COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Clements and Senior Judge Coleman 

Argued by teleconference 

TOM A. BROADHEAD, JR. 

 OPINION BY 

v. Record No. 0396-07-2 JUDGE ROBERT P. FRANK 

 JANUARY 29, 2008 

ANNE E. BROADHEAD 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

L. A. Harris, Jr., Judge 

 Larry D. Diehl (Edward D. Barnes; Brandy M. Poss; Barnes & 

Diehl, P.C., on briefs), for appellant. 

 Deanna D. Cook (Bremner, Janus, Cook & Stone, on brief), for 

appellee. 

Tom A. Broadhead, Jr., father, petitioned the trial court to reduce his child support 

obligation to his former wife, Anne E. Broadhead, mother, based on a reduction in his earnings. 

After an ore tenus hearing, the trial court determined that father was voluntarily underemployed, 

comparing his current position and salary level to that he held at the time of the initial award. 

Accordingly, the trial court imputed income to father.1

 Based on its findings, the trial court 

ordered a reduction in child support from $890 to $800 per month. On appeal, father contends 

that the trial court erred in finding that he was voluntarily underemployed and in imputing 

income to him from the job he held at the time of the initial award. Both parties request an 

award of attorney’s fees and costs associated with this appeal. For the following reasons, we 

reverse the decision of the trial court and remand for the trial court to determine whether father is 

 1

 The trial court also imputed income to mother, finding that she was voluntarily 

underemployed. However, mother conceded this point at trial and does not appeal the trial 

court’s decision to impute income to her. Thus, that issue is not before us on appeal. 
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voluntarily underemployed in his current position, in accordance with this opinion. Further, we 

decline to award attorney’s fees and costs to either party. 

BACKGROUND

Father and mother married in 1985 and had two children, one born in 1994 and one born 

in 1996. The trial court entered a final decree of divorce on April 3, 2001, and, pursuant to an 

agreement by the parties, ordered father to pay $1,800 per month in child support to mother.2 

Both parties shared physical and legal custody of the children. 

On January 31, 2003, the parties amended their agreement as to child support, reducing 

the amount father paid to mother to $890 per month.3

 The parties never sought an order from the 

trial court reflecting this reduction; however, both parties abided by the new agreement for the 

next two years. During the instant proceedings in the trial court, mother maintained that, though 

the parties’ 2003 agreement had never been entered as an order in court, she was bound by their 

agreement and did not seek any increase in the support amount. 

In 2005, both parties filed motions seeking primary physical custody of the children, and 

mother also filed a motion seeking sole legal custody and seeking a change in support. On April 

25, 2006, the trial court entered a consent decree resolving these issues, and the parties 

 2

 The final decree of divorce, in which mother was named as plaintiff and father as 

defendant, actually stated, “The amount of support to be paid by the plaintiff to the defendant for 

the support and maintenance of the children is $1,800.00 per month, that obligation already 

having begun, and is continuing each and every month thereafter until further order of this 

court.” (Emphasis added). 

This was clearly a clerical error by the trial court. Under the addendum to the parties’ 

separation agreement, dated March 15, 2001, father had agreed to pay mother $1,800 per month. 

Indeed, father continued to pay $1,800 per month to mother for the two years following the entry 

of the final decree, at which time the parties reached a separate agreement as to the amount of 

support. In light of this treatment by the parties, we will assume for purposes of this opinion that 

the final decree ordered father to pay $1,800 per month in child support to mother. 

3

 We note that the parties reached this agreement to reduce the amount of child support 

two months before father left his employment with Capital One. 
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maintained joint legal and joint physical custody of the children. The trial court also granted 

mother’s motion to withdraw her petition to amend child support. 

On May 24, 2006, father filed a motion to decrease child support. In response, on June 2, 

2006, mother filed a motion to increase child support and a motion for wage assignment. The 

trial court heard evidence ore tenus on August 28, 2006. 

Father testified that, at the time the final decree was entered, he was working for Capital 

One in Richmond in the corporate counsel department, as the assistant general counsel in charge 

of the business line groups. Father earned about $150,000 in salary, with a potential to earn large 

bonuses. Between his salary and annual bonus, father earned approximately $250,000 in 2001. 

Mother also worked at Capital One at that time, earning approximately $61,000 per year. Both 

father and mother resided in the Richmond area. 

