COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Baker, Benton, Coleman, Elder, 

 Bray, Fitzpatrick and Overton 

Argued at Richmond, Virginia 

DANIEL T. STREET 

 OPINION BY 

v. Record No. 2363-95-4 CHIEF JUDGE NORMAN K. MOON 

 AUGUST 12, 1997 

JOYAL C. STREET 

UPON REHEARING EN BANC 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

F. Bruce Bach, Judge 

 

 Lee Anne Washington (Chaplin, Papa & Gonet, 

on brief), for appellant. 

 Richard J. Byrd (Byrd, Mische, Bevis, Bowen, 

Joseph & O'Connor, P.C., on briefs), for 

appellee. 

 Daniel T. Street ("husband") appeals the trial court's 

denial of his petition for modification of spousal and child 

support. Husband asserts that the trial court erred in finding 

that he failed to prove a change of circumstances that warranted 

modification of his support obligation. A panel of this Court 

reversed the trial court's decision, holding that the trial court 

erroneously disregarded uncontradicted expert testimony that 

husband's mental condition worsened in the months following the 

divorce decree, constituting a material change in circumstances 

warranting modification of his support obligation. See Street v. 

Street, 24 Va. App. 2, 480 S.E.2d 112 (1997). We granted Joyal 

C. Street ("wife") a rehearing en banc. We hold that because the 

trial court determines a witness' credibility and the weight to 
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be given an expert's opinion, the trial court, having found 

husband's conduct suspect, was not required to give any weight to 

the expert opinion. Accordingly, we hold that the trial court's 

decision was not plainly wrong, and we affirm. 

FACTS

 The parties married in 1969 and had five children, two of 

whom were dependents at the time of the hearing. During the 

marriage, husband supported wife and their children by operating 

a carpet installation business. The business' primary source of 

revenue was from subcontracts with L & L Carpet Company, a 

business operated by Eugene Lane, husband's long-time friend. 

Husband expanded his business in 1990 to include the retail sale 

of carpeting materials. From 1990 to 1994, husband's business 

averaged gross revenues of more than $1,000,000 a year and paid 

husband an annual salary of approximately $76,000. Husband's 

financial records established that in actual withdrawals, husband 

withdrew $117,861 in 1993 and $87,419 in 1994 for personal use. 

Despite the business' substantial revenues, poor record keeping 

and billing practices resulted in a frequently overdrawn checking 

account and, by the end of 1994, current liabilities that 

exceeded current assets by at least $36,000. In addition, by 

1995, the business owed federal taxes for 1992, 1993, and 1994, 

and had borrowed $18,000 from husband's relatives. 

 The parties separated in December, 1992, and wife filed for 

divorce in 1993. The trial court held three days of hearings on 

equitable distribution, spousal support and child support. After 
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extensive testimony regarding the status of husband's business, 

including evidence concerning its debts and tax liabilities, the 

trial court determined that the business had a fair market value 

of $160,000 and that husband drew a salary of $6,139 per month 

from his business and an additional $1,500 per month from "side 

jobs." In the equitable distribution division, the trial court 

awarded the business to husband, the marital home to wife. As to 

support, the trial court ordered husband to pay $2,300 per month 

in spousal support and $921 per month in child support. Husband 

testified that after hearing the court's decision, that he felt 

that he could not continue with his business: 

 I thought I couldn't continue. I just felt 

that I couldn't continue the way I was 

continuing. I knew that I was -- I was 

$14,000 behind in my checking account, and we 

were forcing checks every day almost, and I 

owed a lot of people a lot of money and I 

didn't know how to stop it. And I knew that 

I was going to be forced to be closed if he 

[Lane] didn't come in and maybe reconstruct 

me or tell me what I was doing wrong or 

something. 

 The day after the trial court's order, Lane reviewed 

husband's books and agreed to assist husband, provided husband 

agreed to follow Lane's directions. After spending three days 

assessing husband's business, Lane concluded that the business 

was beyond salvage and he told husband that the business should 

be dismantled in an orderly fashion such that none of the 

employees would be "hurt." Lane recommended that husband 

"shouldn't just shut the doors and board it up." Consequently, 

husband began the procedure of closing his business. On June 16, 
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1995, husband concluded dismantling his business. Subsequently, 

husband went to work for Lane at Lane's L & L Carpet business, 

earning a salary of $625 per week, a reduction in income of 

approximately sixty percent. 

