COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata 

Argued at Salem, Virginia 

WILLIAM HENRY TANGER, III 

 MEMORANDUM OPINION* BY 

v. Record No. 3168-96-3 CHIEF JUDGE NORMAN K. MOON 

 JULY 8, 1997 

FLAVIA DIAZ de TANGER 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE 

Robert P. Doherty, Jr., Judge 

 Terry N. Grimes (King, Fulghum, Snead, Nixon & 

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

 David A. Furrow for appellee. 

 William Henry Tanger, III ("husband"), appeals the trial 

court's order modifying spousal support. Husband asserts that 

the trial court erred in: (1) finding that the parties' material 

change in circumstances warranted an increase in husband's 

spousal support payments; (2) admitting into evidence a statement 

prepared by Flavia Diaz de Tanger ("wife") estimating her cost of 

living expenses at the standard of living she enjoyed at the time 

of the parties' divorce; (3) considering in its determination of 

spousal support wife's decision to care for her adult daughter 

who was injured in an accident; and (4) denying husband's motion 

for relief pursuant to Rule 4:12 and proceeding with an 

evidentiary hearing. In response, wife makes the additional 

assertion that the trial court erred in failing to order that her 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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 award of spousal support be made retroactive to January 31, 

1994. 

 We hold that: (1) the record supports the trial court's 

finding that the material change in the parties' circumstances 

warranted an increase in spousal support in the amount of $700; 

(2) that the trial court properly considered wife's evidence of 

her standard of living at the time of her divorce; (3) the trial 

court properly considered wife's voluntary unemployment in 

determining support; (4) the court did not abuse its discretion 

in denying husband's motion for relief; and (5) the court did not 

abuse its discretion in ordering support retroactive to August 

19, 1996. 

 Husband and wife were divorced in 1981. On July 18, 1990, 

after a series of spousal support orders, husband was ordered to 

pay wife $500 in monthly spousal support. On May 14, 1992, 

subsequent to an ore tenus hearing on husband's motion to modify 

support, the circuit court found that wife was voluntarily 

underemployed and imputed income to her in the amount of $2,800 

per month. Accordingly, the trial court reduced husband's 

monthly spousal support obligation to zero. 

 On January 31, 1994, wife petitioned for an increase in 

spousal support. The trial court conducted an ore tenus hearing 

on January 10, 1995 to determine if a material change in 

circumstances, warranting a modification of support, had 

occurred. Wife, who was forty-eight at the time of the hearing, 

presented evidence that since 1992, she had filed for bankruptcy 
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and received a discharge of the majority of her debt. However, 

the lender of her student loan of $6,032.63 had demanded 

immediate repayment. Wife also stated that she had been unable 

to afford living by herself and consequently, had moved in with 

her daughter in August, 1994. Wife's monthly expenses were 

$2,802 in 1991 and had increased to $2,855 in 1995. The record 

also reflected that despite possessing a B.S. degree in Art 

History and Spanish Literature from Hollins College, which she 

received in 1989, wife was unable to find full-time employment in 

Roanoke, Northern Virginia, or other locations. 

 The trial court concluded that no material change in 

circumstances had occurred and therefore denied wife's request 

for modified support. Wife appealed, and we reversed holding 

that the evidence proved a material change in circumstances had 

occurred. Accordingly, we remanded for determination by the 

trial court of whether the material change warranted modification 

of support. On October 21, 1996, the trial court conducted an 

ore tenus hearing to consider the matter as remanded. 

 The record established that wife lived with her daughter in 

an apartment within a lake house owned by William Pringle. Wife 

had no lease and paid no rent or utilities. Pringle testified 

that wife and her daughter moved into the apartment in October, 

1995 and were living in the apartment on a temporary basis. 

Pringle agreed to allow wife and her daughter to reside in the 

apartment, which he typically rented for $400, until their 

departure for Connecticut where they planned to live. They 
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eventually moved to Connecticut, but were there only a short time 

before wife's daughter was involved in a serious accident which 

rendered her unable to work for an extended period of time. 

Consequently, wife and her daughter returned to Pringle's home. 

Pringle further testified that since returning, wife and her 

daughter had discussed moving to California. Wife also stated 

that in exchange for doing errands and secretarial work for 

Pringle, he paid her health insurance premium of $216 a month. 

Pringle also permitted wife to use his credit card for various 

purchases. Pringle also provided wife with the use of one of his 

automobiles. 

 The record established that since 1992 wife had not obtained 

full-time employment. Wife testified that in 1995 she earned 

$2,915 from her translation work, and $4,763.45 in total income. 

