, the trial court is presumed to have "properly 

applied the law." Reece, 22 Va. App. at 372, 470 S.E.2d at 151. 

 Moreover, after considering the limited evidence in the record 

regarding the standard of living established by the parties prior 

to their divorce, we cannot say that the trial court's 

consideration of this factor in its overall analysis was 

erroneous. 

 V. 

CONSIDERATION OF MOTHER'S ASSETS 

 Similarly, nothing in the record affirmatively indicates 

that the trial court improperly considered the assets obtained by 

mother from either inheritance or equitable distribution. 

Although mother argues that the trial court considered these 

assets "beyond the extent to which [they] produce income," the 

trial court's order indicates that it considered only the 

"passive income" produced by her assets. Based on the record 

before us, we cannot say that the trial court's consideration of 
 8 

mother's assets was erroneous. 

 After considering the circumstances of this case, we deny 

both parties' requests for attorney fees and costs related to 

this appeal. 

 For the foregoing reasons, we affirm the order of the trial 

court. 

 Affirmed.