 On August 18, 1995, husband filed a petition for 

modification of spousal and child support, alleging a material 

change in both his mental health and the condition of his 

business. At a modification hearing on September 27, 1995, 

husband's mental health counselor, Zeena Zeidberg, and his 

psychologist, Ellen Dixon, testified regarding husband's mental 

condition. Ms. Zeidberg stated that she had begun seeing husband 

in January, 1993, at which time she observed that husband had 

disorganized, unfocused thought patterns and regularly 

encountered difficulty maintaining a structured discussion during 

their appointments. Based on her observations, Ms. Zeidberg 

suspected that husband might be suffering from Attention Deficit 

Disorder (ADD), an involuntary, neurological disorder that 

impairs a person's ability to process information, a condition 

that may be exacerbated by stress. Ms. Zeidberg arranged for 

husband to take test dosages of the prescription drug Ritalin, 

beginning in May, 1994, a year before the final support decree 

was entered. After husband responded well to the drug, Ms. 

Zeidberg suggested husband see a clinical psychologist for a 

complete evaluation. Husband chose not to pursue a diagnosis at 

that time but continued taking the test dosages of Ritalin. 

 Ms. Zeidberg testified that she believed that husband had 
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suffered from ADD throughout the course of his life and that he 

had suffered from the untreated disorder during the entire period 

that he operated his business. She stated that after beginning 

his treatment, husband's mental condition improved markedly and 

continued to do so until the time of the final divorce 

proceedings. She testified that after the final divorce 

proceedings began, despite the fact that husband was still taking 

Ritalin, his condition worsened and he appeared to show symptoms 

of depression as well as ADD. 

 Dr. Ellen Dixon testified that she consulted with Dr. Eist, 

a psychiatrist who had seen husband on August 23, 1995, and who 

had diagnosed him with ADD and chronic depression. Dr. Eist 

concluded that husband "had this ADD undoubtedly all his life" 

and that he suffered from severe depression as well as from an 

anxiety disorder. Dr. Dixon also concluded that husband suffered 

from ADD and depression and anxiety disorders and testified that 

because ADD, chronic depression, and anxiety disorder are all 

neurochemical disorders that affect the neurotransmitter system, 

"they all make each other worse" when they occur simultaneously. 

 When asked whether specific stresses in husband's life had 

exacerbated husband's ADD, Dr. Dixon speculated that it was 

possible but added that "there is a lot I don't know here because 

I am new in this picture." 

 Dr. Dixon offered the following opinion regarding husband's 

counsel's inquiry concerning husband's ability to work: 

 Q. In the two sessions that you have had 

with Mr. Street, have you been able to 
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or do you have an opinion of his current 

ability to make the kinds of decisions 

that someone managing a business would 

have to make, the sort of prioritization 

and discretionary decisions? 

 A. Yes. 

 Q. What is your opinion? 

 A. My opinion on that is there is no 

way on earth Mr. Street could run a 

business now, or I suspect ever, or 

in the past, frankly, effectively 

work. 

The trial court later asked Dr. Dixon if the purported 

deterioration of husband's mental condition had occurred since 

May and she stated that she believed that "these behaviors have 

been with [husband] forever." 

 At the conclusion of the evidence, the trial court denied 

husband's petition, finding that husband had voluntarily closed 

his business and that his psychological problems existed prior to 

the final divorce hearing. Citing Antonelli v. Antonelli, 242 

Va. 152, 409 S.E.2d 117 (1991), the trial court concluded that a 

modification of husband's support obligations was prohibited as 

husband's reduction in income resulted from his voluntary closure 

of his business. 

MODIFICATION OF SPOUSAL AND CHILD 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); Mansfield v. Taylor, 24 Va. App. 108, 114, 480 S.E.2d 
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752, 755 (1997). The material change "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 S.E.2d 451, 452 (1988). 