 Wife did not produce any letters or documentation of her efforts 

to find employment, however, she testified that she had made 

telephone or in person inquiries, including calls to contacts in 

Mexico about the possibility of establishing an import\export 

business. Wife testified that she had not been seeking 

employment recently because she had remained at home in order to 

care for her daughter. Wife explained that since her daughter's 

accident, she and her daughter had been living off a $10,000 

insurance payment the daughter received for her accident and that 

they received food sent to them from relatives in Mexico. 

 With regard to her monthly expenses, wife indicated that she 

had expenses for transportation, food and clothing. Wife did not 
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specify the amounts of these expenses. She produced an expense 

sheet indicating estimated monthly living expenses of $4,060, 

were she to resume living in the fashion she had enjoyed while 

married. Wife's figures included her estimate to lease a 

residence, based on her inquiry regarding current rental rates. 

 Husband presented evidence that his partnership, Imaging 

Advertising, had been experiencing difficulty and had operated at 

a loss through August, 1996. Husband testified that the 

partnership lost several large clients in 1996 and that he 

anticipated that the partnership would continue to lose clients 

in 1997. Between 1992 and 1996 the company reduced staff 

significantly, decreasing from thirteen or fourteen employees in 

1992 to five employees in 1996. William Houck, Jr., a former 

advertising agency owner, testified about the problems besetting 

the advertising industry and stated that after his own 

advertising company failed after sixteen years, it took him two 

years to find a new position working in billboard advertising on 

commission. 

 Husband also indicated that he owned interests in two real 

estate partnerships: Et Cetera Associates and Ad Hoc Associates. 

 Husband owned approximately fifty percent of Et Cetera 

Associates which owned two pieces of realty including one with a 

lot assessed at $6,500 and a building assessed at $95,500, and 

another with land valued at $40,000 and a building valued at 

$83,000. Husband stated that he was also a sixty percent owner 

of Ad Hoc Associates which owned the land and building occupied 
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by Image Advertising, assessed at $39,500 and $98,000, 

respectively. 

 Husband presented a financial statement disclosing a net 

worth of $314,000. Wife contends that based on husband's tax 

returns and other financial information, his net worth was 

actually $381,986. Husband earned $55,627 in 1992, $61,671 in 

1994, and $45,428 in 1995. Husband anticipated earning 

approximately $40,000 in 1996. Husband reported living expenses 

of $2,325 in March, 1992, and living expenses of $3,739 for 

October, 1996. Of these expenses, $50 a month was for 

recreation, $300 a month for vacation and trips, $150 for 

charitable gifts, $150 for lessons and sports, $50 for gifts, $50 

for the parties' daughter, and $100 for his girlfriend's 

children. 

 Based on this evidence, the trial court found that the 

material change in circumstances warranted a modification of 

spousal support. The trial court increased husband's monthly 

spousal support obligation from zero to $700 a month. 

Modification of Support

 "The moving party in a petition for modification of support 

is required to prove both a material change in circumstances and 

that this change warrants a modification of support." 

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

30 (1989). "`Changed circumstances' must bear upon the financial 

needs of the dependent spouse or the ability of the supporting 

spouse to pay." Hollowell v. Hollowell, 6 Va. App. 417, 419, 369 
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S.E.2d 451, 452 (1988). Having previously determined that a 

material change in circumstances occurred, here we consider only 

whether the trial court erred in finding that the material change 

warranted a modification of spousal support. 

 "We will not disturb the trial court's decision where it is 

based on an ore tenus hearing unless it is `plainly wrong or 

without evidence in the record to support it.'" Furr v. Furr, 13 

Va. App. 479, 481, 413 S.E.2d 72, 73 (1992) (quoting 

Schoenwetter, 8 Va. App. at 605, 383 S.E.2d at 30). Decisions 

regarding spousal support rest within the sound discretion of the 

trial court and will not be reversed on appeal unless plainly 

wrong or unsupported by the evidence. Konefal v. Konefal, 18 Va. 

App. 612, 614, 446 S.E.2d 153, 154 (1994) (citation omitted). 

Further, "[i]n determining whether credible evidence exists, the 

appellate court does not retry the facts, reweigh the 

preponderance of the evidence, or make its own determination of 

the credibility of witnesses." Wagner Enters., Inc. v. Brooks, 12 

Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). 

