COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Fitzpatrick and Annunziata 

Argued at Alexandria, Virginia 

TOVE REIAKVAM HEAD 

 OPINION BY 

v. Record No. 0159-96-4 JUDGE ROSEMARIE ANNUNZIATA 

 FEBRUARY 11, 1997 

GORDON LAWRENCE HEAD 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jane Marum Roush, Judge 

 Carole Ann Roop (Robert E. Shoun; Shoun & 

Bach, on briefs), for appellant. 

 Joseph A. Condo (Cheryl K. Graham; Condo & 

Masterman, on brief), for appellee. 

 This matter came before the circuit court on the parties' 

cross-motions seeking modification of child and spousal support 

awards. The court found the only material change of circumstance 

affecting the parties was the July 1995 legislative revision to 

the child support guidelines. As a result, the court reduced 

husband's child support obligation commensurate with the revised 

guidelines but declined to modify spousal support. Wife appeals, 

contending that the trial court erred (1) in refusing to deviate 

from the presumptive amount of child support established by the 

revised guidelines; or, alternatively, (2) in refusing to 

increase spousal support in an amount equivalent to the reduction 

in child support; and (3) in refusing to award her attorney's 

fees. Husband raises assignments of cross-error, contending that 

the trial court erred (1) in determining his income for 1994 and 

1995; (2) by failing to consider the reduction in his income a 
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material change in circumstance; (3) in refusing to order the 

reduction in child support retroactive to July 1, 1995; and (4) 

in refusing to award him attorney's fees. Finding no error, we 

affirm the trial court's decision. 

I. RELEVANT FACTS 

 Appellant, Tove Reiakvam Head (wife), and appellee, Gordon 

Lawrence Head (husband), were divorced by final decree entered 

June 22, 1993. The parties are the parents of one minor child. 

 Pursuant to a pendente lite decree, husband paid wife $2,000 

per month in child support and $5,000 per month in spousal 

support, based on his projected income of $270,000 for 1992. 

Following the divorce proceedings, the court found that husband 

had "grossly underestimated" his projected earnings, finding his 

yearly income to be approximately $450,000. The final decree 

ordered husband to pay $3,062 in monthly child support, based 

upon the applicable guidelines, and $5,688 in monthly spousal 

support. Although the court also found that wife, who was not 

working, would be able to earn between $20,000 to $35,000 

annually, it declined to impute income to her. Instead, the 

court based the child and spousal support awards solely on 

husband's income and provided that it would review the awards in 

March 1994, if the parties so desired. 

 At a hearing held in March 1994, the court found husband's 

income to be $400,000 per year, stating: 

 In setting his income, I am really 

giving him pretty much the benefit of all of 

the doubts that I did not give him the 
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benefit of last time. 

 And maybe I am -- I may be going too far 

in that direction. I guess let's see at the 

end of the time because the $400,000 includes 

what he is going to get, all his interest and 

everything else. 

At the same time, the court imputed income to wife, who still was 

not working, in the amount of $27,500. After considering, inter 

alia, wife's expected interest income and child care costs, the 

court reapplied the child support guidelines and determined the 

presumptive amount to be $3,279. The court then stated, 

 And so then I figured, well, what does 

she need realistically . . . and I come to 

spousal support of $3,721, which is a total 

of child and spousal of $7,000, which is what 

I figure now. 

* * * * * * * 

 And if you want to agree to some 

different allocation . . . you can. 

The court entered an order on April 13, 1994, directing husband 

to pay wife $3,279 per month in child support and $3,721 per 

month in spousal support. 

 In January 1995, husband filed a motion seeking modification 

of child support on the ground that his actual income from 1994 

was significantly less than the court had projected it to be in 

April of that year. In September 1995, wife filed a motion 

seeking an increase in spousal support on the grounds that (1) 

her needs had increased since April 1994; and (2) that any 

reduction in child support granted pursuant to husband's motion 

would warrant an increase in spousal support. Also in September 
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1995, husband filed a motion seeking a reduction in spousal 

support. 

