COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Annunziata and 

 Humphreys 

Argued at Alexandria, Virginia 

JOHN DAVID PELLEGRIN 

 MEMORANDUM OPINION* BY 

v. Record No. 0209-01-4 JUDGE ROSEMARIE ANNUNZIATA 

 JANUARY 29, 2002 

DIANE LYNN BINGMAN PELLEGRIN (RAMEE) 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Leslie M. Alden, Judge 

 John D. Pellegrin, pro se. 

 David M. Levy (Surovell, Jackson, Colten & 

Dugan, P.C., on brief), for appellee. 

 John D. Pellegrin (appellant) (Pellegrin) appeals the trial 

court's dismissal of his petition to terminate or modify spousal 

support on the grounds that the trial court improperly 

considered certain evidence and improperly declined to impute 

income to Diane L.B. Pellegrin Ramee (appellee) (Ramee). 

Pellegrin also appeals the trial court's award of attorney's 

fees to Ramee. For the reasons that follow, we affirm and 

remand for a determination of appellate attorney's fees. 

 

 * Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
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I.

Background

 On appeal, we view the evidence and all reasonable 

inferences that flow from it in the light most favorable to 

Ramee, the party prevailing below. Calvin v. Calvin, 31 Va. 

App. 181, 183, 522 S.E.2d 376, 377 (1999). Pellegrin and Ramee 

were divorced on March 5, 1991, by a final decree affirming, 

ratifying, and incorporating the parties' Property Custody and 

Support Settlement Agreement (PSA). The PSA provided that 

Pellegrin's support obligation would be reduced as Ramee's 

income from employment increased. 

 On April 30, 1998, appellant filed a petition in the 

Circuit Court of Fairfax County to terminate spousal support and 

maintenance. He contended that Ramee, who had a Master's in 

Education and Counseling Development, was voluntarily foregoing 

gainful employment and, therefore, not entitled to support 

according to the PSA. He presented the testimony of Thomas W. 

Minnick, an expert in the field of mental health counseling 

employment. The trial court, however, found that the PSA did 

not require Ramee to seek employment, and Pellegrin appealed. 

 On appeal, we held that the PSA "established an implied 

contractual duty upon [Ramee] to make a reasonable effort to 

seek employment." Pellegrin v. Pellegrin, 31 Va. App. 753, 761, 

525 S.E.2d 611, 615 (2000). Finding the trial court erred in 

concluding that no such duty arose from the terms of the 
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contract, we remanded the matter "for further proceedings based 

on the evidence presented." Id. 

 On remand, over Pellegrin's objection, the trial court 

permitted Ramee to testify regarding her efforts to secure 

employment. Ramee stated that she received employment 

counseling and followed a plan to secure employment, which 

included applications to more than two dozen employers. She 

noted after she completed her Master's in Education and 

Counseling Development in December 1997, she had difficulty 

finding a job because she lacked clinical experience. 

Therefore, in January 1998, she obtained an unpaid externship at 

the Prince William County Community Services Board where she 

obtained clinical experience hours and eventually secured a 

paying position in January 1999. 

 Minnick testified that Ramee was readily employable and 

could earn in excess of $50,000 per year. He also noted that, 

at the time Ramee was looking for employment, he personally 

would not have hired her as a substance abuse counselor because 

she lacked clinical experience of at least one year. 

 From this evidence, the trial court determined Pellegrin 

failed to prove Ramee had not made reasonable efforts to gain 

employment, and it declined to impute income to her. 

 On May 15, 1998, the trial court heard Ramee's petition for 

a rule to show cause. The trial court found Pellegrin in 

contempt for failure to make support payments, but suspended 
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this finding on the condition that Pellegrin resume spousal 

support payments. Pellegrin failed to meet this condition. On 

November 9, 1999, the trial court stayed the matter so that 

Pellegrin's then pending bankruptcy proceeding in U.S. 

Bankruptcy Court could be resolved. After the bankruptcy 

proceeding was resolved, another hearing on the rule to show 

cause was held on December 7, 2000, in conjunction with the 

remand hearing. 

 At the December 7 hearing, the trial court found Pellegrin 

in contempt for failure to pay spousal support resulting in 

arrearages of $42,773.96, plus interest in the amount of 

$5,846.11. The court advised Pellegrin that he could purge 

himself of contempt by presenting a plan for payment of the 

arrearages. On December 22, 2000, Pellegrin proposed that he 

pay $300 per month. The court rejected this plan as 

unreasonable because it would require 13.6 years to pay the 

debt, without including interest. After a two-hour stay in 

detention, Pellegrin presented a second plan to pay Ramee $1,000 

per month and give her four initialed Tiffany light shades, to 

be credited towards his outstanding arrearages. The court 

accepted the plan, and Ramee agreed to it. 

II.

Analysis

 Pellegrin contends that the trial court erred by: (1) 

permitting Ramee to present additional evidence on remand; (2) 
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refusing to impute income to Ramee; (3) awarding Ramee 

attorney's fees for successfully enforcing the terms of the PSA; 

(4) finding him in contempt despite evidence of his inability to 

pay support; and (5) unconstitutionally incarcerating him. We 

find each of these contentions to be without merit. 