 Here, the record established that husband's ADD was not a 

new condition but, rather, as his psychiatrist testified, was a 

condition that had "been with [husband] forever." As such, the 

mere diagnosis and treatment of a condition which existed during 

the entire period that husband ran his business, the income upon 

which his support order was based, would be insufficient to 

sustain a finding of a material change in circumstances. 

However, the only witnesses who testified about husband's mental 

condition also opined that the extreme stress husband experienced 

as a result of the dissolution of his marriage had exacerbated 

his ADD and caused him to suffer from two new disorders, chronic 

depression and anxiety. Husband argues that this evidence was 

sufficient to establish that a material change in his mental 

condition occurred which warranted a modification of support. 

Consequently, we decide what weight the trial court was required 

to give to the testimony of the expert witnesses who presented 

the only testimony concerning husband's mental condition. 

 "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 
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evidence to support it." Martin v. Pittsylvania Department of 

Social Services, 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986). It 

is well established that the trier of fact ascertains a witness' 

credibility, determines the weight to be given to their 

testimony, and has the discretion to accept or reject any of the 

witness' testimony. Bridgeman v. Commonwealth, 3 Va. App. 523, 

528, 351 S.E.2d 598, 601 (1986). Further, the fact finder is not 

required to accept the testimony of an expert witness merely 

because he or she has qualified as an expert. McLane v. 

Commonwealth, 202 Va. 197, 205-06, 116 S.E.2d 274, 281 (1960). 

In determining the weight to be given the testimony of an expert 

witness, the fact finder may consider the basis for the expert's 

opinion. Gilbert v. Summers, 240 Va. 155, 393 S.E.2d 213 (1990). 

 Here, the record establishes that the trial judge, as fact 

finder, had substantial reason not to be persuaded by Ms. 

Zeidberg's and Dr. Dixon's conclusions. Within three days of the 

entry of the final divorce and support decree, husband began the 

dissolution of a business that had grossed more than $1,000,000 

in annual revenues and which had provided husband an income of 

more than $70,000 in each of the years 1992, 1993, and 1994. Two 

months after closing the business, husband filed a modification 

petition asserting that the material change in his mental and 

business conditions warranted a change in his support obligation. 

 In support of husband's assertion that a change in his 

mental condition had occurred, Ms. Zeidberg and Dr. Dixon both 

testified that husband suffered from ADD. However, both also 
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testified that husband must have suffered from ADD his entire 

life and consequently, he suffered from ADD during the entire 

time that he operated his carpet business. Nevertheless, within 

days of the trial court's spousal support award, husband began to 

dissolve his business. Further, Dr. Dixon testified that because 

of the severity of husband's ADD disorder, "there is no way on 

earth Mr. Street could run a business now, or I suspect ever 

. . . ." The accuracy of Dr. Dixon's opinion is belied by the 

fact that husband did conduct a business from which he generated 

substantial income for a period of more than seventeen years, 

while suffering from untreated ADD. Dr. Dixon's diagnosis, which 

was contradicted by husband's work history, provides substantial 

reason for the court to reject Dr. Dixon's opinion and to 

disbelieve husband and the history that he may have provided as 

the basis for the experts' opinions. 

 The trial court was also justified in rejecting Ms. 

Zeidberg's and Dr. Dixon's testimony that the exacerbation of 

husband's ADD, combined with new disorders, caused his business 

difficulties. Husband was the sole source of information that 

formed Ms. Zeidberg's and Dr. Dixon's opinions of husband's 

mental condition. Both testified that he acted in a fashion 

consistent with his representation to them that he was suffering 

severe depression and anxiety as a result of his divorce. 

However, the record established that husband and wife separated 

in December, 1992, more than two years prior to the court's final 

support order and during that period husband continued to run his 
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business and to enjoy substantial income therefrom. In addition, 

by the time of the hearing, husband was living with his 

girlfriend and was working for his friend, Lane, who paid him a 

salary regardless of whether husband reported for work. In 

support of his claim that he was not able to work, husband 

testified that in fact, he did not work very much, and instead 

stayed at his girlfriend's home and helped get her children off 

to school. 

