COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

MARY E. HOWARD 

 MEMORANDUM OPINION* BY 

v. Record No. 1400-93-4 JUDGE LARRY G. ELDER 

 JULY 18, 2000 

JAMES T. HOWARD 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Quinlan H. Hancock, Judge 

 Mary E. Howard, pro se. 

 No brief or argument for appellee. 

 Mary E. Howard (wife) appeals from a 1993 order of the 

Circuit Court of Fairfax County (1) determining the amount of 

child and spousal support to be paid to her by her former 

spouse, James T. Howard (husband)1; (2) refusing her request to 

make the figures retroactive to the date of her request for 

support; and (3) failing to impose sanctions on husband's 

attorney. We hold that the bulk of the trial court's challenged 

rulings did not constitute an abuse of discretion but that the 

court committed reversible error in determining husband's gross 

income for purposes of calculating child and spousal support by 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

1

 Wife's appeal was stayed during the pendency of husband's 

bankruptcy petition. 
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failing to include husband's net rental income from the dental 

corporation, interest, dividends, capital gains, and certain 

clothing and tax preparation costs; improperly including in his 

income wife's spousal support; and in apportioning child support 

expenses between the parties. Therefore, we reverse the 

decision of the trial court as to child and spousal support and 

remand for further proceedings consistent with this opinion. 

I. 

ANALYSIS 

A. 

SPOUSAL AND CHILD SUPPORT 

1. GROSS INCOME CALCULATION

 "Decisions concerning both [spousal and 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 for child support, Code § 20-108.2(C) requires the 

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

include, but not be limited to, income from salaries, wages, 

commissions, bonuses, . . . pensions, interest, . . . spousal 
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support, [and] rental income." Code § 20-108.2(C). This income 

"include[s] nonmonetary as well as cash income." Carmon v. 

Dep't of Soc. Servs., 21 Va. App. 749, 755, 467 S.E.2d 815, 818 

(1996). Gross income "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). 

 A court determining spousal support also shall consider all 

income of the parties. See Code § 20-107.1. 

a. Imputation of Income

 A spouse's voluntary underemployment may serve as a basis 

for the trial court to impute income to the underemployed spouse 

when calculating child and spousal support. See Code 

§§ 20-107.1, 20-108.1(B), 20-108.2(A); see also Stubblebine v. 

Stubblebine, 22 Va. App. 703, 708, 473 S.E.2d 72, 74 (1996) (en

banc); Bennett v. Dep't of Soc. Servs. ex. rel. Bennett, 22 Va. 

App. 684, 691-92, 472 S.E.2d 668, 672 (1996). 

 Husband testified that his employment with Seylor's Dental 

Laboratory did not detract from his dental practice earnings 

because "[he] did not have the patients to replace it" and had 

been unable to find other suitable employment. Wife presented 

no evidence to refute husband's testimony, other than her 

general implication during cross-examination of husband that he 

could earn more money working as a dental hygienist than he did 
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working at Seylor's. The trial court did not abuse its 

discretion by accepting husband's testimony and failing to 

impute income to husband for purposes of calculating child and 

spousal support. 

b. Rental Income and Other Benefits

 We hold the trial court did not err in excluding income 

husband received from renting a jointly owned condominium but 

did err in failing to include income he received from renting 

space in his home to his dental corporation. Including 

husband's expenses for the condominium mortgage, homeowner's 

fees, maintenance, repairs and the like, husband claimed a net 

loss for rental of the condominium. Although Code § 20-108.2(C) 

requires the inclusion of rental income in the gross income 

calculation, it also permits the deduction of reasonable 

business expenses. Therefore, we hold the trial court did not 

abuse its discretion in concluding implicitly that husband had 

no net rental income attributable to the condominium for 

purposes of child support. Similarly, we hold the trial court 

also acted within its discretion in concluding implicitly that 

husband had no net rental income from the condominium for 

purposes of spousal support. See Code § 20-107.1. 

 In contrast to the expenses for the condominium, husband 

claimed no reasonable business expenses to be deducted from the 

$400 monthly income he received for rental of office space in 
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his home to his dental practice. Although husband used the $400 

monthly rental income to make his $390 monthly mortgage payment, 

this payment covered the mortgage for the entire house, and no 

evidence established what portion of the payment may have been 

attributable to the office portion of the house rather than the 

residential portion. Under these facts, the trial court abused 

its discretion in failing to include the $400 rent husband 

received from the corporation each month in determining 

husband's gross income for purposes of calculating child 

support. The court's failure to include this rental income in 

its child support calculations also calls into question whether 

it considered the rental income in the context of its spousal 

support calculations. Therefore, we reverse and remand to the 

trial court for a recalculation of both child and spousal 

support.2

2

 Although wife has not assigned error to the trial court's 

failure to include husband's 1992 interest and capital gains in 

his gross income, we note that both categories of receipts are 

income under Code § 20-108.2(C) if held to have been received 

contemporaneously. See Goldhamer v. Cohen, 31 Va. App. 728, 737 

n.2, 525 S.E.2d 599, 603 n.2 (2000); id. at 730, 525 S.E.2d at 

604 (Elder, J., concurring). We also note that same code 

section contains specific requirements regarding the 

consideration of spousal support payments in apportioning child 

support payments between parents. It provides that "spousal 

support included in gross income shall be limited to spousal 

support paid pursuant to a pre-existing order . . . and . . . 