 At an October 1995 hearing on the matter, husband presented 

evidence that he earned approximately $300,000 from employment 

during 1994 and that these earnings would remain substantially 

the same in 1995. Other evidence husband presented established 

that his employment generated income of approximately $468,000 in 

1992, $366,000 in 1993, $298,000 in 1994, and would generate 

$323,000 in 1995. Husband's evidence also established that he 

earned approximately $60,000 from sources other than employment 

in 1994 and that these earnings would remain substantially the 

same in 1995. 

 Wife presented husband's 1994 tax return as evidence that 

husband was paid approximately $390,000 from his employment that 

year. Husband explained that the $90,000 difference between what 

he actually earned in 1994 and what he reported in 1994 resulted 

from his employer's tax strategy. He testified that two months 

of income earned in 1993 had been deferred to 1994 and that one 

month of income to be earned in 1995 had been advanced in 1994. 

Wife's counsel later stipulated to the court that the parties had 

agreed that the 1993 deferred income would not be considered in 

husband's 1994 income. 

 The court determined that husband's income was approximately 

$375,000 and that the difference between this amount and the 

court's April 1994 finding of income level was not a material 
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change in circumstance warranting a reduction in support. The 

court, however, agreed with husband that the July 1995 revisions 

to the child support guidelines were a material change in 

circumstance that warranted a recalculation of his child support 

obligation. The court ordered that child support be recomputed 

according to the revised guidelines, using $400,000 as the amount 

of husband's income. Wife did not dispute that the guideline 

revision was, effectively, a material change in circumstance. 

 Evidence was also presented on the monthly expenses of wife 

and the child. Ultimately, however, wife conceded, and the court 

found, that there had been no change in wife's personal needs 

following the April 1994 order. 

II. MATERIAL CHANGE IN CIRCUMSTANCE 

 A court may exercise the power granted by Code §§ 20-108 and 

20-109 to modify a decree concerning child or spousal support if 

the party seeking the modification proves that a "material change 

of circumstance ha[s] occurred since the last award or hearing to 

modify support," and that the change "`justifies an alteration in 

the amount of support.'" Hiner v. Hadeed, 15 Va. App. 575, 579, 

425 S.E.2d 811, 814 (1993) (quoting Yohay v. Ryan, 4 Va. App. 

559, 576, 359 S.E.2d 320, 324 (1987)); see Furr v. Furr, 13 Va. 

App. 479, 481, 413 S.E.2d 72, 73 (1992). The threshold finding 

that a material change of circumstance has occurred nullifies the 

preclusive effect of the court's prior adjudication of support. 

Hiner, 15 Va. App. at 580, 425 S.E.2d at 814 ("In the absence of 
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a material change in circumstance, reconsideration of support 

that has been previously adjudicated . . . would be barred by 

principles of res judicata.").1

A. HUSBAND'S INCOME 

 Husband contends the trial court erred in determining his 

income for 1994 and 1995. He contends that his total income was 

approximately $360,000 in 1994 and that he would earn 

substantially the same amount in 1995. The trial court made no 

finding with respect to husband's 1994 income because, as husband 

argued, "there's nothing anybody can do about [the amount he 

claimed he overpaid in 1994]." Furthermore, nothing in the 

record suggests that the court considered that husband had 

actually earned more than $360,000 in 1994. 

 

 1 The doctrine of res judicata is based on 

the concept that the court should not be 

called upon to adjudicate twice upon the same 

set of facts and that an adversary should not 

be twice vexed for the same cause of action. 

 Such considerations, if applied strictly, 

require the rule that a petition to modify an 

order of child support cannot be based on the 

same set of facts that existed when the 

original order was made. Accordingly, to 

justify a modification it must ordinarily 

appear that there has been a change of 

circumstances since the order on the first 

application for a reduction was made. . . . A 

decree for child support is res judicata only 

as long as the circumstances remain the same 

as when the decree was rendered. 

