COURT OF APPEALS OF VIRGINIA
Present: Judges Be nton, Elder and Beales Argued at Alexandria, Virginia

JON THOMAS DEGA MEMORANDUM OPINION * BY v. Record No. 2512-06-4 J UDGE JAMES W. BENTON, JR. AUGUST 14, 2007 DEBRA ANN VITUS

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Arthur B. Vi eregg, Judge Valerie E. Hughes (Lawrence H. Bowen; The Bowe n Law Firm, on briefs), for appellant. Debra A. Goldenberg (Goldenber g & Phillips, P.C., on brief), for appellee.
This appeal arises from a fina l decree of divorce. Jon Thomas Dega contends the trial judge abused his discretion by (1) orderi ng spousal support to Debra Ann Vi tus, his wife, re troactive to the date of the filing of the bill of complaint, (2) de termining the husband’s income primarily upon the testimony of the wife, (3 ) imputing to the husband $40,000 in rental income without considering the expenses of maintaining the pr operty, and (4) deviating from “the spousal and child support guidelines” without providing a basis for the deviation. We affirm the decree, in part, reverse, in part, and remand for reconsideration.
I. The husband contends the trial judge abus ed his discretion in awarding spousal support retroactive to the date wife filed her bill of complaint. He argues “[t]he Wife made no request . . . for spousal support until the trial, over twelve m onths from the date of the filing of the Bill of

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - Complaint.” He further argues it is “inequitable to allow the Wife to sit on her rights for twelve months, with a huge amount of cash in the bank, a nd then collect arrearages for those months.” Code § 20-107.1(A) provides that, upon entry of a decree for a divorce, “the court may make such further decree as it shall deem e xpedient concerning the maintenance and support of the spouses.” This statutory grant of authority means that “[d]ecisions regarding ‘spousal . . . support rest within the sound discretion of the trial court and will not be reve rsed on appeal unless plainly wrong or unsuppo rted by the evidence.’ ” Konefal v. Konefal , 18 Va. App. 612, 614, 446 S.E.2d 153, 154 (1994) (citation omitted). Moreover, the Supreme Court and this Court have repeatedly held “that the time permanent [spous al support] shall commence is within the sound discretion of the court and may be made effective as of the da te of the commencement of the suit.” Lawrence v. Lawrence , 212 Va. 44, 47, 181 S.E.2d 640, 642 (1971); see also Young v. Young , 215 Va. 125, 126, 107 S.E.2d 825, 825 (1974) (per curiam); Konefal , 18 Va. App. at 614, 446 S.E.2d at 154; Weizenbaum v. Weizenbaum , 12 Va. App. 899, 904, 407 S.E.2d 37, 40 (1991). The wife filed her bill of complaint J une 24, 2005. In paragraph C, she requested “support and maintenance of the parties’ minor children and herself, both pendente lite and permanently.” By raising the issue in her initial pleadings, the wife gave notice of her intention to seek support. See Boyd v. Boyd , 2 Va. App. 16, 19, 340 S.E.2d 578, 580 (1986) (holding that the power to award support “remains dependent u pon the pleadings having raised the issue”). Further, following a hearing for pendente lite relief, the trial judge entered an order that “reserved” the issue of spousal support and ruled a final award w ould be “retroactive to at least 12/9/05.” In view of this evid ence, the husband’s argument that th e wife “sat on her rights” has no merit.- 3 - The evidence supports the trial judge’s award of spousal support retroactive to the date of the initial filing. After the separation, the husband paid no support for the wife or children until ordered by the December 2005 pendente lite award to pay child s upport. The wife’s and children’s standard of living de teriorated dramatically following the separation. During the separation, the wife used funds from the propert y settlement to pay liv ing expenses and other debts incurred by the parties during the marriage. The husband continued to enjoy a comfortable lifestyle. In view of this evidence, the trial judge did not abuse his discretion in awarding the wife spousal support retroactive to the date of the filing of the bill of complaint.