 In light of the record, we cannot say that the trial court 

abused its discretion in increasing husband's spousal support 

obligation to $700 a month. Wife presented credible evidence 

that she had sought employment until her daughter's accident and 

that she had been unsuccessful in obtaining a position. Wife's 

part-time employment as a translator was insufficient to meet 

wife's monthly expenses. Similarly, while wife might have also 

taken a full-time entry level position in the Roanoke area, such 
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a position would not have provided her with income sufficient to 

meet her monthly expenses. Accordingly, the trial court, while 

finding that wife was voluntarily unemployed, did not err in 

imputing only that amount of income the evidence established was 

available to her based on her qualifications and the availability 

of employment for a person so qualified. Consequently, we hold 

that the trial court did not abuse its discretion in modifying 

spousal support in order to provide wife with the additional 

income necessary to meet the shortfall between her imputed income 

and her monthly expenses. We further hold that the trial court 

did not abuse its discretion in finding that a monthly support 

obligation of $700 was within husband's means. The record 

established that husband's monthly expenditures on gifts, 

vacations, sports, and lessons, alone, exceeded the amount of the 

support ordered. 

 Husband's objection to the trial court's consideration of 

the monthly expenses wife estimated she would have were she to 

maintain the standard of living she experienced while married, is 

also without merit. "It is well established that spouses 

`entitled to support have the right to be maintained in the 

manner to which they were accustomed during the marriage,' 

subject to the other spouse's ability to pay." Furr, 13 Va. App. 

at 483, 413 S.E.2d at 75 (quoting Dukelow v. Dukelow, 2 Va. App. 

21, 26, 341 S.E.2d 208, 210 (1986)). Accordingly, whether 

considering an original award of support, or a modification of 

that award, evidence of the parties' standard of living at the 
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time of their divorce is properly admissible for the trial 

court's consideration in determining spousal support. See Furr, 

13 Va. App. at 483-84, 413 S.E.2d at 75. 

Motion for Relief

 Husband alleges that during discovery, he "attempted to 

discover the true nature and extent of [wife's] income and 

expenses," but that wife refused to provide him with the 

requested information. Consequently, husband filed a motion in 

limine/motion for relief pursuant to Rule 4:12. The trial court 

denied the motion and proceeded with an evidentiary hearing. 

 "Rule 4:12 gives the trial court broad 

discretion in determining what sanctions, if 

any, will be imposed upon a litigant who 

fails to respond timely to discovery." 

Woodbury v. Courtney, 239 Va. 651, 654, 391 

S.E.2d 293, 295 (1990). And a trial court's 

decision to admit evidence that is not timely 

disclosed, rather than impose the sanction of 

excluding it, will not be reversed unless the 

court's action amounts to an abuse of 

discretion. First Charter v. Middle 

Atlantic, 218 Va. 304, 308-09, 237 S.E.2d 

145, 147-48 (1977). 

Rappold v. Indiana Lumbermens Mutual Ins., 246 Va. 10, 14, 431 

S.E.2d 302, 305 (1993). 

 Here, the record establishes that wife responded to 

husband's discovery requests, albeit perhaps in a manner that 

husband regarded as insufficient. However, the record also 

establishes that husband had the opportunity to conduct and to 

access a substantial amount of discovery generated by the prior 

proceedings in this matter. The trial court observed this in 

denying husband's motion, noting that "the reason I overrule your 
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motion is because there has been a tremendous amount of discovery 

in this case. And [wife] was on the witness stand to testify, 

and I realize you might have had some greater advantage if you'd 

had this information, but I think you had an opportunity to get 

it out on cross-examination." In light of this evidence, we hold 

that the trial court did not abuse its discretion in denying 

husband's motion and in proceeding with an evidentiary hearing. 

Period of Support

 This case was reinstated to the docket by order entered 

January 31, 1994. In ordering modification of spousal support, 

the trial court ordered support retroactive to August 19, 1996,1

and fixed the amount of arrearage as of November 1, 1996, at 

$1,671. Wife asserts that the trial court erred in failing to 

make the award of spousal support retroactive to January 31, 

1994. 

 Code § 20-112 provides that "[n]o support order may be 

retroactively modified, but 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 party." "Whether to make modification of 

a support order effective during a period when a petition is 

pending is entirely within the discretion of the trial court." 

 

 1Subsequent to our remand of this matter for determination 

of whether the material change in the parties' circumstances 

warranted modification of support, the trial court originally set 

the matter for hearing on August 19, 1996. Husband sought and 

was granted a continuance. 
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O'Brien v. Rose, 14 Va. App. 960, 965, 420 S.E.2d 246, 249 

(1992). Finding no evidence that the trial court abused its 

discretion in ordering support retroactive to August 19, 1996, we 

affirm. 

 Holding that the trial court did not err in finding that the 

material change in the parties' circumstances warranted an 

increase in spousal support and that the evidence supported an 

award of support in the amount of $700 a month, retroactive to 

August 19, 1996, we affirm. 

 Affirmed.