COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder, and Annunziata 

Argued at Richmond, Virginia 

MELANIE T. KAPLAN 

 OPINION BY 

v. Record No. 2435-94-2 JUDGE JAMES W. BENTON, JR. 

 JANUARY 23, 1996 

IRWIN D. KAPLAN 

FROM THE CIRCUIT COURT OF GOOCHLAND COUNTY 

F. Ward Harkrader, Jr., Judge 

 Sylvia Clute for appellant. 

 Murray J. Janus (Deanna D. Cook; Bremner, 

 Baber & Janus, on brief), for appellee. 

 Melanie T. Kaplan appeals from a judgment decreasing the 

amount of child support to be paid by Irwin D. Kaplan for their 

two children. She also contends the trial judge erred in 

refusing to award her attorney's fees and costs. For the reasons 

that follow, we affirm the judgment. 

 The evidence proved that during the marriage, the father 

sold his retail clothing business and entered into an employment 

contract on June 30, 1989, with the purchaser. The contract 

provided that he would receive a base salary of $270,000 per year 

from July 1, 1989 through January 31, 1995, with an increase of 

$10,000 per year beginning February 1, 1992. The contract 

contained a non-competition clause preventing the father from 

working in a related business for a three-year period after 

termination of the contract. In April 1992, the parent company 

of the corporation that paid the father's salary was in 

bankruptcy. 
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 The evidence also proved that the father and mother entered 

into a Property Settlement Agreement dated November 13, 1992. 

The agreement resolved issues of spousal support, property 

distribution, child custody, and child support. The father 

agreed to pay as support for the children $2,000 per month per 

child, private school expenses, college expenses, and other 

expenses. 

 In September 1993, the father entered into a modified 

contract with the corporation paying his salary. He testified 

that the corporation had ceased doing business and was in poor 

financial condition. He further testified that because the 

corporation's finances threatened future salary payments, he "had 

no choice but to make an agreement with them." Under the 

modified contract, the father's employment was to be terminated 

January 15, 1994. The modified contract also provided for a less 

restrictive non-competition clause. 

 On November 1, 1993, the father filed a bill of complaint 

seeking a divorce. The bill of complaint stated that a Property 

Settlement Agreement existed, alleged that a material change in 

circumstances had occurred with respect to the children, and 

requested that a fair and reasonable amount of child support be 

set taking into consideration the statutory support guidelines. 

As a result of discussions by the parties during the course of 

the litigation, the father abandoned his request to modify the 

monthly child support amount. The father and the mother asked 
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the trial judge to incorporate by reference the agreement into 

the final divorce decree. A final divorce decree was entered 

December 22, 1993, and it affirmed, ratified, and incorporated by 

reference the agreement. 

 Just over a month after entry of the divorce decree, the 

father filed a petition for reduction of child support. In his 

petition, he alleged that "as of January 15, 1994, [his] employer 

ceased its business operations in Virginia and [his] employment 

was terminated and therefore he is not gainfully employed at the 

present time." In response, the mother alleged that "no change 

in circumstances [had occurred] that [was] not known to the 

[father] at the time of the entry of the final decree of 

divorce." She also alleged that the father misled the trial 

judge when he claimed he had been terminated from his job and had 

no present income. The mother asserted that she was entitled to 

attorney's fees because of fraudulent representations. 

 After an evidentiary hearing, the trial judge reduced the 

father's monthly child support payments and made the following 

findings: 

 [T]here has been a substantial change in 

circumstances, . . . the [father] has 

suffered an involuntary reduction in his 

earned income; that his total gross income 

presently is $14,800 per month, $8,600 of 

which is earned and $6,200 of which is 

unearned; that the [mother's] average gross 

income is $4,841 per month, making a total 

monthly gross income of $19,641, which comes 

to a combined guideline support figure of 

$3,023 per month for two children; that the 

[father's] percentage of the gross income is 

75% leaving a guideline support figure of 
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$2,267 per month. . . . 

