COURT OF APPEALS OF VIRGINIA
Present: Judges Chafi n, Russell and AtLee Argued at Richmond, Virginia

JUDITH A. LaBRIE MEMORANDUM OPINION * BY v. Record No . 0700-17-2 JUDGE TERESA M. CHAFIN DECEMBER 27, 2017 DAVID F. LaBRIE

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY David E. Johnson, Judge Michael S. Ewing (Batzli Stiles Butler PC, on brief), for app ellant. David E. Noll (Christopher C. Le slie; Cravens & Noll, P.C., o n brief), for appellee.

Judith A. LaBrie (“wife”) appeal s an order granting David R. L aBrie’s (“husband”) motion to reduce spousal support. On appeal, wife argues that the circui t court erred when it refused to admit a transcript from a prior hearin g into evidence. She further c ontends that the circuit court erroneously found th at husband’s second m otion was not barred b y the principles of res judicata

. Finally, wife argues that the trial court mistakenly found that husband proved a material change in circumstances supporting the mod ification of the court’s prior support decision. For the following reasons, we affirm the decision of the trial court. Background “When reviewing a trial court’s decision on appeal, we view th e evidence in the light most favorable to the prevailing par ty, granting it the benefit of a ny reasonable inferences.” Congdon v.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED‐ 2 - Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003) (citations omitted). So viewed, the evidence is as follows. Husband and wife were married o n December 6, 19 86. They were divorced by a final decree entered on August 19, 2011. Th e final decree ordered husband t o pay wife spousal support in the amount of $4,350 per m onth. At the time of the final decree, h usband was employed by Altria Group, Inc., and earned between$170,000 and $ 180,000 each year . On February 2 4, 2012, Altria eliminated husband’s position du e to corporate downsizing. He received a severance package, which included his full sal ary for eighteen months. Husband underwent surgeries in 2007, 2008, and 2 011, in an eff ort to relieve chronic back and neck pain. Husband’s treating physician eventually determined that he was completely disabled. Husband applied for so cial security disab ility benefits, and he began receiving these benefits in August 2012. In March 2013, husband filed a motion to reduce or terminate s pousal support. In August, 2014, the circuit court denied h usband’s motion. Although the circuit court did not find that husband voluntarily left his job , it found that he voluntarily remained unemployed. The circuit court further found that husba nd’s disability “did not prevent him from finding employment.” Husband was ordered to pay attor ney’s fees to wife in the amoun t of $21,475.20. Husband appealed to this Court, and this Court affirmed the circuit cou rt’s decision. LaBrie v. LaBrie, No. 1894-14-2, 2015 Va. App. LEXIS 102 (Va. Ct. App. Mar. 31, 2015)

. In March 2016, husband filed a second motion to terminate or r educe spousal support. Husband argued that he had been u nable to find employment despi te his “significant attempts” to do so. In response, wife alleged t hat husband’s motion was barred by res judicata

. The circuit court rejected wife’s argument, emphasizing that t he final determination in 2014 was that husband’s disability did not prevent him from finding employment. The circuit court then‐ 3 - found that husband’s significa nt but ultimately unsuccessful at tempts to obtain employment, in addition to his depleted financi al assets and earning power, es tablished a material change in circumstances. The circuit court imputed to h usband an annual income of $61,5 00, taking into account his retirement and disabilit y income, the testim ony of vocational e xperts, and the job postings for which husband applied. Husband’s motio n to reduce or terminate spous al support was granted, and his monthly spousal support obligat ion was reduced from of $4,350 t o $2,000 per month. Husband was ordered to pay attorney’s fees to wife in the amount of $5,000. During closing argument, wife asked to proffer the transcript from the 2014 spousal support hearing. She maintain ed that the transcript would “clarify wha t the judge ruled [i n 2014]” in order to determine whether husband’s current c laim was, in fact, liti gated and ruled upon in 2014. 1 The circuit court found that the 2014 transcript “was not proffered in accordance with Rule 2:103 [because it] was never moved as evidence nor received nor marke d by the Court as evidence.” 2 On March 16, 2017, the circuit court heard post- trial motions, including wife’s motion to include the transcript from the 2014 spousa l support hearing in the record for purposes of this appeal. By letter opinion dated A pril 7, 2017, the trial court denied wife’s motion, but noted that the transcript was already part of the court’s record. 3 The circuit court further emphasized that the