 Further, the evidence shows that in January, 1993, husband 

began receiving treatment for his problems, including the 

successful use of Ritalin in May, 1994. Ms. Zeidberg testified 

that husband had steadily improved while taking Ritalin. Husband 

stated that he continued to take Ritalin throughout the time of 

the divorce proceeding. Nevertheless, despite husband's marked 

improvement for more than a year, his mental condition worsened 

after the trial court's spousal support order. At that time 

husband also suddenly decided to seek psychiatric treatment, a 

course of action recommended to him more than a year earlier by 

Ms. Zeidberg, which husband had refused to pursue. 

 Husband's course of conduct provided a basis for the trial 

court to reject husband's explanation for his reasons for closing 

his business. The trial court determines a witness' credibility, 

Bridgeman, 3 Va. App. at 528, 351 S.E.2d at 601, and the weight 

to give an expert's opinion. Gilbert, 240 Va. at 155, 393 S.E.2d 

at 213. The trial court was entitled to not believe the 

husband's explanation concerning his mental condition and that he 
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was not deriving benefits from his business that Lane had 

absorbed. The trial court was not required to believe or to give 

weight to the expert opinions. Experts do not determine the 

credibility of a witness. See Coppola v. Commonwealth, 220 Va. 

243, 251-53, 257 S.E.2d 797, 802-04 (1979). The trial court did 

not err in rejecting the husband's testimony and that of his 

expert witnesses concerning his mental status and its effect upon 

his ability to have continued to operate his carpet business. 

 Accordingly, we hold that the trial court's decision was not 

plainly wrong, and we affirm. 

 Affirmed. 
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Elder, J., with whom Benton, J., joins, dissenting. 

 For the reasons stated in the panel opinion, see Street v. 

Street, 24 Va. App. 2, 480 S.E.2d 112 (1997), and as stated 

herein, I would hold that the trial court abused its discretion 

when it arbitrarily rejected Ms. Zeidberg's unimpeached, 

uncontradicted, and credible testimony that husband's mental 

health had changed since the entry of the trial court's awards of 

child and spousal support. I would remand this case for further 

proceedings to determine if the change in husband's mental health 

affected his ability to pay child and spousal support at the 

level initially ordered. 

 A. 

 In the portion of its opinion addressing the weight a trial 

court is required to give to the testimony of expert witnesses, 

the majority holds that "it is within the fact finder's 

discretion to accept or reject any of the testimony offered." 

(Emphasis added). In a line of cases dating back to 1930, the 

Virginia Supreme Court has repeatedly held that triers of fact do 

not have carte blanche authority to reject the testimony of 

witnesses and that their discretion to determine credibility is 

limited by the boundaries of reason. Typical of this line of 

cases is Hodge v. American Family Life Assurance Co. of Columbus, 

in which the Court said: 

 While a jury, or a judge trying a case 

without a jury, are the judges of the weight 

of the testimony and the credibility of 

witnesses, they may not arbitrarily disregard 
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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. 

213 Va. 30, 31, 189 S.E.2d 351, 353 (1972) (emphasis added). Our 

Supreme Court has applied this doctrine at least twelve times 

since 1930. See Cheatham v. Gregory, 227 Va. 1, 4-5, 313 S.E.2d 

368, 370 (1984); Chesson v. Commonwealth, 216 Va. 827, 832, 223 

S.E.2d 923, 926 (1976); Williams v. Vaughn, 214 Va. 307, 310, 199 

S.E.2d 515, 517 (1973); Hodge, 213 Va. at 31, 189 S.E.2d at 353; 

