                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia


KRISHAN RANA
                                         MEMORANDUM OPINION * BY
v.   Record No. 1808-99-2              JUDGE JAMES W. BENTON, JR.
                                              APRIL 11, 2000
SHAKUNTLA RANA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                    William R. Shelton, Judge

          Lawrence D. Diehl for appellant.

          Mary Burkey Owens (Ishnelia I. Gubb; Cowen &
          Owen, on brief), for appellee.



     Krishan Rana appeals the trial judge's denial of his motion

to modify spousal support paid to Shakuntla Rana, his former wife.

The husband contends the trial judge erred by failing to find (1)

that a material change in circumstances resulted from his

increased debt and the wife's lessened need for support, (2) that

the wife's employment following the divorce and subsequent

unemployment was a material change of circumstances, (3) that the

wife was voluntarily unemployed, and (4) that the evidence

contained sufficient proof to impute income to the wife.    Both

parties seek attorney's fees and costs for this appeal.    For the

reasons that follow, we affirm the trial judge's decision.

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                                 I.

     As the party seeking to modify spousal support, the husband

bore the burden "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); see also Code § 20-109.     "[T]he 'circumstances' which

make 'proper' an increase, reduction or cessation of spousal

support under Code § 20-109 are financial and economic ones."

Hollowell v. Hollowell, 6 Va. App. 417, 419, 369 S.E.2d 451,

452-53 (1988).   "We will not disturb the trial judge's decision

where it is based on an ore tenus hearing, unless it is 'plainly

wrong or without evidence to support it.'"    Furr v. Furr, 13 Va.

App. 479, 481, 413 S.E.2d 72, 73 (1992) (citation omitted).

                                II.

     The husband contends that several changes occurring after the

entry of the divorce decree were material changes in

circumstances.   The husband testified that his current expenses

greatly exceeded his expenses at the time of the divorce and that

he had a monthly deficit of $2,745.     The husband also testified

that he had almost no debt at the time of the divorce and now had

$50,000 in debt.   The husband presented evidence that wife's

current expenses were $2,326 and that her expenses at the time of

the divorce were $3,663.

     Although the husband testified that his spousal support

payments increased his debt, he admitted on cross-examination that

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his debts included attorney's fees and other costs.     The husband

also admitted that his claimed expenses included costs

attributable to his recently purchased new home and his current

spouse, who is not employed outside their home.     Although he

claimed as an expense a monthly payment of $400 to a retirement

account, he admitted that the payment was voluntary.     The husband

owns four pieces of rental property and testified at the hearing

that they produced no income.   An April 1999 loan application,

however, showed that he claimed $2,500 in monthly income from

those properties.    The husband also admitted that he overstated

several of the loan amounts he was obligated to repay.     The

evidence further proved that although the husband's income

increased from approximately $58,000 to $68,000, he had listed his

income as $62,458.

     The wife admitted that her monthly expenses had decreased

since the time of the divorce decree.      She received the marital

residence under the terms of the decree.      She testified, however,

that because the husband was continually late in paying spousal

support, she incurred late payments and additional interest on the

mortgage throughout 1997 and 1998.      Concerned that the lender

would foreclose on the property, the wife sold her home.     That

evidence was uncontested.   After the sale, the wife's housing

expenses decreased from $1,708 for a mortgage and $465 for

utilities to $510 for rent and $200 for utilities.



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        Husband contends that in addition to changes in their income

and expenses, the evidence proved the wife was voluntarily

unemployed.    The evidence established that the wife was not

employed at the time of the divorce but began working at a retail

store shortly after the decree was entered.    She testified that

she worked because she had no money for food when the husband's

payments were late.    She continued to work at the store for

approximately two and one-half years and earned $5.75 an hour.

Although the wife admitted that she could understand simple

English, she testified that language difficulties required her to

call her manager to resolve problems with customers.    At the time

of the hearing, however, the wife was not working and had not

worked since she relocated to Blacksburg in December 1998

following the sale of her home.

        The wife's evidence also established that because husband

refused to allow her to drive during the marriage, she cannot

drive and must rely upon public transportation or her sons.      After

she sold her house, she moved to Blacksburg to be near one of her

sons.    Although the husband's expert testified that wife was

immediately employable at $6.00 an hour in entry level positions,

he admitted that he had not considered wife's level of English

comprehension, the proximity of jobs to public transportation, or

that she could not apply for jobs until she replaced her green

card.



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                                III.

     The trial judge found that husband failed to prove "a

material change in circumstances which would warrant a reduction

in spousal support."   Although we agree with the husband that the

evidence proved changes in the parties' economic circumstances,

see Hollowell, 6 Va. App. at 419, 369 S.E.2d at 452, we cannot say

that the trial judge erred in finding that the changes did not

warrant a modification in support.

     "[W]hen a material change of circumstances has occurred, the

trial court must determine whether the changed circumstances

warrant or justify a change in the amount of support."    Blackburn

v. Michael, 30 Va. App. 95, 103, 515 S.E.2d 780, 784 (1999).   Not

every material change of circumstances warrants a modification of

support.   See id.

                The moving party in a petition for
           modification of support is required . . . to
           prove both a material change in
           circumstances and that such change justifies
           an alteration in the amount of support. A
           material change in circumstances, standing
           alone, does not provide a basis for the
           trial court to modify its support decree. A
           modification is appropriate only after the
           court has considered the material change in
           circumstances in relation to . . . the
           present circumstances of both parties
           . . . . Thus, in a petition for reduction
           of support, the trial court must assess
           whether the requested reduction, based on a
           material change in circumstances, is
           justified in light of the overall
           circumstances of both parties . . . .




                               - 5 -
Yohay v. Ryan, 4 Va. App. 559, 566, 359 S.E.2d 320, 324 (1987);

see also Furr, 13 Va. App. at 481, 413 S.E.2d at 73.

     The evidence proved that the husband's income had

increased; however, it raised doubt about the extent of the

husband's actual debts.   Indeed, the evidence concerning his

claim of increased expenses was highly problematic.

Furthermore, the evidence proved that as a result of the

husband's tardy payment of spousal support, the wife's

circumstances drastically changed.      She testified that she had

to work in order to buy food and that she had to sell her home

to avoid foreclosure.   The trial judge could have found that the

wife's move to Blacksburg was a consequence of this disruption

and of her need to be in a place where she could rely upon her

son for her transportation needs.

     Furthermore, the evidence would support a finding that the

wife's initial employment was caused by the need to have income

when the husband's payments were tardy and that her subsequent

unemployment was not voluntary.   "Whether a person is voluntarily

unemployed or underemployed is a factual determination."

Blackburn, 30 Va. App. at 102, 515 S.E.2d at 784.

     Based upon the evidence in the record, we find no error in

the trial judge's finding that the husband failed to prove "a

material change in circumstances which would warrant a reduction

in spousal support."    In view of the failure of the evidence to



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prove the wife was voluntarily unemployed, we need not address

the issue of imputation of income.

                                  IV.

     Both the husband and the wife request attorney's fees and

costs incurred in this appeal.     See O'Loughlin v. O'Loughlin, 23

Va. App. 690, 695, 479 S.E.2d 98, 100 (1996).    We deny both

requests.

     Accordingly, we affirm the trial judge's decision.

                                                          Affirmed.




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