1 Wife also orally proffered two unspecified portions of the 201 4 transcript at the beginning of the 2016 trial. At that time, she only represente d that the portions of the transcript would prove that husband lost his job because of his own volunt ary acts. The circuit court declined to accept them at that time.

2 Virginia Rule of Evidence 2:103( a)(2) states that “[error] may not be predicated upon admission or exclusion of evide nce, unless: . . . [a]s to evide nce excluded, the substance of the evidence was made known to the court by proffer.”

3 The 2014 motion was heard by Judge Samuel E. Campbell. The 20 16 motion, however, was heard by Judge David E. Johnson.‐ 4 - record was “sufficient ‘to allo w the appellate c ourt to determi ne whether the trial court erred in excluding the [transcript] and, i f so, whether that error was h armless.’” (quoting Creamer v. Commonwealth, 64 Va. App . 185, 195, 767 S.E. 2d 226, 230 (2015)) . Wife appealed to this Court. Analysis I. The 2014 Transcript was Unnecessary to Rule on the Res Judicata Issue On appeal, wife argues that t he circuit court erred by refusin g to admit the 2014 transcript into evidence during the 2016 hear ing. She further contends th at the consideration of the 2014 transcript was necessary in order for the circuit court to rule on the issue of res judicata . We disagree. “The admissibility of evidence is within the broad discretion o f the trial court, and a ruling will not be disturbed on a ppeal in the absence of an abu se of discretion.” Logan v. Fairfax Cty. Dep’t of Human Dev., 13 Va. App. 123, 132, 409 S.E.2d 460, 465 (1991) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)). “The bar of res judicata precludes relitigation of the same cause of action, or any par t thereof, which could have been litigated between the same parti es and their privies.” Smith v. Ware, 244 Va. 374, 376, 421 S.E.2d 444, 445 (1992). Wife asserts that reviewing the transcript of the prior proceeding is a “f undamental principal of the doct rine of res judicata .” However, wife cites no cases, and we are not aware of any, that support such an assertion. The Supreme Court of Virginiahas ruled that when a party fail s to file the record of a prior proceeding to a motion asserting res judicata or fails to offer it into evidence, such failures are fatal to the appeal of such ruling. Bernau v. Nealon, 219 Va. 1039, 1041, 254 S.E.2d 82, 84 (1979). However, the Supreme Court later offered an exception in situations where, “[f]or example, a . . . court could enter an order that contains a det ailed summary of the proceedings or, if requested by a party, sign a s tatement of facts.” Scales v. Lewis, 261 Va. 379, 383, 541 S.E.2d‐ 5 - 899, 901 (2001). In such cases, reviewi ng the transcript of th e prior hearing “might be useful, [but] it is not essential . . . .” Id. These cases do not sup port wife’s assertion that a court must admit the transcript of the pr ior hearing into evidence. “‘It is the firmly established l aw of this Commonwealth that atrial court speaks only through its written orders.’” A lbert v. Albert, 38 Va. App. 28 4, 297, 563 S.E.2d 389, 396 (2002) (quoting Davis v. Mullins, 251 Va. 141, 148, 466 S.E.2d 90, 94 (1996)); see also Berean Law Grp., P.C. v. Cox, 259 Va. 622, 626, 528 S.E.2d 108, 111 (2000) ; Austin v. Consolidation Coal Co., 256 Va. 78, 81, 501 S.E.2d 161, 162 (1998). In order to determine which spe cific issues are barred from relitigation in the usual instance of a “general verdict,” the reviewing court must “examin e the record of [the] prior proceeding, taking into account the pleadings, evidence, charge , and other relevant matter, and conc lude whether a rational jury could have grounded its verdict upon an issue other than that which the [litigant] seeks to f oreclose from consideration.” Commonwealth v. Davis, 290 Va. 362, 370, 777 S.E.2d 555, 558 (2 015) (quoting Ashe v. Swenson, 397 U.S. 436, 444 (1970)). Consequently, the examinat ion of the record of a prior hearing is necessary on ly where the ruling of the court is so g eneralized or technical that the trial court is uncertain of the basis upon which the prior decision w as made. This Court has reached determinations of whether res judicata applies without consulting a transcript in cases involv ing spousal and child support. Thi s Court considered the issue of res judicata regarding modification of a child support order that “deviated significantly from the guidelines” in Hiner v. Hadeed, 15 Va. App. 575, 577, 425 S.E.2 d 811, 812 (1993). In that case, both mother and father filed mo tions to modify child support, a nd the trial court denied both motions. Id. Neither the trial judge’s lette r opinion nor order indicated th at he had determined the parties’ joint gross income or calculated th e presumptively correct amount of c hild support according to the guidelines. Furthermore, neith er the order nor the opinion let ter‐ 6 - contained a written finding explai ning those factors the judge considered that presumably mad e the guideline amount unjust and inappropriate and justified the j udge’s refusal to modify an aw ard which deviated significan tly from the guidelines. Id. at 577-78, 425 S.E.2d at 813. Neith er party appealed that order. A short time later, father once again motioned for a reduc tion in his support obligation. The trial court again denied his motion. Id. at 578, 425 S.E.2d at 813. This Court ruled that, even though the trial court did not make written findings as require d, because a material change incircumstances was not alleged or proven, the matter of support was res judicata . Id. at 581, 425 S.E.2d at 815. Therefore, Hiner contradicts wife’s cont ention that a court is required to review the trans cript in order to determine whether res judicata applies. To the contrary, Hiner suggests that a review of the pleadings, orders, and letter opinions is sufficient. The circuit court in this case considered whether husband’s 20 16 motion was barred by res judicata. In making its decision, the c ourt examined the 2014 motion, 201 4 letter opinion, and 2014 order, as well as the 2016 motion and the evidence pre sented in the 2016 hearing. The circuit court determined that res judicata did not apply. The 2014 order was not so generalized or so technical that the circuit court was uncertain of the bas es of the decision that was made. The 2014 letter opinion made it cl ear that the circuit court de termined that husband’s “disability does not prevent him from working” and his inability to pay “is due to his own voluntary act by remaining voluntarily unemployed. ” This detailed and succinct finding made the circuit court’s examination of the 2014 transcript unnecessary. 4