Accordingly, the trial judge ordered the father to pay $2,267 

monthly child support. The trial judge also denied the mother's 

motion for sanctions and attorney's fees. The mother appealed 

from the judgment. 

 In Virginia, a trial judge may adjust child support payments 

when the petitioning party has proven by a preponderance of the 

evidence a material change in circumstances. Featherstone v. 

Brooks, 220 Va. 443, 446-47, 258 S.E.2d 513, 515 (1979). "Where 

a party has demonstrated a material change in circumstance, the 

trial [judge] must determine whether that change justifies a 

modification in the support award by considering 'the present 

circumstances of both parties and the benefit of the children.'" 

Watkinson v. Henley, 13 Va. App. 151, 156, 409 S.E.2d 470, 473 

(1991)(citation omitted). Thus, an agreement or decree regarding 

child support can never permanently fix the amount of support. 

Code § 20-108; Featherstone, 220 Va. at 446, 258 S.E.2d at 515. 

 The mother contends that no change in circumstances occurred 

after entry of the final decree because the father had prior 

knowledge of his eventual loss of employment. She also argues 

that the doctrine of res judicata prevented the trial judge from 

considering the husband's petition for a modification of support. 

 The father asserts that the termination of his job in January 

1994 constituted a material change in circumstances and justified 

a reduction in his payments. 
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 The parties agree that the issue of a change in the child 

support payments was initially raised when the father filed his 

bill of complaint for divorce. The record before the trial judge 

established, however, that the parties discussed the issue during 

the divorce proceedings, could not agree upon a satisfactory 

change, and joined in the request to the trial judge to 

incorporate by reference the agreement they negotiated in 

November 1992. Although the father knew when he filed the bill 

of complaint that his employment would be terminated in January 

1994, he remained employed throughout the divorce proceedings and 

was still employed when the divorce decree was entered 

incorporating the parties' agreement. 

 The mother provides no support for her argument that the 

father's knowledge of his future change in income required action 

by the father at the time of the divorce. The principle is well 

established that a material change in circumstances requires an 

actual change. Featherstone, 220 Va. at 446, 258 S.E.2d at 515; 

Watkinson, 13 Va. App. at 156, 409 S.E.2d at 472-73. 

 An agreement by parties regarding the support of minor 

children has a characteristic that is significantly different 

from contracts generally. When parties contract concerning their 

property, spousal support, and related aspects of their affairs 

and file the contract with the court before entry of the divorce 

decree, "no decree or order directing the payment of support and 

maintenance for the spouse, suit money, or counsel fee or 
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establishing or imposing any other condition or consideration, 

monetary or nonmonetary, shall be entered except in accordance 

with that . . . contract." Code § 20-109. Unlike those 

contracts, any agreement that the parties reach regarding minor 

children may be modified by a judge "from time to time . . . , as 

the circumstances of the parents and the benefit of the children 

may require." Code § 20-108; Hammers v. Hammers, 216 Va. 30, 31, 

216 S.E.2d 20, 21 (1975). The issue of foreseeability of a 

change in condition, therefore, has significantly less impact in 

matters concerning child support. 

 The divorce court's continuing jurisdiction to modify and 

change a decree affecting support of a minor child may be invoked 

"if a material change in condition and circumstance has occurred" 

and despite the parties' previous agreement. Featherstone, 220 

Va. at 446, 258 S.E.2d at 515 (emphasis added). Because support 

orders "may be modified with respect to any period during which 

there is a pending petition for modification, but only from the 

date that notice of such petition has been given to the 

responding part[ies]," Code § 20-108, a party can claim no 

prejudice when a trial judge rules that a change in circumstances 

has occurred even though that change might have been foreseen at 

an earlier time. We, therefore, hold that the trial judge did 

not err in concluding that the date of the actual change in the 

father's salary was the time when the change in circumstances 

occurred. 
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 In addition, we uphold the trial judge's ruling that the bar 