Presley v. Commonwealth, 185 Va. 261, 266-67, 38 S.E.2d 476, 478 

(1946); Worsham v. Commonwealth, 184 Va. 192, 194, 34 S.E.2d 234, 

235 (1945); Hamilton v. Commonwealth, 177 Va. 896, 903, 15 S.E.2d 

94, 97 (1941); Fairfax v. Commonwealth, 177 Va. 824, 828, 13 

S.E.2d 315, 316 (1941); Nelson v. Commonwealth, 168 Va. 742, 747, 

191 S.E. 620, 622-23 (1937); Epperson v. DeJarnette, 164 Va. 482, 

485-86, 180 S.E. 412, 413 (1935); Hawkins v. Commonwealth, 160 

Va. 935, 942, 169 S.E. 558, 560 (1933); Spratley v. Commonwealth, 

154 Va. 854, 864, 152 S.E. 362, 365 (1930). 

 This rule applies equally to the testimony of both lay and

expert witnesses. See McLane v. Commonwealth, 202 Va. 197, 206, 

116 S.E.2d 274, 281 (1960) (stating that expert testimony "should 

be given the same consideration as is given that of any other 

witness"). Thus, the majority's holding that triers of fact are 

free to "reject any of the testimony offered" flies in the face 

of sixty-seven years of our Supreme Court's precedents and 
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violates the principle that this Court is "bound by decisions of 

the Supreme Court of Virginia and [is] without authority to 

overrule them." Tart v. Commonwealth, 17 Va. App. 384, 392, 437 

S.E.2d 219, 224 (1993) (citing Roane v. Roane, 12 Va. App. 989, 

993, 407 S.E.2d 698, 700 (1991)). 

 The discretion afforded triers of fact to determine the 

credibility of witnesses, including experts, is broad but not 

without limits. Regarding experts, a fact finder is not required 

to accept the testimony of an expert witness merely because he or 

she was qualified as an expert. See McLane, 202 Va. at 205-06, 

116 S.E.2d at 281. In addition, some expert testimony is not 

admissible as evidence, including that which concerns matters of 

common knowledge, such as the veracity of witnesses and that 

which is speculative. See Coppola v. Commonwealth, 220 Va. 243, 

252, 257 S.E.2d 797, 803-04 (1979) (regarding matters within 

common knowledge); Gilbert v. Summers, 240 Va. 155, 160, 393 

S.E.2d 213, 215 (1990) (regarding speculative expert testimony). 

 However, as with all oral testimony, a fact finder may not 

arbitrarily disregard the uncontradicted testimony of an 

unimpeached expert witness whose testimony is neither inherently 

incredible nor inconsistent with facts in the record. See

Cheatham, 227 Va. at 4-5, 313 S.E.2d at 370; Spratley, 154 Va. at 

864, 152 S.E. at 865.1

 

 1 The majority relies on Bridgeman v. Commonwealth, 3 Va. 

App. 523, 528, 351 S.E.2d 598, 601 (1986), as authority to 

support its holding that "[i]t is well established that . . . it 

is within the fact finder's discretion to accept or reject any of 

the testimony offered." However, the text of Bridgeman does not 
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 B. 

 Applying these principles to this case, I would hold that 

the trial court erred when it concluded that husband's mental 

health did not change in the weeks following the entry of the 

trial court's awards of child and spousal support in May, 1995. 

Specifically, I would hold that the trial court erred when it 

arbitrarily disregarded the expert testimony of Ms. Zeidberg that 

husband's mental condition worsened during the summer months of 

1995. 

 Ms. Zeidberg was qualified as an expert "in children and 

adults with attention deficit disorder." She testified that she 

began counseling husband in January, 1993 and that she had "met 

with him 111 times for better than 140 hours of contact." She 

testified that ADD is an involuntary neurological disorder that 

expressly support this proposition and reading it to do so 

constitutes, in my opinion, an overbroad interpretation of its 

language. The cited portion of Bridgeman states: 

 The weight which should be given to evidence 

and whether the testimony of a witness is 

credible are questions which the fact finder 

must decide. 