4 We find that the circuit court erred in its pos t-trial ruling that the 2014 trans cript was a part of the record for purposes of this appeal. However, we co nclude that the circuit court’s error in such ruling was harmless, as the 2014 transcript was not nec essary for the resolution of this case. Therefore, it is not grounds for reversal. See Mall Amu sements, LLC v. Va. Dep’t of Alcoholic Bev. Control, 66 Va. App. 605, 617, 790 S.E.2d 245, 2 51 (2016).‐ 7 - II. Res Judicata Did Not Bar Husband’s 2016 Motion Wife next contends that the circ uit court erred in failing to r ule that husband’s 2016 motion was barred by res judicata

. Res judicata principles dictate that an unappealed support order can be modified only upon a showing of a material change in circumstances. See Barton v. Barton, 31 Va. App. 175, 178, 522 S.E.2d 373, 374 (1999). The party seeking the modification of support “has the burden of provi ng a material change by a pr eponderance of the evidence.” Broadhead v. Broadhead, 51 Va. App. 170, 179, 655 S.E.2d 748, 7 52 (2008) (citation omitted). This burden involves not merel y a showing of a change in circum stances, but proof that the “change warrants a modifica tion of support.” Street v. Street, 25 Va. App. 380, 386, 488 S.E.2d 665, 668 (1997) ( en banc ) (citation omitted); Reece v. Reece, 22 Va. App. 368, 372-73, 470 S.E.2d 148, 151 (1996). “Whether [a claim] is precluded by res judicata is a question of l aw that we review de