24 Am. Jur. 2d Divorce and Separation § 1082 (1983). See 

generally, Bates v. Devers, 214 Va. 667, 670-71, 202 S.E.2d 917, 

920-21 (1974) (discussing various preclusive effects of res 

judicata doctrine). 
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 The court found that husband would earn approximately 

$375,000 in 1995. Husband claims the uncontroverted evidence 

proved he would earn approximately $360,000, $300,000 from 

employment and $60,000 from other sources. However, husband's 

own evidence presented varying amounts of 1995 income from 

employment for the court to consider, ranging from approximately 

$300,000 to $323,000. Adding the $60,000 he expected to receive 

from other sources to the highest amount of employment income in 

evidence, to wit, $323,000, the court erred, if it all, in 

husband's favor. 

 Next, husband argues that the trial court erred in ruling 

that the $25,000 reduction in his income, from $400,000 to 

$375,000, was not a material change in circumstance warranting a 

reduction of his support obligations. We disagree. 

 Husband's evidence proved that his income varies because of 

the nature of his business. From 1992 to 1995, husband's total 

income was as much as 32% greater than $400,000 and as much as 

10% less. According to husband's evidence, his 1995 income would 

be approximately 4.5% to 10% less than $400,000. According to 

the trial court's finding, husband would receive approximately 

6.25% less than $400,000 in 1995. 

 Given the facts of this case, in light of the proven 

variation in husband's income, together with the evidence of 

husband's income for 1995, we agree with the trial court that a 

variation of 6.25% in a single year is not a material change in 
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circumstance. 
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B. CHILD SUPPORT 

 After the adoption of the child support guidelines, see Code 

§ 20-108.2, an exception was created to the rule requiring a 

material change in circumstance as a condition precedent to the 

modification of child support. See Watkinson v. Henley, 13 Va. 

App. 151, 156-57, 409 S.E.2d 470, 473 (1991); Milligan v. 

Milligan, 12 Va. App. 982, 988, 407 S.E.2d 702, 705 (1991). 

 Our decisions in Watkinson and Milligan held 

that adoption of the support guidelines and a 

support award that pre-dated the guidelines, 

and which varied significantly from the 

presumptively correct amount, provided a 

reason equivalent to a material change in 

circumstance that justified a modification 

hearing. 

Hiner, 15 Va. App. at 579, 425 S.E.2d at 814. This Court has 

extended the rationale of Watkinson and Milligan to create an 

exception to the material change of circumstances requirement 

where a legislative amendment to the child support guidelines 

"significantly changed the earlier guideline considerations and 

amounts." Slonka v. Pennline, 17 Va. App. 662, 664, 440 S.E.2d 

423, 425 (1994). We find the case at bar analogous to Watkinson, 

Milligan, and Slonka, because the 1995 amendment to Code 

§ 20-108.2(B) significantly changed the presumptive support 

obligation for parents earning in the higher income brackets. 

 Accordingly, although technically incorrect that the 

amendment to the guidelines was a "material change of 

circumstance," the trial court correctly heard husband's motion, 

because the support award that pre-dated the amendment to the 
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guidelines varied significantly from the presumptively correct 

amount. Indeed, wife does not dispute that the nearly 50% 

variation in husband's obligation was significant and that 

husband was entitled to a modification hearing. 

 Having found that husband's evidence regarding his income 

for the year in question had not materially changed, the court 

recalculated child support based on the yearly income figure 

determined at the April 1994 hearing. Holding husband's income 

constant at $400,000, his presumptive support obligation under 

the amended guidelines is $1,618.43 per month. 

 Husband asserts, however, that the court's use of that 

income figure to calculate child support under the amended 

guidelines was error and that the court should have applied the 

figure it determined at the October 1995 hearing to be his yearly 

income, to wit, $375,000. We disagree. 

 Under husband's theory, a party seeking a support 

modification could achieve, through the back door, a result 

barred by the front door. In this case, the court properly found 

no material change in circumstance established by husband's 

evidence of income for the year in question. The court's finding 

on this issue, which we have affirmed, supra, is a finding of res 

judicata. As such, the issue of husband's income could not be 

properly addressed anew. Accordingly, having found no material 

change in circumstance based on husband's income, the court 

properly recalculated the child support award solely by applying 
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the amended guidelines to the income amount it had determined in 

April 1994. See Hiner, 15 Va. App. at 580, 425 S.E.2d at 814. 