shall be deducted from the gross income of the payor when paid 

pursuant to a pre-existing order or written agreement between 

the parties to the present proceeding." That code section also 

states that "'gross income' shall mean all income from all 

sources, and shall include . . . spousal support." Although 
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 Wife contends the trial court erroneously excluded from 

husband's gross income sums paid by his corporation for various 

benefits he received. We hold the court did not err in 

excluding sums paid for the lease and operation of an 

automobile; utilities; lawn care; pest control; appliances; 

furnishings; entertainment; meals; disability, life and health 

insurance, and unreimbursed medical expenses. The evidence, 

viewed in the light most favorable to husband, supported a 

finding that these costs were legitimate business expenses. 

 Wife contends the trial court erroneously permitted husband 

to deduct from his gross income expenses paid by the corporation 

for attorney's fees incurred in the parties' divorce 

proceedings. We hold the record contains insufficient evidence 

to establish the allegation that any such payments were made 

contemporaneously with the support proceeding. On brief, wife 

indicated that entries in the corporate checkbook showing loan 

repayments to Hallmark Bank & Trust totaling $5,451.73 in 1992 

were for a loan used to satisfy legal fees paid by the 

corporation, but wife cites nothing to support this assertion, 

and we are unable to find any evidence in the record to support 

it. See Buchanan v. Buchanan, 14 Va. App. 53, 56, 413 S.E.2d 

237, 239 (1992). Therefore, we presume these payments were for 

 

such errors, standing alone, negate each other in the 

calculation of combined gross income, they produce an incorrect 

allocation of child support between the parties. 
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a reasonable business expense listed on the corporation's 

expense sheet for calendar year or fiscal year 1992 and deemed 

deductible by the trial court. Given the absence of evidence to 

rebut this inference, we hold the trial court did not abuse its 

discretion in permitting the deduction. 

 Wife also contends that the trial court erred in allowing 

the corporation's payment of certain expenses for clothing, fees 

for personal income tax preparation, and dividends and pension 

plan contributions without including these items as income to 

husband.3 On the issue of clothing, husband was not entitled to 

a reduction in gross income for the purchase of clothing not 

specifically required for his work as a dentist. In addition to 

deductions for special shoes, pants, lab coats and the like used 

in his dental practice, husband also claimed deductions for a 

tie, sports jacket and suit all purchased from an ordinary 

department store, and for alterations for the suit. These 

ordinary clothing items did not constitute reasonable business 

expenses, and the corporation's payment for these items and the 

3

 Although the court's failure to include most of these 

figures in husband's income appears to be error, they amount to 

only a small sum of money as compared to the calculation of 

husband's overall income and, standing alone, would not 

necessarily support the conclusion that the trial court 

committed reversible error in fashioning the child and spousal 

support awards. Cf. Gamble v. Gamble, 14 Va. App. 558, 575, 421 

S.E.2d 635, 645 (1992). However, because we reverse and remand 

for the trial court's failure to include husband's more 

substantial rental income, we also review these issues. 
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costs for dry cleaning these and other articles of ordinary 

clothing, which totaled $459.55, should have been included as 

income to husband. 

 The evidence also established that husband paid his 

accountant with funds from the corporation and that $300 of her 

fees were for the preparation of his personal rather than 

corporate tax returns. Therefore, $300 paid by the corporation 

for preparation of husband's personal income tax returns should 

have been included in his gross income. 

 Finally, wife contends husband's receipt of a $100 dividend 

from the corporation and the corporation's contributions to the 

pension plan should be included in gross income. Because Code 

§ 20-108.2(C) specifically includes dividends in gross income, 

we hold that failure to include this sum in husband's gross 

income was error. As to the pension plan contributions, we 

previously have held that voluntary contributions to one's 

pension plan are includable in gross income. See Frazer v. 

Frazer, 23 Va. App. 358, 377-79, 477 S.E.2d 290, 299-300 (1996) 

(voluntary contributions of $30,000 per year). In husband's 

case, however, the contributions were made directly by the 

corporation, were listed as mandatory by the corporate 

accountant, and totaled no more than $911 for calendar year 

1992. Under these circumstances, we hold the court did not 
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abuse its discretion in failing to include these sums in 

husband's gross income. 

 Wife claims husband "laundered money" through their eldest 

son. However, husband testified that the corporation's original 

payment to the son was for cleaning of the office carpets and 

that the son's check to husband individually for the same amount 

was for payment of back rent on the condominium the son rented 

from father. The trial court was entitled to accept this 

explanation and to conclude that the cleaning of the office 

carpets was a reasonable business expense. 

 In keeping with the above, we hold the trial court abused 

its discretion in excluding from husband's gross income his 

rental income from the dental corporation and certain other 

benefits he received from the corporation, and we remand for a 

recalculation of child and spousal support. 

c. Excess Capital in Corporation

 Husband testified that his accountant recommended retaining 

operating capital of about $23,000 in the corporate account. 