In 2002, Capital One transferred father to a position heading the government regulatory 

regulation group, which operated as the lobbying arm for the company. Father had requested to 

retain his original position, as he did not have the “training and background to be an effective 

leader” of the regulatory regulation group. Father testified that the position required one to have 

fifteen to twenty years of experience in federal lobbying and governmental relations, while father 

had “virtually none.” However, father stated that Capital One had instituted a policy of 

switching mid- to senior-level managers into different roles to “broaden their experience.” 

Based on this policy, he was transferred. 

Father stated that he was not very successful in his new position, and, in March 2003, he 

and his superiors reached a “mutual agreement” that father should leave that position so that 

Capital One could fill his role with someone “who had experience.” Father’s old position at 

Capital One in the corporate counsel department was no longer available, and he did not possess 

the proper business experience to transfer to another department. Under the terms of father’s 
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departure, he received severance pay for one year, at the same level of salary he had when 

employed, payment of his tuition to obtain a master’s degree in business administration, and a 

statement by Capital One that father was leaving through no fault of his own. 

While father was receiving his severance pay from Capital One, he took the opportunity 

to establish a private equity fund where he was the principal investor, shareholder, and partner. 

While working for this company, which currently operates under the name Mirabilis Ventures, 

father took no salary. Based on the bonus and severance pay he received from Capital One, 

father earned $283,000 in 2003. Father continued to pay $890 per month in child support to 

mother pursuant to their January 2003 agreement. 

In August 2004, father began working in Baltimore with CitiFinancial as its general 

counsel. Father found this job through a recruiter. CitiFinancial paid father $160,000 in salary, 

with the potential to earn up to 100% of his salary in bonuses each year, for a potential total of 

$320,000. Father worked in Baltimore Monday through Friday, but continued to live in 

Richmond on the weekends to spend time with his children. 

Initially, the children spent Monday and Tuesday with father’s new wife while father 

worked in Baltimore. This arrangement prompted mother to file her motion seeking primary 

physical custody of the children. 

In order to maintain joint physical custody of his children, father worked out an 

arrangement with CitiFinancial to work at home on Mondays and Tuesdays. This arrangement 

lasted four to five months, at which time CitiFinancial decided that they needed father in 

Baltimore full-time. Father determined that he was not willing to change his custody 

arrangement with his children, and resigned his position in August 2005. 

Father returned to the same recruiter who had found him the job with CitiFinancial, but 

father testified that the recruiter found nothing available in the Richmond area at his salary level, 
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given his experience. Father testified that he also reviewed the jobs advertised in the newspaper 

and on online job-posting websites, but that he could not find “any jobs in the Richmond area . . . 

that pa[id] anything like Capital One does.”4 Father further stated that he “wasn’t willing to 

work where [he] wouldn’t be able to have custody of [his] children.” 

A few weeks after he left his position with CitiFinancial, father began working again for 

the private equity fund Mirabilis as a “senior strategist.” Father’s base salary was $150,000, 

“with the possibility of bonuses based on company performance.” Father was paid a bonus of 

$20,000 in 2006 based on the company’s performance in 2005. At the time of the August 2006 

hearing, father was still working at Mirabilis. 

At the hearing to change child support, mother conceded that she should have income 

imputed to her, as she voluntarily left her position at Capital One and was currently 

“underemployed.” Mother also conceded that, based on the evidence at the hearing, there was 

not “sufficient evidence to grant [mother] an increase” in child support. However, mother 

argued that father did not meet his burden to prove that there was a material change in 

circumstances to reduce child support from $890 per month. 

In an order dated January 17, 2007, the trial court found that there was a material change 

in circumstances since the 2001 order, in that both parties were earning substantially less money 

in 2006 than they had been in 2001.5

 The trial court determined that, under the child support 

guidelines using the actual current income of both parties, father would be required to pay 

4

 Mother did not present any evidence that jobs comparable to father’s job at Capital One 

or CitiFinancial were available to husband in Richmond. 

