COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Elder and Bray 

Argued at Richmond, Virginia 

BRADLEY SCOTT DeTUNCQ 

 MEMORANDUM OPINION* BY 

v. Record No. 1433-00-2 JUDGE LARRY G. ELDER 

 MAY 8, 2001 

ALISON DeTUNCQ 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Paul M. Peatross, Jr., Judge 

 John K. Taggart, III (Patricia D. McGraw; 

Tremblay & Smith, LLP, on briefs), for 

appellant. 

 Ronald R. Tweel (William C. Scott IV; Michie, 

Hamlett, Lowry, Rasmussen & Tweel, P.C., on 

brief), for appellee. 

 Bradley Scott DeTuncq (father) appeals from a ruling of the 

Circuit Court of Albemarle County (trial court) increasing his 

monthly obligation to Alison DeTuncq (mother) for the support of 

the parties' minor child. On appeal, he contends the trial 

court erroneously calculated both his and mother's gross income 

and erroneously refused his request for an award of attorney's 

fees. We hold the trial court did not abuse its discretion, and 

we affirm the award. 

 

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

designated for publication.
I. 

 In a hearing on a petition for modification of child 

support, the burden is on the moving party to prove a material 

change in circumstances that warrants a modification of support. 

See, e.g., Yohay v. Ryan, 4 Va. App. 559, 566, 359 S.E.2d 320, 

324 (1987). "Decisions concerning . . . [child] support rest 

within the sound discretion of the trial court . . . ." Calvert 

v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875, 876 (1994). 

"The trial court's decision, when based upon credibility 

determinations made during an ore tenus hearing, is owed great 

weight and will not be disturbed unless plainly wrong or without 

evidence to support it." Douglas v. Hammett, 28 Va. App. 517, 

525, 507 S.E.2d 98, 102 (1998). 

 In computing a party's gross income from which child 

support obligations are calculated, Code § 20-108.2(C) requires 

the inclusion of "all income from all sources." Such income 

includes bonuses, see Code § 20-108.2(C), but should not include 

income "premised upon the occurrence of an uncertain future 

circumstance," Jacobs v. Jacobs, 219 Va. 993, 995, 254 S.E.2d 

56, 58 (1979) (applying this principle in the context of spousal 

support). Such income also "shall be subject to deduction of 

reasonable business expenses for persons with income from 

self-employment, a partnership, or a closely held business." 

Code § 20-108.2(C). 

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A. 

FATHER'S INCOME 

 Father claims the figures used by the trial court to 

calculate his gross income were speculative because they were 

based on possible future profits only and failed to take into 

consideration, as required by statute, the reasonable business 

expenses required to generate those profits. He also contends 

the trial court should have used his net income for 1999, as 

testified to by his company bookkeeper. We disagree. 

 First, the profits earned by father during the part of the 

Dogwood Lane construction contract already performed were not 

speculative. The evidence established that father had been 

working pursuant to the Dogwood Lane contract for five full 

months before the January 2000 modification hearing, and he 

conceded that he had been receiving a draw during that time. 

Furthermore, Rita Pace, father's bookkeeper, was able to compute 

income and expense figures related to that contract for use on 

father's 1999 federal income tax returns, although those returns 

were not offered into evidence at the hearing. Although it is 

true that father ultimately could lose money on the contract as 

a whole, such a loss would provide father with a basis for 

seeking a subsequent modification of the child support award; 

that possibility did not render speculative the income father 

had earned under the contract prior to the time of the support 

hearing. See, e.g., Yohay, 13 Va. App. at 566, 359 S.E.2d at 

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324 (noting that court modifying child support award must 

consider "the present circumstances of both parties"). 

 Second, the trial court acted within its discretion when it 

determined father's monthly gross income to be $9,796. Although 

Code § 20-108.2(C) provides that gross income calculations 

"shall be subject to deduction of reasonable business expenses 

for persons with income from self-employment," a parent seeking 

such a deduction bears the burden of proving his entitlement to 

those deductions to the satisfaction of the trier of fact. 

Here, once mother offered evidence of father's gross business 

revenue, the burden shifted to father to offer evidence (1) of a 

different gross amount, if he disputed mother's figure, and (2) 

of the amount of his reasonable business expenses to be deducted 

from gross income. Here, father offered no direct evidence of 

his gross receipts from the Dogwood Lane project during 1999 and 

did not dispute mother's figures other than with his assertion 

that they remained speculative until the entire contract had 

been performed. Further, although father offered evidence of 

his business expenses related to the Dogwood Lane project during 

1999, the trial court, in its role of assessing witness 

credibility, was entitled to reject that evidence, as testified 

to by Rita Pace, who was both the company's bookkeeper and 

father's girlfriend with whom he lived and shared expenses. 

Father offered little supporting documentation for these 

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expenses, choosing to rely almost exclusively on the 

bookkeeper's testimony. 