II. The husband contends the trial judge abused his discretion “in c oncluding that [the husband’s] earnings and earning capacity was $14 0,000 based primarily on the testimony of [the wife].” He argues the judge accepted the wife’s testimony despite providing “no documentation whatsoever to support her testimony.” At the hearing, the parties offered contra dictory testimony regard ing the husband’s work activities and income. The husband is the sole propr ietor of a business that services, repairs, and makes performance modifications on Ford vehi cles. The husband testified his income was “approximately $50,000 annually.” As proof of his income, husband offered an income and expense sheet reflecting a monthly gross in come of $4,166 and a net income of $2,341. For a while during the marriage, the wife worked part-time for the husband, helping “with the paperwork” and “doi ng payroll.” According to the wife’s testimony, the husband conducted various “trade” transactions as part of his business, “so that no money took place, or money was filtered out of the business as cash.” She explained that these “trades” resulted in various benefits, including “$10,000 to $15,000 of work on [the marital home] every year.” She testified the husband derived addi tional income from plowing snow “for $50 to $75 a shot,” from- 4 - “getting free parts from dealers for advertising and putting them on his ow n car or selling them,” from work he does at his business “on the side ,” and from a vending machine located in the business. The wife testified that th e husband earned between $100,000 and $120,000 annually, that he “brags about making $5,000 a day in pr ofit,” and that he has acknowledged earning $100,000 a year. In his opinion letter, the trial judge note d that neither party presented corroborating documents to support their income testimony. Ho wever, he disbelieved much of the husband’s testimony and credited much of the wife’s testimony. He found: [The husband] testified he earns $34,000 per year from his business but stipulated that for pur poses of this litigation it might be deemed to be $50,000. This stip ulated amount is not accepted by court. He acknowledged that he has received additional income from snow plowing during the winter months. His attempts to limit that income was uncorroborat ed by documentary evidence he might have produced. He [has] confirmed his wife’s testimony that he engaged in off-the books bartering. He testified these transactions were limited but again did not provide any documentary evidence with respec t to them. He earns $4,000 per week from the [beach house]. Perhaps most importantly are the facts that he is presently paying $2,500 per month ($30,000 per year, almost equal to his supposed income) to rent his present Stafford residence; and is consider ing the exercise of his option to buy the home for $625,000. The trial judge specifically found that “the extent of [the husba nd’s] income is in question,” and he believed the wi fe’s general descriptions of ways in which the husband earned additional monies. Thus, the trial judge found as follows: [The wife] further testif ied that her husband would routinely take cash out of the business and engage in non-cash transactions to gain additional income. However, insufficient evidence was presented to quantify income received in this manner. She further testified that [the husband] had represented to her that he was receiving income from the business ranging from $100,000 to $150,000 per year. While [she] was unable to prove his precise earnings from the business, the foregoing circumstances are sufficient to corroborate that he makes at least $100,000 from the business. Further, when all the ev idence related to his earnings are- 5 - taken into account, as well as hi s present rent payments for his home in Stafford, I conclude hi s earnings and earning capacity are not less than $140,000 per year or $11,667/month. We reject the husband’s characte rization of the trial judge’s fi ndings as “imput[ing] to the husband an income.” In Floyd v. Floyd , 17 Va. App. 222, 436 S.E.2d 457 (1993), we noted that, “[a]lthough the trial judge made refe rence to imputing income, the r ecord clearly shows that this was not the sort of imputation, based on volunt ary underemployment, to which the statute applies. What the tria l judge did was make a finding of fact as to the amount of [husband’s] gross income.” Id. at 229, 436 S.E.2d at 461. In this case, the trial judge’s opi nion letter clearly established that he rejected the husband’s te stimony and drew reasonable inferences from the evidence to find the husband’s to tal income from the variou s sources. Although the judge referred to the husband’s “earnings and earning