5

 The trial court noted that, “The Court will deal with the parties’ agreement dated 

January 31, 2003. However, since the last agreement was not made into an Order, the Court is 

dealing with the Final Decree dated of April 3, 2001.” The trial court went on to find a “material 

change in circumstances” since the entry of the final decree, “in that both of the parties are 

earning much less income.” Whether the trial court evaluated the change in circumstances from 

April 3, 2001, or January 31, 2003, is of no real consequence; both parties maintained the same 

positions and approximate salary levels on those two dates. 
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mother $751 per month. However, the trial court found that both parties were “voluntarily 

underemployed.” The trial court noted specifically that father was not underemployed for 

leaving CitiFinancial, as “he left that position to retain his custody rights with his children at a 

time when there was a pending custody motion filed by [mother], because [father] worked out of 

town.” Instead, the trial court found that father was voluntarily underemployed “because he 

voluntarily left Capital One where he was making a greater amount of money.” The trial court 

never determined whether father was underemployed in his current position. 

The trial court imputed income to mother in the amount of $7,750 per month, reflecting 

her level of salary and bonuses when she left Capital One in December 2005. The trial court 

then imputed income to father in the amount of $23,333 per month, reflecting his level of salary 

and bonuses when he left Capital One in March 2003. As a result of that imputed income, the 

trial court ordered father to pay mother $800 per month. 

This appeal follows. 

ANALYSIS

Voluntarily Underemployed

Father argues that the trial court erred in finding that he was voluntarily underemployed, 

and subsequently deviating from the child support guidelines. 

“Under familiar principles we view [the] evidence and all 

reasonable inferences in the light most favorable to the prevailing 

party below. Where, as here, the court hears the evidence ore 

tenus, its finding is entitled to great weight and will not be 

disturbed on appeal unless plainly wrong or without evidence to 

support it.” 

Hatloy v. Hatloy, 41 Va. App. 667, 671, 588 S.E.2d 389, 391 (2003) (quoting Pommerenke v. 

Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988)) (alteration in original). 

This case arose after the original divorce and child support order was entered. The 

standard of proof and burdens in such circumstances are clear. 
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“Once a child support award has been entered, only a 

showing of a material change in circumstances will justify 

modification of the support award. The moving party has the 

burden of proving a material change by a preponderance of the 

evidence.” Crabtree v. Crabtree, 17 Va. App. 81, 88, 435 S.E.2d 

883, 888 (1993). “[A] party seeking a reduction in support 

payments has additional burdens: ‘He must make a full and clear 

disclosure relating to his ability to pay. He must also show that his 

lack of ability to pay is not due to his own voluntary act or because 

of his neglect.’” Edwards v. Lowry, 232 Va. 110, 112-13, 348 

S.E.2d 259, 261 (1986) (emphasis added) (quoting Hammers v. 

Hammers, 216 Va. 30, 31-32, 216 S.E.2d 20, 21 (1975)). Thus, in 

order to prove a material change in circumstances that justifies a 

reduction in support, a parent “must establish that he is not 

‘voluntarily unemployed or voluntarily under employed.’” 

Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119 

(1991) (quoting Code § 20-108.1(B)(3)). 

Virginia Dep’t of Soc. Servs. v. Ewing, 22 Va. App. 466, 470, 470 S.E.2d 608, 610 (1996). 

In considering the appropriate amount of child support to be paid, “a trial court . . . is 

required to impute income to a parent who is found to be voluntarily underemployed.” Niemiec 

v. Dep’t of Soc. Servs., 27 Va. App. 446, 451, 499 S.E.2d 576, 579 (1998) (citing Code 

§ 20-108.1(B)(3)). In deciding whether income should be imputed to a parent, and the amount of 

such imputed income, “the trial court must ‘consider the [party’s] earning capacity, financial 

resources, education and training, ability to secure such education and training, and other factors 

relevant to the equities of the parents and the children.’” Blackburn v. Michael, 30 Va. App. 95, 

102, 515 S.E.2d 780, 784 (1999) (quoting Niemiec, 27 Va. App. at 451, 499 S.E.2d at 579). The 

“court may [also] impute income based on evidence of recent past earnings.” Brody v. Brody, 

16 Va. App. 647, 651, 432 S.E.2d 20, 22 (1993). 

We must determine whether father met his burden to establish that he was not 

“voluntarily underemployed.” In Hatloy, we determined whether, for purposes of imputing 

income, a father seeking reduction of his existing child support obligation met his burden of 

proving he was not voluntarily underemployed. There, we distinguished between the father’s 
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burden of proof and the burden of proof imposed on parties seeking imputation of income to the 

other party at the time of an initial support award, as follows: 