 We recognize Supreme Court precedent that a trial court may 

not "arbitrarily disregard uncontradicted evidence of 

unimpeached witnesses which is not inherently incredible and not 

inconsistent with the facts appearing in the record, even though 

such witnesses are interested in the outcome of the case." 

Hodge v. American Family Life Assurance Co., 213 Va. 30, 31, 189 

S.E.2d 351, 353 (1972). However, this is not what occurred 

here. Although Pace's testimony was not inherently incredible, 

her statements regarding father's annual income and expenses 

from 1996 to 1999 could be viewed as inconsistent with mother's 

evidence of father's expenditures during those same years. 

Thus, the trial court was entitled to question the veracity of 

all of Pace's testimony even though mother did not offer 

specific conflicting evidence of father's expenses on the 

Dogwood project. The trial court's implicit rejection of Pace's 

testimony was not improper, and without credible evidence of 

father's business expenses, the court was entitled to use the 

profit figure offered into evidence by mother. 

 The trial court also was not required to accept the income 

figures father planned to use on his 1999 federal income tax 

return. These figures, like the business deductions, came into 

evidence through Pace, father's girlfriend, and father offered 

no documentation to support these figures. Although the 

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parties' separation agreement required the annual exchange of 

income tax returns, it did not purport to provide that these 

returns were the only acceptable evidence of the parties' income 

for purposes of calculating child support. 

 Mother clearly did not agree with father's assertion that 

his income tax figures were the most accurate indication of his 

annual income, for she presented evidence tending to indicate 

his earnings were greater than reflected by his tax returns, 

based on both discrepancies between the deposits and withdrawals 

from his only bank account and evidence of the things on which 

he spent money and the amounts he spent. The trial court 

accepted mother's argument, for it concluded that "[i]t . . . 

appears . . . [father] was not forthright in the amount of his 

true income." Although the trial court made this finding in 

ruling on father's request for attorney's fees, it nevertheless 

constitutes a finding relevant to our review of the court's 

calculation of "the amount of [father's] true income." 

 Finally, even if the parties' separation agreement had 

provided that their federal income tax returns were binding as 

to their income for the purpose of determining child support, it 

was the duty of the trial court to determine support pursuant to 

the statute with the best interests of the child as "the 

paramount and guiding principle," and it could not have been 

bound by such an agreement. Watkinson v. Henley, 13 Va. App. 

151, 158, 409 S.E.2d 470, 474 (1991). 

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 For these reasons, we hold the trial court did not abuse 

its discretion in calculating father's "gross income" for child 

support purposes. 

B. 

MOTHER'S INCOME 

 Father contends the trial court erroneously calculated 

mother's income by failing to include a $3,000 bonus. We 

disagree. The evidence indicated that mother received a $3,000 

bonus in 1999, when her salary was $95,000, resulting in a total 

annual income of $98,000. No evidence indicated that mother 

could expect to receive a bonus in 2000, when her salary was 

$101,000. Thus, the trial court did not err in concluding that 

mother's income was $101,000. Cf. Smith v. Smith, 18 Va. App. 

427, 434, 444 S.E.2d 269, 274 (1994) (holding that trial court 

does not abuse its discretion in failing to include in parent's 

gross income capital gains not realized contemporaneously with 

child support hearing); Goldhamer v. Cohen, 31 Va. App. 728, 737 

n.2, 525 S.E.2d 599, 603 n.2 (2000) (further interpreting 

Smith); id. at 739, 525 S.E.2d at 604 (Elder, J., concurring) 

(same). Any other figure would be speculative and would violate 

the very principles that father advances so forcefully in regard 

to the calculation of his own income. 

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C. 

ATTORNEY'S FEES 

 Father contends that he was entitled to an award of 

attorney's fees because no evidence established that he was 

dilatory in providing his 1998 income information to mother or 

that the figures he provided were inaccurate. We hold the trial 

court did not abuse its discretion in refusing to award 

attorney's fees to father pursuant to the parties' agreement. 

The agreement provides for an award of attorney's fees to a 

"party whose position substantially prevails" or a 

"non-breaching party" whose "position relative to such breach is 

substantially maintained by settlement or court order." Here, 

the evidence, viewed in the light most favorable to mother, 

indicates that father was not a "prevailing" or "non-breaching 

party" because he did not provide mother with his financial 

information for 1996 through 1998 until sometime in 1999. 

Further, father's position regarding the amount of his income 

was not "substantially maintained" by order of the trial court 

or this Court. Thus, the trial court did not err in refusing 

father's request for an attorney's fees award. 

II. 

 For these reasons, we hold the trial court did not abuse 

its discretion in calculating father's or mother's gross income 

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or in refusing father's request for an award of attorney's fees. 

Thus, we affirm the trial court's ruling. 

Affirmed.

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