COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Senior Judge Cole 

Argued at Richmond, Virginia 

KRISHAN RANA 

 MEMORANDUM OPINION* BY 

v. Record No. 1808-99-2 JUDGE JAMES W. BENTON, JR. 

 APRIL 11, 2000 

SHAKUNTLA RANA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 Lawrence D. Diehl for appellant. 

 Mary Burkey Owens (Ishnelia I. Gubb; Cowen & 

Owen, on brief), for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 Krishan Rana appeals the trial judge's denial of his motion 

to modify spousal support paid to Shakuntla Rana, his former wife. 

The husband contends the trial judge erred by failing to find (1) 

that a material change in circumstances resulted from his 

increased debt and the wife's lessened need for support, (2) that 

the wife's employment following the divorce and subsequent 

unemployment was a material change of circumstances, (3) that the 

wife was voluntarily unemployed, and (4) that the evidence 

contained sufficient proof to impute income to the wife. Both 

parties seek attorney's fees and costs for this appeal. For the 

reasons that follow, we affirm the trial judge's decision. 
I. 

 As the party seeking to modify spousal support, the husband 

bore the burden "to 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); see also Code § 20-109. "[T]he 'circumstances' which 

make 'proper' an increase, reduction or cessation of spousal 

support under Code § 20-109 are financial and economic ones." 

Hollowell v. Hollowell, 6 Va. App. 417, 419, 369 S.E.2d 451, 

452-53 (1988). "We will not disturb the trial judge's decision 

where it is based on an ore tenus hearing, unless it is 'plainly 

wrong or without evidence to support it.'" Furr v. Furr, 13 Va. 

App. 479, 481, 413 S.E.2d 72, 73 (1992) (citation omitted). 

II. 

 The husband contends that several changes occurring after the 

entry of the divorce decree were material changes in 

circumstances. The husband testified that his current expenses 

greatly exceeded his expenses at the time of the divorce and that 

he had a monthly deficit of $2,745. The husband also testified 

that he had almost no debt at the time of the divorce and now had 

$50,000 in debt. The husband presented evidence that wife's 

current expenses were $2,326 and that her expenses at the time of 

the divorce were $3,663. 

 Although the husband testified that his spousal support 

payments increased his debt, he admitted on cross-examination that 

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his debts included attorney's fees and other costs. The husband 

also admitted that his claimed expenses included costs 

attributable to his recently purchased new home and his current 

spouse, who is not employed outside their home. Although he 

claimed as an expense a monthly payment of $400 to a retirement 

account, he admitted that the payment was voluntary. The husband 

owns four pieces of rental property and testified at the hearing 

that they produced no income. An April 1999 loan application, 

however, showed that he claimed $2,500 in monthly income from 

those properties. The husband also admitted that he overstated 

several of the loan amounts he was obligated to repay. The 

evidence further proved that although the husband's income 

increased from approximately $58,000 to $68,000, he had listed his 

income as $62,458. 

 The wife admitted that her monthly expenses had decreased 

since the time of the divorce decree. She received the marital 

residence under the terms of the decree. She testified, however, 

that because the husband was continually late in paying spousal 

support, she incurred late payments and additional interest on the 

mortgage throughout 1997 and 1998. Concerned that the lender 

would foreclose on the property, the wife sold her home. That 

evidence was uncontested. After the sale, the wife's housing 

expenses decreased from $1,708 for a mortgage and $465 for 

utilities to $510 for rent and $200 for utilities. 

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 Husband contends that in addition to changes in their income 

and expenses, the evidence proved the wife was voluntarily 

unemployed. The evidence established that the wife was not 

employed at the time of the divorce but began working at a retail 

store shortly after the decree was entered. She testified that 

she worked because she had no money for food when the husband's 

payments were late. She continued to work at the store for 

approximately two and one-half years and earned $5.75 an hour. 

Although the wife admitted that she could understand simple 

English, she testified that language difficulties required her to 

call her manager to resolve problems with customers. At the time 

of the hearing, however, the wife was not working and had not 

worked since she relocated to Blacksburg in December 1998 

following the sale of her home. 

 The wife's evidence also established that because husband 

refused to allow her to drive during the marriage, she cannot 

drive and must rely upon public transportation or her sons. After 

she sold her house, she moved to Blacksburg to be near one of her 

sons. Although the husband's expert testified that wife was 

immediately employable at $6.00 an hour in entry level positions, 

he admitted that he had not considered wife's level of English 

comprehension, the proximity of jobs to public transportation, or 

that she could not apply for jobs until she replaced her green 

card. 

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III. 

 The trial judge found that husband failed to prove "a 

material change in circumstances which would warrant a reduction 

in spousal support." Although we agree with the husband that the 

evidence proved changes in the parties' economic circumstances, 

see Hollowell, 6 Va. App. at 419, 369 S.E.2d at 452, we cannot say 

that the trial judge erred in finding that the changes did not 

warrant a modification in support. 

 "[W]hen a material change of circumstances has occurred, the 

trial court must determine whether the changed circumstances 

warrant or justify a change in the amount of support." Blackburn 

v. Michael, 30 Va. App. 95, 103, 515 S.E.2d 780, 784 (1999). Not 

every material change of circumstances warrants a modification of 

support. See id.

 The moving party in a petition for 

modification of support is required . . . to 

prove both a material change in 

circumstances and that such change justifies 

an alteration in the amount of support. A 

material change in circumstances, standing 

alone, does not provide a basis for the 

trial court to modify its support decree. A 

modification is appropriate only after the 

court has considered the material change in 

circumstances in relation to . . . the 

present circumstances of both parties 

. . . . Thus, in a petition for reduction 

of support, the trial court must assess 

whether the requested reduction, based on a 

material change in circumstances, is 

justified in light of the overall 

circumstances of both parties . . . . 

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Yohay v. Ryan, 4 Va. App. 559, 566, 359 S.E.2d 320, 324 (1987); 

see also Furr, 13 Va. App. at 481, 413 S.E.2d at 73. 

 The evidence proved that the husband's income had 

increased; however, it raised doubt about the extent of the 

husband's actual debts. Indeed, the evidence concerning his 

claim of increased expenses was highly problematic. 

Furthermore, the evidence proved that as a result of the 

husband's tardy payment of spousal support, the wife's 

circumstances drastically changed. She testified that she had 

to work in order to buy food and that she had to sell her home 

to avoid foreclosure. The trial judge could have found that the 

wife's move to Blacksburg was a consequence of this disruption 

and of her need to be in a place where she could rely upon her 

son for her transportation needs. 

 Furthermore, the evidence would support a finding that the 

wife's initial employment was caused by the need to have income 

when the husband's payments were tardy and that her subsequent 

unemployment was not voluntary. "Whether a person is voluntarily 

unemployed or underemployed is a factual determination." 

Blackburn, 30 Va. App. at 102, 515 S.E.2d at 784. 

 Based upon the evidence in the record, we find no error in 

the trial judge's finding that the husband failed to prove "a 

material change in circumstances which would warrant a reduction 

in spousal support." In view of the failure of the evidence to 

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prove the wife was voluntarily unemployed, we need not address 

the issue of imputation of income. 

IV. 

 Both the husband and the wife request attorney's fees and 

costs incurred in this appeal. See O'Loughlin v. O'Loughlin, 23 

Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). We deny both 

requests. 

 Accordingly, we affirm the trial judge's decision. 

 Affirmed. 

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