COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Annunziata and Humphreys 

Argued at Alexandria, Virginia 

GLEN S. SINES 

 MEMORANDUM OPINION* BY 

v. Record No. 0233-01-4 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 JANUARY 29, 2002 

KATHERINE S. SINES 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

R. Terrence Ney, Judge 

 Carl P. Horton for appellant. 

 (Dana James Carlson; Hale, Hassan, Carlson & 

Penn, P.L.C., on brief), for appellee. 

 Glen Sines (husband) appeals the trial court's decision 

denying his request for modification of his child support 

payment to Katherine S. Sines (wife). He contends that (1) the 

trial court erred in using the June 18, 1999 consent decree as 

the date to measure the requisite change of circumstances and 

(2) it was an abuse of discretion to grant wife's motion to 

strike for husband's failure to prove a material change of 

circumstances warranting a reduction in support. Finding no 

error, we affirm.1

 

* Pursuant to Code § 17.1-413, recodifying Code 

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

1

 Husband lists six questions presented, but they are 

subsumed in those listed. 
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I. BACKGROUND 

 "On review, we consider the evidence in the light most 

favorable to the party prevailing in the trial court." 

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

31 (1989). 

 So viewed, the evidence established that on January 31, 

1996, the parties entered into an agreed support order that 

required husband to pay for the parties' two children "One 

Thousand Dollars ($1,000.00) per month, beginning January 7, 

1996, and to be paid on the 7th day of each month thereafter 

until each child attains the age of eighteen (18), dies, marries 

or otherwise becomes emancipated." On June 18, 1999, the trial 

court entered a new consent order which stated in paragraph six 

that, "Neither party shall seek a modification of support based 

upon the change in [sic] current visitation schedule to the 

proposed schedule, except as for the actual child care 

expenses." On August 1, 2000, husband filed a motion to reduce 

the child support payments on the ground that a change of 

circumstances had occurred since entry of the June 18, 1999 

consent decree. 

On December 7, 2000, the trial court heard appellant's 

motion to reduce child support. As the basis for his request to 

reduce his support, husband argued that there had been an 

increase in wife's income, a reduction in her child care 

expenses, and an increase in his child care expenses because of 
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his increased time with the children. Husband in his request 

for modification, as well as at the hearing, used the June 18, 

1999 consent order as the benchmark to determine a change of 

circumstances. 

The trial court noted that the consent order entered into 

by the parties barred husband's current argument that a change 

in husband's time with the children could be used as a basis for 

a change in child support. The court stated "[i]f Mr. Sines can 

testify to an increase in child care expenses since June 18, 

1999, I’ll permit him to do so; but it has got to be a specific 

item . . . ." The court then specified, "[i]t has got to be 

employment-related child care expenses." Husband responded that 

he "has none." 

Wife, who was called as husband's first witness, testified 

that after the June 18, 1999 consent order, she worked part time 

as a waitress in addition to her employment at Dudley Martin 

Chevrolet where she received a $1.06 per hour raise and $540 in 

overtime. She projected her salary as a waitress to be 

approximately $3,300 per year. Wife stated that her mother, who 

took the children to school, had mechanical problems with her 

car which required wife to purchase a truck for her mother so 

that the children would have a reliable source of transportation 

to and from school. The monthly payment on the truck was $289 

per month. The evidence established that husband's income had 
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increased at a rate greater than wife's and that his day-care 

obligations had not increased. 

The trial court found that husband failed to prove the 

material change in circumstances necessary to allow modification 

of child support and granted wife's motion to strike. The trial 

court's finding was "based upon the circumstances having changed 

since June of 1999." Using that benchmark date and looking at 

the evidence presented, the court commented that, "not any 

single one of the points, shows that the burden has been met to 

show that a change of circumstances has been warranted." The 

judge stated that "Mr. Sines recognizes that the benchmark for 

examining the change of income is from June of 1999." The court 

found that husband had no child care expenses and that wife's 

purchase of the truck was not a gift and was a child care 

expense. Finally, using the June 18, 1999 date, the trial court 

found that the increase in wife's yearly income from $32,240 to 

$34,445 at Dudley Martin Chevrolet and the $3,300 from her job 

as a waitress "is not material." 

II. STANDARD OF REVIEW 

 "'The trial court's decision, when based upon an ore tenus

hearing, is entitled to great weight and will not be disturbed 

unless plainly wrong or without evidence to support it.'" Orlandi 

v. Orlandi, 23 Va. App. 21, 28, 473 S.E.2d 716, 719 (1996) 

(quoting Venable v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 

651 (1986)). 
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III. MOTION TO STRIKE APPELLANT'S CASE 

 "The standard under which a trial court 

should review the evidence adduced at trial 

before granting a motion to strike the case 

at the end of a plaintiff's evidence is well 

settled under prior decisions of this Court. 

That standard requires the trial court to 

accept as true all the evidence favorable to 

the plaintiff as well as any reasonable 

inference a jury might draw therefrom which 

would sustain the plaintiff's cause of 

action. The trial court is not to judge the 

weight and credibility of the evidence, and 

may not reject any inference from the 

evidence favorable to the plaintiff unless 

it would defy logic and common sense." 