novo .” Caperton v. A.T. Massey Coal Co., Inc., 285 Va. 537, 548, 7 40 S.E.2d 1, 7 (2013). Nevertheless, res judicata does not apply where there has been a material change in circumstances. There is no for mula by which a fact finder can determine whether a series of changed circumstances are indee d material, thereby warranting t he modification of a prior support award. Consequently, we do not review such judgments de novo . We ask only whether the trial judge abus ed his discretion. An abuse of discretion occurs only w hen “reasonable jurists” co uld not disagree as to the proper decision. This principle necessa rily implies that, for some decisions , conscientious jurists could r each different conclusions based on exa ctly the same facts — yet sti ll remain entirely reasonable. Thi s bell-shaped curve of reasonab ility governing our appellate review r ests on the venerable belief th at the judge closest to the contes t is the judge best able to disc ern where the equities lie. Hamad v. Hamad, 61 Va. App. 593, 607, 739 S.E.2d 232, 239 (2013 ) (quoting Brandau v. Brandau, 52 Va. App. 632, 641, 666 S.E.2d 532, 537 (2008)).‐ 8 - Trial courts “have t he authority to interpret their own orders .” Fredericksburg Constr. Co., Inc. v. J.W. Wyne Excavating, Inc., 260 Va. 137, 144, 530 S.E.2d 148, 152 (2000). When examining a trial court’s order on appeal, we defer to the inte rpretation adopted by that lower court. Id. Therefore, our analysis in this case requires a de termination of whether the circuit court abused its discretion w hen interpreting its own 2014 orde r. The Supreme Court of Virginiahas “consistently held that a lit igant who seeks to bar a claim based upon the defense of r es judicata must establish fou r elements: identity of the remedy sought; identity of the cause of action; identity of the partie s; and identity of the quality of the persons for or against whom the claim is made.” Davis v. Marsh all Homes, Inc., 265 Va. 159, 164, 576 S.E.2d 504, 506 (2003).
A. Claim Preclusion Wife contends that husband’s 2016 motion is barred by claim pre clusion. “ Res judicata involves both issue and clai m preclusion.” Funny Guy, LLC v. L ecego, LLC, 293 Va. 135, 142, 795 S.E.2d 887, 890 (2017). See generally Lee v. Spoden, 290 V a. 235, 245-46, 776 S.E.2d 798, 803-04 (2015). “Issue preclusion ba rs relitigation of common f actual issues between the same or related parties.” Funny Guy, 293 Va. at 142, 795 S.E.2d at 890 . Claim preclusion “bars the assertion of legal or equitable rights of action, even if they were not specifically resolved in earlier litigation . . . .” Id. (quo ting Kent Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure § 14.11[B][5], at 1214 (6th ed. 2014)). Husband’s 2014 motion to reduce his spousal support obligation was based on the fact that his position at Altria was eliminated. In that motion, hu sband also claimed that he “suffered serious medical conditions.” The circuit court found that “[hu sband’s] inability to pay spousal support [was] due to his own vol untary act by remaining volunta rily unemployed.”‐ 9 - Husband’s 2016 motion to reduce spousal support, however, prese nted new facts. Husband referenced his “significa nt attempts to find some type of employment” and that despite his attempts, “he ha[d] not bee n successful obtaining employmen t.” As husband’s 2016 motion was determined on a new set of material facts, it was not barre d by claim preclusion. See Lee, 290 Va. at 245, 776 S.E.2d at 803 B. Collateral Estoppel Wife further claims that husba nd is “collaterally estopped from claiming that he lost his job with Altria thr ough no fault of his own.” Collateral estop pel “is the preclusive effect . . . based upon a collateral and diffe rent cause of action, . . . [i n which] the parties to the first action and their privies are precluded from litigating any issue of fa ct [or law] actually litigated and essential to a valid and final pe rsonal judgment in