Although the word, “imputation,” is used in this context, 

the burden of proof remains on husband, not on wife who is 

arguing for imputation, unlike cases asking for imputed income at 

the time of the initial award. Here, the trial court had previously 

set an amount of support, based on husband’s then-salary from [his 

job at the time of the initial award]. Thus, wife’s request for 

imputation is basically an argument in support of continuing the 

initial award. Husband, on the other hand, is asking the court to 

reduce the previously set support amount. In meeting his burden 

on the motion to reduce the awarded support, husband must prove, 

among other issues, that he should not have his previous income 

from [his job at the time of the initial award] imputed to him. 

Hatloy, 41 Va. App. at 672 n.3, 588 S.E.2d at 391 n.3. 

Aside from having to prove a material change in 

circumstances, husband had to prove that this change warranted a 

support modification. In discharging this burden, one of the 

circumstances that the chancellor must consider is whether the 

changed circumstances arose from his own voluntary 

underemployment. A trial court may use its broad discretion in 

deciding whether a material change in circumstances warrants a 

modification in the amount of support. 

Reece v. Reece, 22 Va. App. 368, 373, 470 S.E.2d 148, 151 (1996) (citation omitted) (footnote 

omitted). 

Unless the trial judge misapplies the legal standard or misallocates the burden of proof, 

the question of “‘[w]hether a person is voluntarily unemployed or underemployed is a factual 

determination,’” O’Hara v. O’Hara, 45 Va. App. 788, 798, 613 S.E.2d 859, 864 (2005) (quoting 

Blackburn, 30 Va. App. at 102, 515 S.E.2d at 784), one firmly placed “‘within the [sound] 

discretion of the trial court,’” Sargent v. Sargent, 20 Va. App. 694, 703, 460 S.E.2d 596, 600 

(1995) (quoting Calvert v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875, 876 (1994)). 

Employing the most deferential standard of appellate review, we reverse factual findings “only if 
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plainly wrong or not supported by credible evidence.” Budnick v. Budnick, 42 Va. App. 823, 

841, 595 S.E.2d 50, 59 (2004). 

 The record shows that father experienced the material change in circumstance necessary 

for the trial court to review his child support obligation, namely, that his actual income was much 

lower in 2006 than at the time of the initial award. 

Here, the trial court determined that father did not voluntarily leave CitiFinancial, but 

found that father was voluntarily underemployed based on his departure from Capital One 

“where he was making a greater amount of money.” The proper analysis evaluates whether 

father is currently voluntarily underemployed, based on the position he holds, his current income 

level, the reasonableness of father’s efforts to find employment, and the availability of other 

positions at higher income levels, given his education and experience. Blackburn, 30 Va. App. at 

102, 515 S.E.2d at 784. These factors must be considered in light of the other circumstances 

surrounding this case, such as the custody arrangement between the parties and the ability of 

father to obtain a position that allows him to maintain that custody arrangement. See Reece, 22 

Va. App. at 376-77, 470 S.E.2d at 152-53 (holding that, where husband had strong familial ties 

to Richmond, he was not voluntarily underemployed based on his refusal of a job opportunity 

requiring him to relocate to a different state). It is only when considering all of these factors that 

the trial court can determine whether, in the party’s current position, he is voluntarily 

underemployed. 

In determining whether father’s move to employment at a lower income level would 

warrant the imputation of income, it is certainly appropriate to weigh the sequence of events 

leading to his current employment beginning with his departure from Capital One, the position 

he held at the time of the initial award. However, any such determination must be made in 

context of the principal concern: whether father is currently voluntarily underemployed. 
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 First, the circumstances under which father left his position at Capital One could hardly 

be considered voluntary. Father was transferred, against his request to remain in his original 

position, into a role that required substantial experience and expertise that father did not have. 

After father predictably did not succeed in this position, he and his superiors reached a mutual 

agreement that father should leave so that the company could hire someone with more 

experience. Further, the company did not have any other positions for father at that time. Father 

characterized his departure as an “opportunity to leave . . . with dignity.” Under the terms of this 

agreement, Capital One not only offered father one year of severance pay, maintaining his salary 

level, but also agreed to continue paying father’s tuition to pursue a master’s degree. Capital 

One also agreed that father was leaving through “no fault of [his] own.” 

