COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Senior Judge Duff 

Argued at Richmond, Virginia 

COMMONWEALTH OF VIRGINIA, 

 DEPARTMENT OF SOCIAL SERVICES, 

 DIVISION OF CHILD SUPPORT ENFORCEMENT, 

ex rel., DARLENE BOWYER 

 MEMORANDUM OPINION* BY 

v. Record No. 0071-96-4 JUDGE ROSEMARIE ANNUNZIATA 

 APRIL 8, 1997 

DALE ROBERT BOWYER 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Benjamin N. A. Kendrick, Judge 

 William K. Wetzonis, Special Counsel (Nancy J. 

Crawford, Regional Special Counsel; Anne Wren 

Garrett, Special Counsel; James S. Gilmore, III, 

Attorney General; William H. Hurd, Deputy Attorney 

General; Robert B. Cousins, Jr., Senior Assistant 

Attorney General; Craig M. Burshem, Regional 

Special Counsel, on briefs), for appellant. 

 (Patricia L. Ruble, on brief), for appellee. 

 Darlene Bowyer and the Virginia Department of Social 

Services (collectively referred to as mother) appeal the trial 

court's order granting Dale Bowyer (father) a temporary abatement 

of his child support obligation. Mother contends that father 

bore the risk of success in his change from salaried employment 

to self-employment and that his resulting lack of income is an 

insufficient ground to reduce his support obligation. For the 

reasons that follow, we affirm the decision of the trial court. 

 

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

designated for publication. 
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 I. 

 A final decree of divorce entered in December 1994 required 

father to pay $1,200 per month to support the parties' minor 

child. In September 1995 father resigned from his employment of 

seventeen years at Arlington Heating and Air Conditioning. 

Father testified he resigned because of medical problems, which 

the court found to be "life-threatening." Specifically, father 

cited migraine headaches, high blood pressure and the stress of 

the commute from his home in Hume, Virginia to job sites in 

Northern Virginia, Maryland and the District of Columbia. He 

further testified that his former employer "was going more 

toward" installation projects that he could not perform due to 

back and neck problems. 

 In October 1995, father petitioned the court for a temporary 

termination or reduction in child support. He had recently 

started his own heating and air conditioning company and, at the 

time of the hearing, had earned no income from his business. 

Mother testified that father had earned an annual salary of 

$50,000 at Arlington Heating and Air Conditioning. Without 

calculating the presumptive guideline amount based on the 

financial information before it, the court granted father a 

four-month abatement of child support "due to [his] medical 

problems." 

 II. 

 The trial court's decision not to impute income to father 
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will be upheld on appeal unless it is "plainly wrong or 

unsupported by the evidence." Bennett v. DCSE ex rel. Bennett, 

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

 "'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.'" It is well 

established that the credibility of witnesses 

and the weight accorded to their testimony 

are matters solely within the purview of the 

trial court, and its findings will be 

reversed on appeal only if "plainly wrong or 

without evidence to support them." 

Brooks v. Rogers, 18 Va. App. 585, 587, 445 S.E.2d 725, 726 

(1994) (citations omitted). 

 Mother first complains that the trial court erred in failing 

to calculate the presumptive guideline amount of support based on 

the parties' income at the time of the hearing. Indeed, the 

general rule is well settled: once the court finds a material 

change in circumstances, "[t]he starting point . . . for 

determining the child support obligation of a party . . . is to 

compute the presumptive amount [under the guidelines]." 

Watkinson v. Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 473 

(1991) (emphasis added). 

 In the present case, however, there was no determination of 

child support to be made. Father sought and received a total 

abatement of support for four months. Nonetheless, even 

assuming, without deciding, that the court was obligated to 
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compute the presumptive amount of support before determining 

whether to abate father's obligation, we find any error of the 

trial court in failing to do so to be harmless under the facts of 

this case. Here, the evidence was undisputed that father's 

current income was zero. Had the court applied the guidelines, 

the presumptive amount of support owed by father would have been 

zero as well. See Code § 20-108.2(G)(1). 

 Mother next complains that the trial court erred in refusing 

to impute income to father.1

 She argues that father bore the 

risk of success in voluntarily deciding to change from salaried 

employment to self-employment and that his resulting lack of 

income is an insufficient ground to reduce his support 

obligation. 

 "[A] party seeking a change in court-ordered child support 

has the burden to prove by a preponderance of the evidence a 

material change in circumstances justifying modification of the 

support requirement." Antonelli v. Antonelli, 242 Va. 152, 154, 

409 S.E.2d 117, 119 (1991). That party "must . . . show that his 

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

because of his neglect." DCSE ex rel. Ewing v. Ewing, 22 Va. 

App. 466, 470, 470 S.E.2d 608, 610 (1996) (citations omitted). 

"Thus, in order to prove a material change in circumstances that 

 

 1 Mother does not dispute that father established a 

material change in circumstances warranting a review of the 

support order. She contends the trial court should have deviated 

from the presumptive amount of support by imputing income to 

father. 
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justifies a reduction in support, a parent must establish that he 

is not voluntarily unemployed or voluntarily under employed." 

Id. (citations omitted). In Antonelli, the Supreme Court held 

that when the obligor parent "chose to pursue other employment, 

albeit a bona fide and reasonable business undertaking," he bore 

the risk of his success at his new job, not the children. 242 

Va. at 156, 409 S.E.2d at 119-20. "Thus, `the risk of reduction 

in income as a result of a parent's intentional act, even if done 

in good faith, is insufficient grounds for reducing the amount of 

support due under a pre-existing order.'" Ewing, 22 Va. App. at 

471, 470 S.E.2d at 610 (quoting Hamel v. Hamel, 18 Va. App. 10, 

13, 441 S.E.2d 221, 222 (1994)). 

 Unlike the imputation of income cases upon which mother 

relies, the court in the present case found that father's 

decision to resign from his salaried position was not the result 

of a voluntary choice, but rather was the result of 

"life-threatening" medical problems. Mother does not contend 

that leaving a job due to "life-threatening" medical problems is 

a voluntary choice. Instead, she argues that the court erred in 

basing its finding on father's "unsubstantiated" medical 

complaints. However, mother cites no authority to support the 

proposition that the court's reliance on father's testimony alone 

was insufficient to support its finding. Indeed, father made a 

prima facie case that went unrebutted. 

 Finally, mother argues that father should have taken another 
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salaried job rather than becoming self-employed. However, mother 

bore the burden to produce evidence sufficient to "enable the 

trial judge reasonably to project what amount could be 

anticipated" had father procured other employment. Bennett, 22 

Va. App. at 693, 472 S.E.2d at 672-73 (citations omitted). 

Mother introduced no evidence concerning father's earnings at his 

new business; she did not present evidence to demonstrate that 

father was negligent in failing to profit from his new business 

or that he ignored other available and suitable employment 

opportunities. 

 In light of the evidence that father was involuntarily 

underemployed, earning no income, the court's refusal to impute 

income was not erroneous. 

 The decision of the trial court is accordingly affirmed. 

Affirmed.