The court did not err in doing so. 

C. SPOUSAL SUPPORT 

 The trial court found no material change in circumstance 

with respect to wife's needs after the 1994 award. Wife does not 

dispute this finding. Wife, however, argues that the court had 

earlier found that her and the child's total household needs were 

$7,000 per month. Accordingly, she contends that the court's 

reduction in child support, pursuant to the amended guidelines, 

is itself a material change in circumstance, warranting an 

increase of spousal support to meet the $7,000 household need. 

 First, we disagree that the court had earlier determined an 

aggregate "household" need in the amount of $7,000, which it then 

apportioned between the child and spousal support amounts. To 

the contrary, based on the record wife presents, it appears the 

court first applied the child support guidelines and determined 

the presumptive amount to be $3,279. It then determined wife's 

needs supported a spousal support award of $3,721. The trial 

judge then stated, "[This] is a total of child and spousal of 

$7,000, which is what I figure now." 

 Obviously, the sum of the court's support awards equalled 

$7,000. However, we decline to accept wife's argument that 

preclusive effect is to be given to the sum of those awards. 

Doing so would violate the well established principle that 
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"[c]hild support and spousal support are separate and distinct 

obligations based on different criteria." Lambert v. Lambert, 10 

Va. App. 623, 628-29, 395 S.E.2d 207, 210 (1990) (child support 

not to be considered in determining award of spousal support). 

In light of this principle, a change in child support cannot be 

deemed a circumstance "material" to a support award.2 In the 

absence of proof of a material change in circumstance, the court 

was precluded by principles of res judicata from reevaluating the 

spousal support award, see Hiner, 15 Va. App. at 580, 425 S.E.2d 

at 814, and properly declined to modify it. 

III. DEVIATION FROM PRESUMPTIVE AMOUNT 

 When determining a party's child support obligation, whether 

initially or at a modification hearing, the court must begin by 

computing the presumptive amount using the schedule found in Code 

§ 20-108.2(B). Watkinson, 13 Va. App. at 158, 409 S.E.2d at 473; 

Code § 20-108.1(B).3 The presumptive amount is rebuttable, and 

 

 2Furthermore, it cannot be argued that the trial judge was 

inconsistent in finding that the "needs" had not changed but, 

nevertheless, reducing the amount of child support. Contrary to 

wife's position, the trial judge did not find that the aggregate 

"household" need remained unchanged. Rather, she found the 

child's needs would be met by the reduced award and wife's needs 

remained unchanged. 

 3Code § 20-108.1(B) provides, in part: 

 In any proceeding on the issue of determining 

child support . . . the court shall consider 

all evidence presented relevant to any issues 

joined in that proceeding. The court's 

decision in any such proceeding shall be 

rendered upon the evidence relevant to each 

individual case. However, there shall be a 

rebuttable presumption in any judicial or 
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the court may deviate from the presumptive amount if such amount 

is determined to be unjust or inappropriate, in consideration of 

any relevant evidence pertaining to the factors set forth in Code 

§§ 20-107.2 and 20-108.1. Id. at 158, 409 S.E.2d at 473-74; Code 

§§ 20-108.1(B), 20-108.2(A).4 Moreover, we held in Watkinson

that where the application of the guidelines reduced the amount 

of support payable pursuant to a consent decree entered prior to 

the enactment of the guidelines, the court must explain why a 

reduction in child support from the former award would not be 

unjust and inappropriate. Id. at 161, 409 S.E.2d at 475. 

"`Deviations from the presumptive support obligation must be 

supported by written findings which state why the application of 

the guidelines in the particular case would be unjust or 

inappropriate.'" Wilson v. Wilson, 18 Va. App. 193, 196, 442 

(..continued) 

administrative proceeding for child support, 

. . . that the amount of the award which 

would result from the application of the 

guidelines set out in § 20-108.2 is the 

correct amount of child support to be 

awarded. . . . The finding that rebuts the 

guidelines . . . shall be determined by 

relevant evidence pertaining to the following 

factors affecting the obligation, the ability 

of each party to provide child support, and 

the best interests of the child. 