Based on the uncontested evidence presented at the hearing, it is clear that father’s 

departure from Capital One was not voluntary. Thus, to the extent that the trial court found that 

father “voluntarily” left his position at Capital One, we conclude, as a matter of law, that the trial 

court erred. The record does not support the trial court’s finding. 

However, the fact that, at some time in the past, father may have been involuntarily 

terminated from his job at Capital One is not determinative of whether he is now voluntarily 

underemployed. One could have been involuntarily terminated from a higher paying job, yet 

income may still be imputed to father if he is now voluntarily underemployed. 

The trial court determined that father did not voluntarily leave his position with 

CitiFinancial, given the location of the position and the pending custody petition filed by mother 

at the time. See Reece, 22 Va. App. at 376-77, 470 S.E.2d at 152-53. Mother did not assign 

error to that finding by the trial court, so that finding is not before us on appeal. 

However, a finding that father did not voluntarily leave his position at CitiFinancial does 

not end the analysis of whether father is currently voluntarily underemployed. While father may 
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not have left the position with CitiFinancial voluntarily, based on his custody obligations to his 

children, the trial court never considered whether father’s efforts to secure employment closer to 

Richmond at a comparable level of income were sufficient to meet father’s burden to show that 

he was not voluntarily underemployed. See Hatloy, 41 Va. App. at 672-73, 588 S.E.2d at 391-92 

(holding that, though mother conceded father left his original position involuntarily when he was 

terminated through no fault of his own, the court still had to determine whether father was 

voluntarily underemployed by examining his efforts to find employment and by considering 

whether father could have earned more money in a different position). Though father’s current 

employment may be a bona fide and reasonable business venture, such a decision does not 

necessarily preclude the imputation of income to father. See Antonelli, 242 Va. at 156, 409 

S.E.2d at 119-20 (holding that a father who made a lateral move from a salaried to a 

commissioned position, while made in good faith, bore the burden of the risk such a move 

created and the trial court did not err in imputing income to him at the level of his prior salaried 

position). 

Thus, we find that the trial court erred in ruling that father voluntarily left his position at 

Capital One. In reaching this ruling, the trial court failed to consider the other factors relevant to 

an analysis of whether father is voluntarily underemployed in his current position. On remand, 

the trial court must consider all of the relevant factors, particularly whether father’s efforts to 

find a position were reasonable and whether other positions in the Richmond area were available 

to father, utilizing his education and experience, at a pay level comparable to his former 

positions with Capital One and CitiFinancial. 

Attorney’s Fees

Both mother and father request attorney’s fees and costs associated with this appeal. We 

have held: 
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The rationale for the appellate court being the proper forum to 

determine the propriety of an award of attorney’s fees for efforts 

expended on appeal is clear. The appellate court has the 

opportunity to view the record in its entirety and determine 

whether the appeal is frivolous or whether other reasons exist for 

requiring additional payment. 

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). 

In mother’s brief on appeal, she requested that “if this Court affirms the trial court’s 

rulings, that the matter be remanded to the trial court to award her attorney’s fees and costs for 

defending this appeal.” (Emphasis added). As we are reversing the decision of the trial court, 

we need not consider mother’s request for attorney’s fees and costs associated with this appeal. 

As to father’s request for attorney’s fees, we note that an award of attorney’s fees is not 

proper where the question presented is one “about which there may have been a reasonable and 

an honest difference of opinion at the time the appeal was taken.” Honaker & Feeney v. Hartley, 

140 Va. 1, 15, 124 S.E. 220, 224 (1924). Here, mother was defending the ruling of the trial 

court. Because we are reversing that ruling, this is an issue about which there was “a reasonable 

and an honest difference of opinion.” Thus, we deny father’s request for attorney’s fees and 

costs on appeal. 

CONCLUSION

 We hold that the trial court erred in finding that father voluntarily left his position at 

Capital One. We further find that the trial court failed to consider the other factors relevant to an 

analysis of whether father is voluntarily underemployed in his current position, particularly 

whether father’s efforts to find a position were reasonable and whether other positions in the 

Richmond area were available to father, utilizing his education and experience, at a pay level 

comparable to his former positions with Capital One and CitiFinancial. We reverse the decision 

of the trial court and remand for proceedings consistent with this opinion. 

Reversed and remanded.