The accountant testified that the overhead was about forty 

percent. Using gross corporate receipts of approximately 

$184,000 for calendar year 1992, the corporation's net receipts 

after forty percent overhead, excluding husband's salary, would 

be $110,400. Subtracting husband's "elective" salary of $91,105 

left corporate operating capital of approximately $19,000, an 
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amount lower than recommended by husband's accountant. Finally, 

the accountant's testimony established that the legitimate 

expenses paid by the corporation during calendar year 1992, 

adjusted for the $759.55 of expenses disallowed above, totaled 

$85,592.15, making the actual overhead figure more than 

forty-six percent and leaving corporate operating capital of 

only approximately $7,000. 

 This evidence, viewed in the light most favorable to 

husband, established the trial court did not abuse its 

discretion in failing to adjust husband's gross income upward 

based on earnings retained by the corporation. 

d. Math Error

 The trial court did not abuse its discretion in failing to 

adjust husband's income based on the purported mathematical 

error. First, the accountant testified that she did not use the 

erroneous figures reported by husband and relied instead on the 

actual deposits in the corporate bank account. Therefore, 

viewing the evidence in the light most favorable to husband, the 

error had no impact on the accountant's calculations. 

 Second, assuming the error did impact the accountant's 

figures such that the patient income for calendar year 1992 

should have been $159,580, as represented by wife, this 

difference has no impact on the funds available to husband. 

Under either analysis in Section I.A.1(c) concerning excess 
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capital in the corporation, this increase in receipts would 

still have left corporate operating capital at a level lower 

than the $23,000 amount recommended by husband's accountant. 

Under either formulation, the error, if any, was harmless 

because the increase in corporate income was not large enough to 

require husband to increase his elective wages under the facts 

of this case. 

2. WIFE'S NEED VERSUS HUSBAND'S ABILITY TO PAY

 Because we remand the issue of spousal support for 

redetermination based on the trial court's failure to consider 

various items of additional income to husband, we do not 

consider wife's proportionality argument in this appeal. 

B. 

DATE FOR MODIFICATION OF SPOUSAL AND CHILD SUPPORT 

 Code §§ 20-108 and 20-112 provide that awards of child and 

spousal support "may be modified with respect to any period 

during which there is a pending petition for modification." The 

legislature's use of the word "may" indicates that the decision 

whether to make a modification effective as of the date of 

notice of the petition to the opposing party rests within the 

discretion of the trial court. Compare Code § 20-108.1(B) (as 

amended in 1996) (providing that "[i]n any proceeding on the 

issue of determining child support . . . , [l]iability for 

support shall be determined retroactively for the period 
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measured from the date that the proceeding was commenced by the 

filing of an action with the court" provided certain conditions 

are met (emphasis added)). The court's failure to make the 

modification effective as of the date of wife's petition did not 

constitute an abuse of discretion. 

C. 

FAILURE TO SANCTION HUSBAND'S ATTORNEY 

 Any duty the trial court may have had to report attorney 

violations of the Code of Professional Responsibility is not 

within our jurisdiction. The appropriate professional authority 

to which the trial court had a duty to report, if any, was the 

Virginia State Bar. See Virginia Code of Prof. Resp., Disc. 

Rule 1-103. 

 The only authority the trial court had to sanction 

husband's attorney was to hold him in contempt of court. Code 

§ 18.2-456 provides that trial courts "may" punish officers of 

the court for "[m]isbehavior in the presence of the court, or so 

near thereto as to obstruct or interrupt the administration of 

justice." Code § 18.2-456 (emphasis added). A court merely has 

the discretion to punish for contempt but is not required to do 

so. See id.; Brown v. Commonwealth, 26 Va. App. 758, 762, 497 

S.E.2d 147, 149 (1998). The court was not required, simply by 

recognizing counsel's misrepresentations in his motion for 

recusal, to find counsel in contempt. Whether to sanction 
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counsel for the alleged misrepresentations rested within the 

sound discretion of the court. 

II. 

CONCLUSION 

 We hold the trial court did not abuse its discretion in 

failing to make wife's requests for modification of support 

retroactive to the date of the filing of her petition or in not 

imposing sanctions on husband's attorney. On the issue of 

husband's gross income, the court did not abuse its discretion 

in concluding husband was not voluntarily underemployed or 

underpaid by his corporation or in concluding that the possible 

mathematical error acknowledged by husband's accountant had no 

impact on its calculation of gross income. However, we hold the 

trial court abused its discretion in failing to include in 

husband's gross income his net rental income from the dental 

corporation, interest, dividends, capital gains, and certain 

clothing and tax preparation costs; improperly including in his 

income wife's spousal support; and in apportioning child support 

expenses between the parties. Therefore, we reverse and remand 

to the trial court without reaching wife's assignment of error 

alleging that the court improperly balanced her need for spousal 

support against husband's ability to pay. 

 Affirmed in part,

reversed in part

and remanded.