 4Code § 20-108.2(A) provides, in part: 

 In order to rebut the presumption, the court 

shall make written findings in the order 

. . . that the application of the guidelines 

would be unjust or inappropriate in a 

particular case as determined by relevant 

evidence pertaining to the factors set out in 

§§ 20-107.2 and 20-108.1. 
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S.E.2d 694, 696 (1994) (quoting Mayers v. Mayers, 15 Va. App. 

587, 591-92, 425 S.E.2d 808, 810-11 (1993)). 

 In the present case, the trial court found the child's needs 

would be met by the presumptive amount of support established by 

the amended guidelines. The evidence of the child's needs 

presented by wife, when adjusted according to the evidence 

presented by husband, supports the trial court's finding that a 

deviation from the presumptive amount was not warranted. That 

evidence established that the child's needs were approximately 

$2,000 per month. Husband's proportional share of that amount, 

approximately 80%, coincides substantially with the presumptive 

amount of his obligation determined pursuant to the amended 

guidelines, to wit, $1,618.43. Accordingly, we find no basis to 

conclude that the trial court erred in failing to determine that 

the presumptive amount of child support was unjust or 

inappropriate. 

 Wife did not dispute that the evidence presented at the 

October 1995 hearing supported the finding that the child's needs 

are approximately $2,000. Rather, wife relied on the court's 

earlier support award of $3,279 as evidence of the child's needs. 

 We find no support for the proposition that the earlier 

award was premised on anything but the presumptive guidelines 

then in effect. Nothing indicates that either party requested 

the court to deviate from the guideline amount to comport with 

the child's actual needs. The basis of the prior award was the 
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legislative presumption of the child's needs. The clear intent 

of the amendment to the guidelines is that the legislature 

presumed that children of parents in certain income brackets 

needed less support than the amount deemed presumptively 

appropriate under the prior guidelines. Here, the presumption 

under the amended provisions is supported by the evidence of the 

child's actual needs.5

 On appeal, wife argues that notwithstanding the fact the 

child's needs did not exceed the presumptive amount, husband had 

the means to provide support in excess of those needs and the 

child had the right to share in husband's prosperity. Wife 

failed to raise these contentions at trial, and we will not 

consider them on appeal. See Rule 5A:18. 

IV. RETROACTIVE MODIFICATION 

 Husband alleges the trial court erred in refusing to modify 

support retroactively to July 1, 1995. We disagree. 

 "No 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." 

 Code § 20-108. Husband filed his petition for modification in 

 

 5Wife argues that the parties' pendente lite consent decree 

is evidence that the child's needs would not be met under the 

amended guidelines. Even assuming consideration of that decree, 

which was entered without prejudice, were proper, it does not 

support wife's position. Under the decree, child support was 

determined to be $2,000 per month. 
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January 1995. The statutory amendments to the guidelines became 

effective in July 1995. Husband did not amend his pleadings and 

the issue of modification based on the amended guidelines was 

addressed for the first time at the hearing in October 1995. At 

that time, husband's next support payment was due November 1, 

1995, the day in which the modified payments took effect. The 

trial court complied exactly with the terms of the statute. 

IV. ATTORNEY'S FEES 

 An award or denial of attorney's fees is a matter committed 

to the sound discretion of the trial court. E.g., Alphin v. 

Alphin, 15 Va. App. 395, 406, 424 S.E.2d 572, 578 (1992). Here, 

the parties were found equally able to pay their own fees. The 

record does not support a contrary finding. Furthermore, with 

respect to the issues before us, we find no evidence that either 

party created unnecessary delay or expense, and the issues raised 

clearly do not lack merit. Accordingly, we find no basis to rule 

that the trial court abused its discretion in failing to award 

either party attorney's fees. 

 For the foregoing reasons, the decision of the trial court 

is affirmed. 

Affirmed.