of res judicata does not apply. "The bar of res judicata

precludes relitigation of the same cause of action, or any part 

thereof, which could have been litigated between the same parties 

and their privies." Smith v. Ware, 244 Va. 374, 376, 421 S.E.2d 

444, 445 (1992). "In the absence of a material change in 

circumstances, reconsideration of support that has been 

previously adjudicated . . . would be barred by principles of res

judicata." Hiner v. Hadeed, 15 Va. App. 575, 580, 425 S.E.2d 

811, 814 (1993). Although the father's bill of complaint for 

divorce alleged a change in circumstances, that issue was never 

litigated during the divorce proceeding. The parties requested 

that the trial judge incorporate by reference the agreement into 

the divorce decree without litigating the issue of the change in 

circumstances. The record clearly establishes that the matter of 

the impending change in the father's employment status was 

neither pursued as an issue nor decided during the divorce 

proceeding.1

 

 

 1Moreover, the evidence in the record suggests a dual nature of 

the change that the father conclusorily alleged in the pleadings. 

 The bill of complaint alleges "[t]hat since the Property 

Settlement Agreement there has been material changes in 

circumstances with respect to the children." The wife's answer to 

the bill admits the allegation of a change in circumstances and 

alleges that the parties were both aware "that the relationship 

between the children of the parties, especially their daughter, 

and the [father] has seriously deteriorated since the parties 

entered into the . . . agreement." At the hearing on his later 

petition to modify support, the father testified that his 

relationship with his daughter had grown volatile. He also 

testified, however, that the issue that concerned him when he 

filed the bill of complaint was his future salary termination. 
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 When the father filed his petition on January 28, 1994, he 

alleged that a change in circumstances occurred January 15, 1994, 

when his salary was terminated. The trial judge found that the 

father's salary had been terminated, that the change was 

material, and further that the change justified a modification of 

child support. See Yohay v. Ryan, 4 Va. App. 559, 566, 359 

S.E.2d 320, 324 (1987). The trial judge's finding of a change in 

circumstances was not "plainly wrong or unsupported by the 

evidence." Smith v. Smith, 18 Va. App. 427, 433, 444 S.E.2d 269, 

274 (1994). 

 The trial judge heard ore tenus the parties' evidence 

concerning the father's finances. The mother claimed that a 

fraud was being committed. When we view the evidence in the 

light most favorable to the father, who prevailed at trial, 

Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 

30 (1989), and grant great weight to the trial judge's findings, 

Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 

631 (1988), we conclude that the evidence failed to prove that a 

fraud was committed. The trial judge's findings are not plainly 

wrong. Id.

 We uphold the trial judge's decision reducing the father's 

support obligation because the evidence supports the reduction 

and does not prove that the trial judge abused his discretion in 

determining the amount of support. Schoenwetter, 8 Va. App. at 

606, 383 S.E.2d at 31. The evidence proved that the father 
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suffered a substantial diminution in salary in January 1994. The 

mother argued that the father voluntarily relinquished salary in 

return for the elimination of the non-competition clause and 

cited Antonelli v. Antonelli, 242 Va. 152, 409 S.E.2d 117 (1991), 

as a bar to his request for reduction. The trial judge found, 

however, that the father "suffered an involuntary reduction in 

his annual income." 

 We conclude that the evidence in the record concerning the 

bankruptcy of the corporation and the financial difficulties that 

caused the father to renegotiate the arrangement supports the 

trial judge's finding that the reduction was involuntary. 

Although the father had other sources of income and accepted 

employment for $8600 per month, the loss of income provided 

sufficient grounds for the trial judge to lower the father's 

child support payments. Accordingly, we find no error. 

 Attorney's fees and costs may be awarded in child support 

modification cases. Edwards v. Lowry, 232 Va. 110, 114, 348 

S.E.2d 259, 262 (1986). However, an award of attorney's fees and 

costs is within the sound discretion of the trial judge. Graves 

v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). The 

trial judge's findings that the father did not act in bad faith 

is supported by the evidence. Based upon the evidence in the 

record and that finding, we hold the trial judge did not abuse 

his discretion in refusing to award attorney's fees or costs. 

 For these reasons, we affirm the judgment. 
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 Affirmed.