COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Frank 

Argued at Alexandria, Virginia 

ROBERT E. YOUNG, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 2380-99-4 JUDGE LARRY G. ELDER 

 APRIL 4, 2000 

MARY PATRICIA YOUNG 

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY 

Carleton Penn, Judge Designate 

 Julia S. Savage (Walker, Jones, Lawrence, 

Duggan & Savage, P.C., on briefs), for 

appellant. 

 Robin C. Gulick (Robin C. Gulick, P.C., on 

brief), for appellee. 

 Robert E. Young, Jr., (husband) appeals from a decision of 

the Fauquier County Circuit Court (trial court) denying his 

request for a reduction in spousal support payments to Mary 

Patricia Young (wife), his former wife. On appeal, husband 

contends the trial court erroneously (1) excluded his testimony 

about wife's education, employment history and marketable 

skills; (2) granted wife's motion to strike at the conclusion of 

husband's evidence; and (3) awarded wife attorney's fees. We 

hold the trial court erroneously excluded husband's testimony 

and applied the improper standard in ruling on the motion to 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.
strike. Therefore, we reverse and vacate the ruling of the 

trial court on all issues and remand for further proceedings 

consistent with this opinion. 

 The parties separated after twenty years of marriage and 

entered into a spousal support and property settlement agreement 

on July 24, 1996. The final decree of divorce, entered August 

12, 1996, affirmed, ratified and incorporated the parties' 

agreement and paraphrased the terms relating to spousal support, 

providing as follows: 

[Husband] shall pay to [wife], as 

maintenance and support, the sum of 

$5,875.00 per month . . . . Said 

maintenance and support payments shall 

terminate upon the death of either party or 

Wife's remarriage, whichever event occurs 

first. Wife and Husband reserve the right 

to petition a court of competent 

jurisdiction to modify the amount of 

maintenance and support based upon a 

significant change of financial 

circumstances of either party. 

 At the hearing on husband's request for a modification of 

support, husband testified and offered evidence from a 

vocational expert about husband's decrease in earning capacity 

and wife's increase in earning capacity. On wife's motion to 

strike husband's evidence, the trial court ruled husband "failed 

to meet the burden of showing a material change in circumstances 

by a preponderance of the evidence" because he bore the risk of 

income reduction that came with his job change. The trial court 

expressly did not reach the issue of wife's employability, 

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holding that husband was obliged to pay support under the terms 

of the parties' agreement and "there's no condition set out in 

[the relevant portion of the agreement] that would require her 

to seek employment if he voluntarily reduced his income." The 

court then granted wife's request to require husband to pay her 

attorney's fees. 

 In ruling on a motion to strike at the end of a plaintiff's 

evidence, 

the trial court [must] accept as true all 

the evidence favorable to the plaintiff as 

well as any reasonable inference a jury 

might draw therefrom which would sustain the 

plaintiff's cause of action. The trial 

court is not to judge the weight and 

credibility of the evidence, and may not 

reject any inference from the evidence 

favorable to the plaintiff unless it would 

defy logic and common sense. 

Austin v. Shoney's, Inc., 254 Va. 134, 138, 486 S.E.2d 285, 287 

(1997). This same standard applies to an appellate court's 

review of a trial court's decision to strike the evidence in a 

bench trial. See Claycomb v. Didawick, 256 Va. 332, 335, 505 

S.E.2d 202, 204 (1998). 

 When a trial court determines the amount of spousal support 

to be paid pursuant to Code § 20-107.1, the court retains the 

power to modify the award of support. See Code § 20-109. A 

party requesting modification must prove a material change in 

circumstances that warrants modification of support. See Furr 

v. Furr, 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992). The 

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material change "must bear upon the financial needs of the 

dependent spouse or the ability of the supporting spouse to 

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

451, 452 (1988). "Spouses deemed entitled to support have the 

right to be maintained in the manner to which they were 

accustomed during the marriage, but their needs must be balanced 

against the other spouse's ability to pay." Floyd v. Floyd, 1 

Va. App. 42, 45, 333 S.E.2d 364, 366 (1985). A spouse seeking 

support "is obligated to earn as much as he or she reasonably 

can to reduce the amount of the support needed." Srinivasan v. 

Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990). 

This requirement flows from the language of Code § 20-107.1, 

which "directs the trial court to consider . . . the earning 

capacity of the 'parties.'" Srinivasan, 10 Va. App. at 734, 396 

S.E.2d at 679. 

 Here, the parties agreed on the amount of spousal support 

and did not ask the trial court to make a determination pursuant 

to Code § 20-107.1. Although any modifications to the spousal 

support upon which the parties agreed must be made in compliance 

with the agreement, see Code § 20-109, the relevant terms of the 

parties' agreement here are in keeping with the law which 

applies in the absence of an agreement. Both permit 

modification on a "significant" or "material" change in the 

financial circumstances of either party. 

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 Under the terms of the parties' agreement, we hold the 

trial court erred in granting wife's motion to strike husband's 

evidence. First, the trial court erroneously determined that 

wife had no duty under the parties' agreement to seek 

employment. Although no express provision of the agreement 

required wife to seek employment, the agreement specifically 

permits modification upon a change in the financial 

circumstances of either party. Evidence that wife was able to 

work and earn an income and that she was unable to do so at the 

time the parties executed the agreement would establish a change 

in circumstances. See Pellegrin v. Pellegrin, __ Va. App. ___, 

___, ___ S.E.2d ___, ___ (2000) (holding that parties' agreement 

upon divorce, under which husband was obligated to pay tuition 

for wife's education and was entitled to a reduction in spousal 

support payments to wife if she attained a certain level of 

income, contained implicit requirement that wife would make 

reasonable effort to obtain employment). 