cap acity,” his analysis indicates that he considered the various sources of the husband’s income and expe nses and then drew reasonable inferences to determine the husband’s annual earnings. At the ore tenus hearing the trial judge commented, “I t is plain to me that [husband’s] testimony is evasive. But I can’t tell where it begins and where it en ds in terms of truthfulness.” Finding the evidence in conflict, the trial judge found wife’s testimony more credible and drew reasonable inferences from the evidence. When witnesses offer conflicting testimony, it is within the sound discretion of the trial judge to determine the weight to be given to th e testimony, to choose to believe the te stimony of one witness, and to disb elieve the testimony of another. Anderson v. Anderson , 29 Va. App. 673, 686, 514 S.E.2d 369, 376 (1999); Street v. Street , 25 Va. App. 380, 387, 48 8 S.E.2d 665, 668 (1 997) (en banc). Sufficient evidence supports th e trial judge’s finding that husband earned more than the $50,000 annual amount the husband acknowledged. Th e evidence established the type of lifestyle the parties enjoyed during the marriage, the sources of the husband’s earnings from his- 6 - automotive business and other endeavors, and the “cash” nature of the many activities. Assessing this evidence and the husband’s curr ent standard of livi ng, the judge found the circumstances corroborated wife’s testimony th at husband earned an income in excess of “$100,000 from the business” alone. The record shows no abuse of discretion.
III. The husband contends the trial judge erred in ruling that “[b]ecause [the husband] presented no evidence as to expenses to opera te the beach house, $4,000 per week for 10 weeks is deemed his income from the house without de duction for operational expenses.” We agree and hold the trial judge erred in failing to consid er the mortgage expense paid on the beach house when determining the husband’s income. The guidelines for determining child support provide, in part, that “[g]ross income shall be subject to deduction of reasonable busine ss expenses for persons with income from self-employment, a partnership, or a closely held business.” Code § 20-108.2(C). The trial judge found that the husband’s te stimony and his expense statemen t were insufficient to prove the monthly mortgage was $3,950. Consequently, he ruled, “[b]ecause [the husband] presented no evidence as to expenses to operate the beachhouse, $4,000 per week for 10 weeks is deemed his income from the house without deduc tion for operational expenses.” The evidence proved the husband received the beach house property as part of the parties’ property settlement. The husband tes tified about the monthly mortgage expenses he incurred for the beach house, and he introduced at the hearing an exhibit of his income and expenses, which reflects a monthly mortgage payment of $3,950 toward the property. In the wife’s response to husband’s interrogatories, she admitted the rent proceeds from the property were used to pay the mortgage on the property. Moreover, she never contested the existence or amount of the mortgage. In shor t, the uncontradicted evidence in the record established the- 7 - property was encumbered by a mortgage and th e husband paid monthly $3,950 for the mortgage. Thus, the trial judge erred in finding the rent proceeds were income to the husband without deduction for the mortgage expense.
IV. Husband contends the trial judge abused hi s discretion “in departing dramatically from the spousal and child support guide lines.” The wife asserts that the husband’s challenges to the support orders are barred by Rule 5A:18 because the husband failed to tim ely raise the specific issues at trial. We need not resolve this issue because our hol ding in Part III requires that we remand the child support and spousal support awards for further proceedings. See also Herring v. Herring , 33 Va. App. 281, 532 S.E.2d 923 (2000) (applying the ends of justice exception to Rule 5A:18 for a challenge to the support guidelines). On remand, the trial judge must recalculate child support under the guidelines.
V. In summary, we hold the trial judge did notabuse his disc retion in awarding spousal support retroactive to the date of the filing of th e bill of complaint and in assessing the parties’ testimony in determining the husband’s income. We also hold, however, that the trial judge erred in failing to consider mortgage payments made on the property from the rental proceeds when assessing the husband’s income from the b each house. Therefore, we remand the case for a recalculation of child support under the guidelines and reconsid eration of spousal support. Affirmed in part, reversed in part, and remanded.