Id. at 528, 351 S.E.2d at 601. This language, which is 

unsupported by citation to precedent, makes no reference to the 

line of cases beginning with Spratley in 1930 and concluding with 

Cheatham in 1984 that qualify a fact finder's discretion to 

determine the credibility of witnesses by prohibiting the 

arbitrary rejection of testimony. I do not believe that the 

panel of this Court that decided Bridgeman intended this language 

to expand the discretion of fact finders beyond the limits 

repeatedly set forth by our Supreme Court. Thus, I believe that 

an accurate interpretation of this language requires it to be 

read together with, and not contrary to, the Spratley line of 

cases. 
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impairs a person's ability to process information and may be 

exacerbated by stress. She testified that she had long suspected 

that husband suffered from ADD and that another physician had 

diagnosed him with both ADD and depression in mid-1995. She 

testified that she met with husband regularly during the two year 

period before the hearing on child and spousal support and that 

husband "seemed to get better." However, after May 18, 1995, the 

date of the trial court's ruling on these issues, she testified 

that husband's ADD became exacerbated. She testified that, while 

meeting with husband during this time, she observed that he was 

increasingly disorganized and unable to focus on the problems 

affecting his business. 

 Nothing in the record supports a finding that Ms. Zeidberg's 

testimony was inherently incredible, impeached, or contradicted 

by other facts. First, Ms. Zeidberg's expert testimony regarding 

the change in husband's mental health was not inherently 

incredible. The record indicates that it was based on both an 

accurate understanding of the relevant facts and on a reasonable 

probability. See Gilbert, 240 Va. at 160, 393 S.E.2d at 215 

(stating that an expert's opinion possesses evidential value only 

if it is not speculative, i.e., if it is "based upon facts within 

[the expert's] knowledge or established by other evidence"); 

Clinchfield Coal Co. v. Bowman, 229 Va. 249, 252, 329 S.E.2d 15, 

16 (1985) (holding that a doctor's medical opinion was not 

credible evidence because it was based upon a faulty premise); 

Spruill v. Commonwealth, 221 Va. 475, 479, 271 S.E.2d 419, 421 
- 17 - 

(1980) (stating that a medical opinion is speculative if based on 

a "possibility" and admissible if based on a "reasonable 

probability"). Ms. Zeidberg's testimony established that her 

opinion was based upon both her expert knowledge of adults 

suffering from ADD and her extensive knowledge of husband's case, 

which she gleaned from meeting with husband regularly over a two 

and one-half year period. In addition, the manner in which she 

expressed her opinion indicated that it was based on a reasonable 

probability and not a mere possibility. 

 In addition, Ms. Zeidberg's testimony was unimpeached and 

uncontradicted by other evidence in the record. During his 

cross-examination of Ms. Zeidberg, wife's counsel did not offer 

evidence that established that Ms. Zeidberg had either a bad 

character for veracity or a bias in favor of husband or against 

wife. Wife's counsel introduced no prior statements by Ms. 

Zeidberg that were inconsistent with her direct testimony. At 

the conclusion of husband's case-in-chief, wife's counsel 

declined to offer any evidence that conflicted with Ms. 

Zeidberg's account of husband's deteriorating mental condition. 

In addition, Ms. Zeidberg's testimony was consistent with the 

other evidence offered by husband. In particular, the testimony 

of Dr. Dixon, who also testified on husband's behalf, did not 

contradict Ms. Zeidberg's testimony about the change in husband's 

mental health. Dr. Dixon corroborated Ms. Zeidberg's testimony 

that husband suffered from ADD long before he was ordered to pay 

support. Dr. Dixon's testimony also indicated that she lacked 
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sufficient knowledge about husband's case to opine whether or not 

his ADD had worsened since May 18. 

 Because Ms. Zeidberg's testimony regarding the deterioration 

of husband's mental condition was unimpeached, uncontradicted, 

and not inherently incredible, I would hold that the trial court 

acted arbitrarily when it disregarded her testimony and concluded 

that husband's mental health had not changed since the entry of 

its support order. See Hodge, 213 Va. at 32, 189 S.E.2d at 353 

(holding that the trial court's "mere belief or speculation" that 

husband was lying was not sufficient to disregard his 

uncontradicted, credible testimony that he did not provoke his 

wife to shoot him); see also Cheatham, 227 Va. at 4-5, 313 S.E.2d 

at 370. I would remand this case to the trial court for 

proceedings to determine whether the change in husband's mental 

health warrants the modification of his support obligations. 

 For the foregoing reasons, I dissent.