 On wife's motion to strike, the trial court was required to 

view the evidence and all reasonable inferences therefrom in the 

light most favorable to husband.1 So viewed, the evidence 

supported a finding that at the time the parties signed the 

separation agreement, wife was a recovering alcoholic who was 

unable to work "because of her rehabilitation program and her 

 1

 Of course, the trial court would be free to make a 

contrary finding after hearing all the evidence. 

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admissions for alcoholism." Wife underwent eight 

hospitalizations for her alcoholism between 1992 and 1995 and 

attended up to three Alcoholics Anonymous meetings each day. 

Husband's vocational expert testified that wife's history of 

repeated hospitalization could have affected her employability 

after only one year of sobriety. In contrast, the evidence 

established that at the time of the hearing on husband's request 

to reduce spousal support, wife was immediately employable in 

the Warrenton area in a variety of different positions and had 

an initial annual earning capacity of $15,600 to $17,690. This 

evidence required the trial court to deny wife's motion to 

strike. 

 We hold the trial court also erred in concluding husband's 

evidence, viewed in the light most favorable to husband, failed 

to prove a material change in circumstances as to his own 

earning capacity.2 So viewed, the evidence supported a finding 

that when the parties executed the settlement agreement, 

husband's last full year of income from his medical practice in 

1995 was $366,000--$352,000 in earned income and the remainder 

from rental of the practice's office building--and that his 

income at the time of the settlement agreement in 1996 was on 

track with his 1995 earnings. His job-earned income for all of 

 2

 Again, the trial court would have been within its 

authority to reach these conclusions after hearing all the 

evidence. 

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1996, while he was still in private practice in Warrenton, was 

$265,000, a reduction of $87,000 from the previous year. This 

was also a reduction of $65,000 from the 1993-to-1995 average of 

$330,000. Husband testified that this decline resulted from an 

increase in competition among area obstetricians, changes in 

healthcare reimbursement rates and various other causes, and was 

one of several factors motivating his departure from the 

practice and his move to Michigan. After his arrival in 

Michigan, his income decreased further due in part to changes in 

federal law for medicaid reimbursement. Husband's vocational 

expert testified that the average income range in Adrian, 

Michigan, for obstetricians of husband's level of experience was 

comparable to or greater than the average income range in 

Warrenton, Virginia. By the time of the hearing on husband's 

request for modification of support, husband's salary had 

decreased to $200,000 per year. 

 In granting the motion to strike, the trial court relied on 

husband's income tax returns which showed an increase rather 

than a decrease in his gross income between 1996 and the time of 

the hearing. However, husband testified that some of the income 

reflected on his tax returns resulted from the tax consequences 

to him from carrying out certain requirements of the parties' 

property settlement. Wife rather than husband received a 

portion of the funds on which husband was taxed, thereby 

artificially inflating the annual income listed on husband's tax 

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returns. Also, other non-salary portions of his income resulted 

from the forced sale of assets he received in the equitable 

distribution, which could not be counted in their entirety as 

income to him. See Barker v. Barker, 27 Va. App. 519, 529-30, 

500 S.E.2d 240, 245 (1998) (holding that earnings on assets 

received in equitable distribution must be considered in 

determining spousal support but that it is error to consider 

assets themselves as income). 

 Therefore, the evidence, viewed in the light most favorable 

to husband, supported a finding that wife's earning capacity had 

increased materially and that husband's earning capacity had 

decreased materially, through no fault of his own, since the 

parties entered into the spousal support agreement. For these 

reasons, we hold the trial court committed reversible error in 

granting wife's motion to strike. 

 Husband also contends the trial court erroneously excluded 

portions of his testimony on wife's employment history and 

marketable skills. We agree. A trial court's refusal to admit 

evidence is reversible upon a showing of an abuse of discretion. 

See Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 

842 (1988). As set out above, wife's ability to earn an income 

was relevant to establishing whether a material change in 

circumstances justifying a modification of support had occurred 

since the parties executed the property settlement agreement 

and, if so, in determining wife's current earning capacity. See

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Srinivasan, 10 Va. App. at 734, 396 S.E.2d at 679; Hollowell, 6 

Va. App. at 419, 369 S.E.2d at 452. Any marketable skills and 

abilities wife demonstrated during the marriage, absent evidence 

she no longer possessed those skills or abilities, were 

probative of her earning capacity at the time of the hearing. 

Therefore, the trial court abused its discretion in excluding 

husband's testimony on wife's ability to quilt and smock and her 

successful operation of a horse training business. 

 Husband also challenges the trial court's award of 

attorney's fees to wife. Because we reverse and vacate the 

trial court's ruling on wife's motion to strike, we also vacate 

the award of attorney's fees.3

 For these reasons, we hold the trial court erroneously 

excluded husband's testimony and applied the improper standard 

in ruling on the motion to strike. Therefore, we reverse and 

vacate the ruling of the trial court on all challenged issues 

and remand for further proceedings consistent with this opinion. 

Reversed, vacated and remanded.

 3

 This ruling does not preclude the court from entertaining 

another request for attorney's fees if wife prevails on remand 

following a hearing on all the evidence. 

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