COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Baker and Elder 

EDWIN EUGENE GELLETLY 

 MEMORANDUM OPINION*

v. Record No. 0782-97-2 PER CURIAM 

 DECEMBER 16, 1997 

ELANA H. GELLETLY 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Theodore J. Markow, Judge 

 (Larry A. Pochucha; Brenner, Dohnal, 

Evans & Yoffy, P.C., on briefs), for 

appellant. 

 (Denis F. Soden; Eileen A. Smith; Spinella, 

Owings & Shaia, on brief), for appellee. 

 Edwin Eugene Gelletly (husband) appeals the decision of the 

circuit court denying his motion to terminate spousal support 

paid to Elana H. Gelletly (wife). Wife did not appeal the 

circuit court's denial of her motion to increase spousal support. 

Husband contends that the trial court erred by (1) failing to 

impute income to wife; (2) imputing income to husband; (3) 

failing to reduce or terminate spousal support payments to wife; 

and (4) failing to find wife in civil contempt. Upon reviewing 

the record and briefs of the parties, we conclude that this 

appeal is without merit. Accordingly, we summarily affirm the 

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

 These parties previously have appeared before this Court. 

 

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

designated for publication. 
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See Gelletly v. Gelletly, Record No. 1127-95-2 (Va. Ct. App. Jan. 

23, 1996). Under the doctrine of the law of the case, the 

parties are bound by this Court's previous determinations. 

 Where there have been two appeals in the same 

case, between the same parties, and the facts 

are the same, nothing decided on the first 

appeal can be re-examined on a second appeal. 

 Right or wrong, it is binding on both the 

trial court and the appellate court, and is 

not subject to re-examination by either. 

Steinman v. Clinchfield Coal Corp., 121 Va. 611, 620, 93 S.E. 

684, 687 (1917). Therefore, legal and factual conclusions 

previously reached are not subject to review in this appeal. 

Imputation of Income to Wife

 Husband contends that the trial court erred by failing to 

impute adequate income to wife. The trial court found that wife 

misled the court during a 1995 hearing when she failed to inform 

the court that she had obtained a full-time job earning $24,243. 

 The court found that wife's explanations for her 1995 testimony 

lacked credibility and gave little weight to wife's current 

income and expense statement. 

 Nonetheless, the court found there was insufficient evidence 

to support the conclusion that it should impute income to wife at 

the rate she earned during the one month she held the full-time 

position. The evidence demonstrated that the quality of wife's 

work was unsatisfactory and that she did not successfully 

complete the probationary period. While husband argued that wife 

lost her full-time position due to misconduct, the trial court 
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found insufficient evidence that it was wife's misconduct that 

caused her to lose the job. Because the court's finding is 

supported by evidence, we will not disturb it on appeal. 

 Moreover, the trial court was entitled to determine what 

weight to afford the testimony of husband's expert witness. The 

expert opined that wife was qualified to earn approximately 

$18,000 to $22,000 annually based in part on the managerial 

experience she acquired in the full-time position, even though 

she lost the job due to poor performance. "It is well 

established that the trier of fact ascertains a witness' 

credibility, determines the weight to be given to their 

testimony, and has the discretion to accept or reject any of the 

witness' testimony." Street v. Street, 25 Va. App. 380, 387, 488 

S.E.2d 665, 668 (1997) (en banc). 

 Based upon the evidence which the court found did not 

demonstrate a material change in circumstances, we find no error 

in the trial court's decision to impute income to wife at her 

previous salary scale of $6.00 an hour rather than $24,243 

annually. 

Imputation of Income to Husband

 Husband contends that the trial court erred by imputing 

income to him in the amount of $85,000. In the previous appeal, 

we affirmed the trial court's finding that husband was capable of 

earning $85,000 annually. That finding became the law of the 

case, modifiable only upon a showing of a material change in 
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circumstances. See Steinman, 121 Va. at 620, 93 S.E. at 687. 

 Upon husband's new motion to terminate spousal support, the 

trial court found husband's testimony unreliable and ruled that 

husband failed to prove a material change in circumstances since 

the last hearing. "The weight which should be given to evidence 

and whether the testimony of a witness is credible are questions 

which the fact finder must decide." Bridgeman v. Commonwealth, 3 

Va. App. 523, 528, 351 S.E.2d 598, 601 (1986). In light of the 

court's finding that the parties failed to demonstrate a material 

change in circumstances, we find no error in the trial court's 

decision to continue to impute income to husband at the level 

previously adjudicated. 

Denial of Motion to Reduce or Terminate Spousal Support

 Husband contends that the trial court erred when it denied 

his motion to reduce or terminate spousal support. As the party 

seeking a modification of spousal support, husband was required 

to prove a material change in circumstances since the last 

hearing and that the change warranted a modification of support. 

See Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 

S.E.2d 28, 30 (1989). The trial court found that neither party 

presented credible evidence. Husband failed to substantiate his 

assertion that there had been a material change in circumstances 

since the last hearing. We will not disturb the credibility 

determinations made by the trial court, nor will we reverse its 

findings of fact based upon the record. 
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Civil Contempt

 Finally, husband contends that the trial court erred by 

failing to hold wife in contempt of court for her testimony in 

the 1995 hearing. A trial court "'has the authority to hold [an] 

offending party in contempt for acting in bad faith or for 

willful disobedience of its order.'" Alexander v. Alexander, 12 

Va. App. 691, 696, 406 S.E.2d 666, 669 (1991) (quoting Carswell 

v. Masterson, 224 Va. 329, 332, 295 S.E.2d 899, 901 (1982)). 

 "Civil as distinguished from criminal 

contempt is a sanction to enforce compliance 

with an order of the court or to compensate 

for losses or damages sustained by reason of 

noncompliance. . . . Since the purpose is 

remedial, it matters not with what intent the 

defendant did the prohibited act. The decree 

[is] not fashioned so as to grant or withhold 

its benefits dependent on the state of mind 

of respondents. . . ." 

Leisge v. Leisge, 224 Va. 303, 309, 296 S.E.2d 538, 541 (1982) 

(quoting McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 

(1949)). Whether to find a party in contempt is left to the 

discretion of the trial court, whose determination will not be 

reversed on appeal absent abuse. Husband has not demonstrated 

that the trial court abused its discretion by failing to hold 

wife in civil contempt. 

 Accordingly, the decision of the trial court is summarily 

affirmed. 

 Affirmed.