A. Admission of additional evidence

 It is well settled that a decision "'to hear additional 

evidence is within the sound discretion of the trial court.'" 

Calvin, 31 Va. App. at 184, 522 S.E.2d at 378 (quoting Rowe v. 

Rowe, 24 Va. App. 123, 144, 480 S.E.2d 760, 770 (1997)); Morris 

v. Morris, 3 Va. App. 303, 307, 349 S.E.2d 661, 663 (1986). The 

trial court's ruling at the first hearing was based on a legal 

interpretation of the PSA and not on the evidence heard. We 

reversed the court's decision, holding that the PSA "established 

an implied contractual duty upon [Ramee] to make a reasonable 

effort to seek employment," and we remanded the matter "for 

further proceedings based on the evidence presented." 

Pellegrin, 31 Va. App. at 761, 525 S.E.2d at 615. The trial 

judge found that this directive did not preclude the 

presentation of additional evidence, explaining, "I only heard 

half the case. And . . . in light of the posture in which the 

case ended here, I just do not see how I can rule without taking 

further evidence today." The record supports this finding. 

Ramee did not present evidence of her employment search at the 

first hearing because the court had granted her motion to 
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strike. Additional evidence was therefore necessary to dispose 

of the issue before the court on remand. 

B. Imputation of Income

 The trial court found that Pellegrin had not met his burden 

of proving that Ramee was foregoing gainful employment and, 

therefore, declined to impute income to her. Such a "refusal to 

impute income will not be reversed unless plainly wrong or 

unsupported by the evidence." Blackburn v. Michael, 30 Va. App. 

95, 102, 515 S.E.2d 780, 784 (1999). Furthermore, "[t]he burden 

is on the party seeking imputation to prove that the other 

[party] was voluntarily foregoing more gainful employment, 

either by producing evidence of a higher-paying former job or by 

showing that more lucrative work was currently available." 

Niemiec v. Dep't of Soc. Servs., 27 Va. App. 446, 451, 499 

S.E.2d 576, 579 (1998) (citations omitted). 

 In this case, Pellegrin did not present evidence of a 

higher-paying former job. Instead, he sought to prove that 

Ramee's unemployment was voluntary because more lucrative work 

was available. His expert, Minnick, testified that because the 

market for mental health counselors was strong, Ramee was 

readily employable and could earn in excess of $50,000 per year. 

This abstract statement is insufficient to demonstrate voluntary 

unemployment. 

 Moreover, the evidence in the case is contrary to Minnick's 

conclusion that Ramee was readily employable and supports the 
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trial court's ruling that Ramee was not voluntarily unemployed. 

The trial court found that, at the time Ramee sought employment, 

one year of clinical experience, which she did not have, was the 

minimum for hiring a mental health counselor with a master's 

degree. Ramee testified and presented records indicating that 

she actively sought employment as a substance abuse counselor 

but was unsuccessful because she lacked clinical experience. 

She noted that potential employers specifically told her that 

she needed more experience and that most job listings in the 

field required one year of experience. Indeed, Minnick, 

himself, stated that he personally would not have hired Ramee as 

a substance abuse counselor because she did not have a year of 

clinical experience. 

 Finally, we note that the trial court discounted Minnick's 

expertise on the issue, noting that "he is not a headhunter in 

this area. His specialty is not placing people in this area. 

He is not a rehabilitation expert . . . ." See Street v. 

Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en

banc) (noting that the trier of fact "has the discretion to 

accept or reject any of the witness' testimony"). In short, 

credible evidence in the record supports the trial court's 

resolution of this issue. See Barnes v. Wise Fashions, 16 Va. 

App. 108, 111, 428 S.E.2d 301, 303 (1993) (trial court may 

resolve any apparent conflicts in the testimony of an expert). 
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 Because the record does not demonstrate that Ramee was, in 

fact, qualified for the jobs Pellegrin alleged were available, 

Pellegrin has failed to carry his burden of demonstrating that 

Ramee was voluntarily unemployed. Niemiec, 27 Va. App. at 453, 

499 S.E.2d at 580 (holding that mother was not voluntarily 

unemployed where party seeking to impute income "did not 

establish that [employment] positions were available" to her or 

"that she failed to market herself adequately"). 

C. Contempt

 Pellegrin contends that the trial court erred in holding 

him in contempt. Specifically, he argues that the court's 

finding of voluntary underemployment is unsupported by the 

evidence and that the trial court improperly rejected his 

initial proposed payment plan. We disagree. 