Claycomb v. Didawick, 256 Va. 332, 335, 505 S.E.2d 202, 204 

(1998) (citation omitted). "In cases involving a consent decree 

agreeing to child support or a property settlement agreement 

providing for child support, the court's continuing authority to 

modify child support may be exercised only upon a showing of a 

material change in circumstances." Orlandi, 23 Va. App. at 26, 

473 S.E.2d at 718-19 (emphasis added). "'[I]n order to entertain 

a petition to increase, decrease, or terminate child support, [a 

trial court must] . . . make a threshold finding that a material 

change of circumstance has occurred since the last award or 

hearing to modify support.'" Id. at 28, 473 S.E.2d at 719-20 

(quoting Hiner v. Hadeed, 15 Va. App. 575, 579, 425 S.E.2d 811, 

814 (1993)). "[W]here no material change in circumstance has 

occurred since the last modification hearing in which the support 

guidelines presumably had been considered, the principles of res

judicata bar the trial judge from reconsidering the child support 
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award." Hiner, 15 Va. App. at 577, 425 S.E.2d at 812. Hence, a 

material change of circumstance is "a condition precedent to the 

modification of child support." Head v. Head, 24 Va. App. 166, 

175, 480 S.E.2d 780, 785 (1997). "In a petition for modification 

of child support and spousal support, the burden is on the 

moving party to prove a material change in circumstances that 

warrants modification of support." Richardson v. Richardson, 31 

Va. App. 341, 347, 516 S.E.2d 726, 729 (1999). 

 Husband first contends that the trial court should have used 

the date of the initial support order, January 7, 1996, rather 

than June 18, 1999, the date of the most recent order to determine 

the time period for proof of a material change in circumstances. 

This argument is without merit, and husband cites no authority for 

this proposition. 

 In his motion to reduce child support, husband asserted 

that, "there has been a change in circumstances since entry of 

that [June 18, 1999] order . . . ." Further, he stipulated for 

the record that the June 18, 1999 date was the appropriate date 

to measure a change of circumstances when he said, "Judge, I did 

that," in response to the trial court's question about the date. 

"The [appellant] having agreed upon the 

action taken by the trial court, should not 

be allowed to assume an inconsistent 

position." Clark v. Commonwealth, 220 Va. 

201, 214, 257 S.E.2d 784, 792 (1979), cert.

denied, 444 U.S. 1049, 100 S. Ct. 741, 62 

L.Ed.2d 736 (1980). "No litigant . . . will 

be permitted to approbate and reprobate -- to 

invite error . . . and then to take advantage 
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of the situation created by his own wrong." 

Fisher v. Commonwealth, 236 Va. 403, 417, 374 

S.E.2d 46, 54 (1988), cert. denied, 490 U.S. 

1028, 109 S. Ct. 1766, 104 L.Ed.2d 201 

(1989). 

Manns v. Commonwealth, 13 Va. App. 677, 679-80, 414 S.E.2d 613, 

615 (1992). Thus, the evidence for a modification of husband's 

support obligations was properly measured from that date. 

 Husband next contends that the trial court erred in 

granting the motion to strike because the evidence as a matter 

of law proved a material change of circumstances. We disagree. 

Credible evidence supports the trial judge's findings that while 

there had been some change in income, it was not material. 

Although wife had an increase in salary, husband's salary had 

increased to a greater extent. The court found husband had no 

day-care expenses because "[h]e so testified under oath." The 

trial court further found that the purchase of the truck was not a 

gift and, thus, wife's child care expenses were not reduced. The 

trial court was not plainly wrong in its determination that no 

change of circumstances existed. 

 Next husband argues that the June 18, 1999 consent order 

violates the rule enunciated in Kelley v. Kelley, 248 Va. 295, 

449 S.E.2d 55 (1994), that parents cannot contract away their 
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children's right to support. This argument is barred by Rule 

5A:18 as it was not presented to the trial court.2 

IV. ATTORNEY'S FEES 

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

to the sound discretion of the trial court." Alphin v. Alphin, 15 

Va. App. 395, 406, 424 S.E.2d 572, 578 (1992). "The key to a 

proper award of fees is 'reasonableness under all of the 

circumstances revealed by the record.'" Ragsdale v. Ragsdale, 30 

Va. App. 283, 297, 516 S.E.2d 698, 705 (1999) (quoting Westbrook 

v. Westbrook, 5 Va. App. 446, 458, 364 S.E.2d 523, 530 (1988)). 

We find no abuse of discretion in the award of attorney's fees at 

trial as wife was the prevailing party and the record shows need 

and ability to pay. Wife has requested attorney's fees for 

matters relating to this appeal. Also, upon consideration of the 

entire record in this case, we hold that wife is entitled to a 

reasonable amount of additional attorney's fees, and we remand for 

an award of further costs and counsel fees incurred in this 

appeal. 

 2

 Husband also argues that the trial judge erred in failing 

to consider the presumptive amount of child support. The record 

shows that the trial court did consider the guidelines submitted 

by counsel; however, because appellant failed to show a material 

change of circumstances, no further action on the guidelines was 

necessary. 
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For the foregoing reasons, we affirm the trial court's grant 

of the motion to strike and remand for consideration of counsel 

fees on appeal. 

Affirmed and remanded.