the first a ction.” Bates v. D evers, 214 Va. 667, 671, 202 S.E.2d 917, 921 (1974) (footnote omitted). Where the issue in the earlier proceeding was actually litigate d and the parties are the same, the preclusive effect of res judicata and collateral est oppel operates in the same manner. Lastly, [a] judgment on the merits, f airly rendered, by a court of competent jurisdiction, having cogn izance both of the parties a nd the subject matter, however erroneous it may be, is conclusive on the parties and their privies unt il reversed or set aside in a direct proceeding for that purpose and i s not amenable to collateral attack. Storm v. Nationwide Mut. Ins. Co., 199 Va. 130, 133, 97 S.E.2d 759, 761 (1957) (quoting 8 Michie’s Jurisprudence, Former Adjudication § 10). To succeed in showing that husband’s 2016 motion is barred by c ollateral estoppel, wife must prove that husband’s 2016 mo tion presented an issue that w as “actually litigated and essential to a valid and final pe rsonal judgment in the first a ction.” Bates, 214 Va. at 671, 202 S.E.2d at 921. Husband’s 2014 motion r equested that the circui t court reduce or terminate his spousal support obligation based on his disability and loss of employment. The fact that he‐ 10 - remained unemployed voluntarily w as the deciding factor in the circuit court’s denial of husband’s 2014 motion. The circu it court found that “[husband’ s] disability [did] not prevent him from finding employment.” The basis of husband’s 2016 moti on was the ineffectiveness of his search for employment, constituting a change in circumstanc es. Therefore, res judicata did not bar husband’s 2016 motion. III. Material Change in Circumstances Wife argues that husband failed t o prove a material change in c ircumstances since the first hearing, and for that r eason, the circuit court erred in granting his 2016 motion to reduce or terminate his spousal support obligation. Specifically, wife c ontends that although husband claimed he has looked for employm ent, the circuit court should have considered the reasonableness of husband’ s job search efforts. The party seeking modification of t he spousal support award has the burden of proof to show by a preponderance of the evi dence the justification for t he requested modification. Not only must the moving party show a change in circumstances, but also that the equities of the case demonstrate that “this change w arrants a modification of suppor t.” Dailey v. Dailey, 59 Va. App. 734, 742-43, 722 S.E.2d 321, 325 (2012) (citation omit ted); Street, 25 Va. App. at 386, 488 S.E.2d at 668 (citation omitted); Moreno v. Moreno, 24 Va. App. 190, 195, 480 S.E.2d 792, 795 (1997) (citation omitted); R eece, 22 Va. App. at 372-73, 47 0 S.E.2d at 151. Furthermore, when the payor ex-sp ouse seeks modification of an award, he “must also show that his lack of ability to pay is not due to his own volu ntary act or because of his neglect.” Edwards v. Lowry, 232 Va. 110, 112-13, 348 S.E.2d 259, 261 (198 6). In order t o prove that a change in circumstances justifie s termination or modification o f the support award, the payor ex-spouse “must establish that he is not ‘voluntarily unemploye d or voluntarily under‐ 11 - employed.’” Antonelli v . Antonelli, 242 Va. 152, 154, 409 S.E. 2d 117, 119 (1991) (quoting Code § 20-108.1(B)(3)). Code § 20-109 grants courts contin uing jurisdiction to modify awards where changed circumsta nces are demonstrated. Thus, “[the] statutory scheme recogni zes that comparative needs and capacities change as circumstan ces change, that changes are not fairly predictable, and that s pousal support awards must be determined in light of contemporary circumstances and . . . redetermined [if necessary] in light of new circumstances.” Blank v. Blank, 10 Va. App. 1, 4, 389 S.E.2d 723, 724 (1990) (q uoting Jacobs v. Jacobs, 219 Va. 993, 995, 254 S.E.2d 56, 58 (1979)). Because the determination of whe ther a set of changed circumsta nces