 "A trial court may hold a support obligor in contempt for 

failure to pay where such failure is based on unwillingness, not 

inability, to pay." Barnhill v. Brooks, 15 Va. App. 696, 704, 

427 S.E.2d 209, 215 (1993). The moving party must demonstrate 

that the offending party failed to comply with an order of the 

court. Alexander v. Alexander, 12 Va. App. 691, 696, 406 S.E.2d 

666, 669 (1991) (citing Frazier v. Commonwealth, 3 Va. App. 84, 

87, 348 S.E.2d 405, 407 (1986)). "The offending party then has 

the burden of proving justification for his or her failure to 

comply." Id. (citing Frazier, 3 Va. App. at 87, 348 S.E.2d at 

407); see Laing v. Commonwealth, 202 Va. 511, 514, 137 S.E.2d 
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896, 899 (1964) ("[T]he inability of an alleged contemner, 

without fault on his part, to tender obedience to an order of 

court, is a good defense to a charge of contempt."); Barnhill, 

15 Va. App. at 704, 427 S.E.2d at 215. 

 Where a court issues a judgment of contempt, "'its finding 

is presumed correct and will not be reversed unless plainly 

wrong or without evidence to support it.'" Glanz v. Mendelson, 

34 Va. App. 141, 148, 538 S.E.2d 348, 351 (2000) (quoting Brown 

v. Commonwealth, 26 Va. App. 758, 762, 497 S.E.2d 147, 149 

(1998)). When reviewing the sufficiency of the evidence 

supporting a finding of contempt, we view the evidence in the 

light most favorable to the party prevailing below. See id.

 Pellegrin failed to carry his burden of demonstrating his 

inability to pay the court-ordered support. At the time of the 

hearing, Pellegrin was an attorney with nearly 30 years of 

experience and with his own private practice. Pellegrin's 

profit and loss statement showed repayment of $25,000 in loans 

and personal credit card debt by his law firm in 1999 and 

$45,000 in 2000. In addition, he and his wife were active 

members of Springfield Golf and Country Club. In light of this 

evidence of ability to pay, the trial court did not credit 

Pellegrin's claim that he earns only $10,000 per year from his 

law firm and that he has diligently sought other employment. 

See Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 

730, 732 (1995) ("The credibility of the witnesses and the 
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weight accorded the evidence are matters solely for the fact 

finder who has the opportunity to see and hear that evidence as 

it is presented."). Accordingly, the court determined that his 

underemployment was voluntary and held him in contempt and 

rejected his plan to pay Ramee only $300 per month. It later 

accepted his plan to pay $1,000 per month and turn over four 

Tiffany lamp shades to Ramee, as payment towards his arrearages. 

We find that the record supports the trial court's finding of 

voluntary underemployment and its order. 

D. Attorney's Fees

 Pellegrin also contends that we should: (1) vacate the 

trial court's award of $5,000 in attorney's fees from the first 

hearing; and (2) reverse the trial court's award of fees in 

connection with the remand hearing. As we have noted in earlier 

appeals by Pellegrin, the first issue is barred by res judicata

because we have previously ruled to the contrary. See

Pellegrin, 31 Va. App. at 768, 525 S.E.2d at 618. 

 The second claim is governed by the terms of the PSA, which 

provides: 

The parties agree that any expenses, 

including but not limited to, counsel fees, 

court costs, and travel, incurred by a party 

in the successful enforcement of any of the 

provisions of this Agreement . . . shall be 

borne by the defaulting party. Any such 

costs incurred by a party in the successful 

defense to . . . any such provisions shall 

be borne by the party seeking [enforcement]. 
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 At the remand hearing, the trial court awarded Ramee $2,500 

in attorney's fees. Because wife successfully defended against 

Pellegrin's attempt to enforce the provisions of the PSA 

requiring imputation of income, see id. at 759-61, 525 S.E.2d at 

613-15, we affirm this award. Cf. id. at 768, 525 S.E.2d at 

618. (affirming award of attorney's fees because wife's "actions 

for which attorney's fees were awarded involved the successful 

enforcement of the PSA," in accordance with the PSA's provision 

governing such awards). Also pursuant to the PSA and, as 

requested by Ramee on appeal, we remand to the trial court to 

assess and award appropriate appellate attorney's fees to Ramee 

incurred by her in the appellate case presently before us. See

O'Loughlin v. O'Loughlin, 23 Va. App. 690, 694, 479 S.E.2d 98, 

100 (1996) (finding that trial court may award attorney's fees 

incurred on appeal with a specific remand and particularized 

instructions to do so).1

 1

 Although Ramee requested appellate attorney's fees in 

conjunction with the prior appeal, we did not award her 

appellate fees and did not direct the trial court to do so. See

generally Pellegrin, 31 Va. App. 753, 525 S.E.2d 611. She now 

requests that we direct the trial court to consider an award of 

attorney's fees incurred in conjunction with that appeal on the 

ground that the present appeal is "a continuation of the earlier 

matter." However, she cites no authority in support of this 

proposition, and we have found none. Therefore, because "the 

judgment in the former action [was] rendered on the merits by a 

court of competent jurisdiction," res judicata bars our 

reconsideration. Simmons v. Commonwealth, 252 Va. 118, 120, 475 

S.E.2d 806, 807 (1996); see also Highsmith v. Commonwealth, 25 

Va. App. 434, 440, 489 S.E.2d 239, 241 (1997) (noting that a 

court's constructive determination of an issue sufficiently 
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 For the foregoing reasons, the judgment of the trial court 

is affirmed, and the matter is remanded solely for consideration 

of an award of attorney's fees consistent with this opinion. 

Affirmed and remanded.

 

constitutes determination "on the merits" in the context of res

judicata (citation omitted)).