are truly material requires an exercise in conscie ntious judgment, we only ask whe ther the trial judge abused his or her discretion. “A tria l court has broad discretion in setting spousal support and its ‘determination “will not be disturbed except for a clear abuse of discretion.”’” Brooks v. Brooks, 27 Va. App. 314, 317, 498 S.E.2d 461, 463 (1998) (quoti ng Dodge v. Dodge, 2 Va. App. 238, 246, 343 S.E.2d 363, 367 (1986)). In order to demonstrate such an abuse of discretion, wife must establish that the “judgme nt is plainly wrong or without e vidence to support it.” Code § 8.01-680. See also Calvert v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875, 876 (1994) (“Decisions concerning both types of support rest within the so und discretion of the trial court and will not be reversed on appeal unless plainly wrong or unsu pported by the evidence.”). Given the evidence presented in this case, the circuit court di d not abuse its discretion by granting husband’s motion to redu ce his spousal support obligat ion. The evidence proved that since the time of the 2014 order, husband had applied for over seventy jobs and that his earning capacity had diminished significantly. Taking into account hus band’s retirement and disability income, the testimony of the voca tional experts, and the job po stings for which husband applied,‐ 12 - the circuit court imputed to hus band an annual income of $61,50 0. 5 His efforts in his job search and his reduced earning capacity ind icated that husband’s abili ty to pay spousal support had decreased since the 2014 hearing. Although wife acknowledges that hu sband has conducted a search for employment since the 2014 order, she asks this Court to determine the authentici ty of husband’s claim to have engaged in a reasonable search for employment. When, as he re, a circuit c ourt heard the evidence at an ore tenus hearing, “its factual findings are entitled to great weight” o n appeal. Mayer v. Corso-Mayer, 62 Va. App. 713, 728, 753 S.E.2d 263, 270 (2014) (quoting Mullin v. Mullin, 45 Va. App. 289, 299, 610 S.E.2d 331, 336 (2005)). The circuit court “ascertains a witness’ credibility, determin es the weight to be given to thei r testimony, and has discretion to accept or reject any of the witness’ testimony.” Layman v. Lay man, 62 Va. App. 134, 137, 742 S.E.2d 890, 891 (2013) (quoting Street, 25 Va. App. at 387, 488 S.E.2d at 668). The circuit court heard expe rt testimony that husband would not qualify for his former job due to his lack of a college education. Husband further pr ovided the circuit court with documentation on each job for which he applied along with the r equirements for each job. Given the evidence presented, we conclude that the circuit cou rt did not abuse its discretion in finding that husband establishe d a material change in circum stances. IV. Attorney’s Fees and Costs on Appeal Both husband and wife request that this Court award them attorn ey’s fees and costs incurred on appeal. Whether to award att orney’s fees and costs on appea l is discretionary. This Court takes into consideration factors such as whether the requesting party has prevailed or other reasons exist to support an awa rd of fees and costs. See, e.g. , Estate of Hackler v. Hackler, 44

5 Husband consented to the circu it court’s imputation of income, and it is not at issue on appeal.‐ 13 - Va. App. 51, 75, 602 S.E.2d 426, 438 (2004); O’Loughlin v. O’Lo ughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). This case “addressed appropriate an d substantial issues and . . . neither party generated unnecessa ry delay or expenses in pursui t of its interests.” Hackler, 44 Va. App. at 75, 602 S.E.2d at 438. Therefore, we deny the part ies’ requests for fees incurred in this appeal. Conclusion For the foregoing reasons, we hold that the trial court did no t err by granting husband’s motion to reduce his spousal s upport obligation. We affirm the trial court’s decision. Affirmed.