                   COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judges Annunziata and
          Humphreys
Argued at Alexandria, Virginia


JOHN DAVID PELLEGRIN
                                          MEMORANDUM OPINION * BY
v.   Record No. 0209-01-4               JUDGE ROSEMARIE ANNUNZIATA
                                             JANUARY 29, 2002
DIANE LYNN BINGMAN PELLEGRIN (RAMEE)


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      Leslie M. Alden, Judge

           John D. Pellegrin, pro se.

           David M. Levy (Surovell, Jackson, Colten &
           Dugan, P.C., on brief), for appellee.


     John D. Pellegrin (appellant) (Pellegrin) appeals the trial

court's dismissal of his petition to terminate or modify spousal

support on the grounds that the trial court improperly

considered certain evidence and improperly declined to impute

income to Diane L.B. Pellegrin Ramee (appellee) (Ramee).

Pellegrin also appeals the trial court's award of attorney's

fees to Ramee.   For the reasons that follow, we affirm and

remand for a determination of appellate attorney's fees.




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

                              Background

     On appeal, we view the evidence and all reasonable

inferences that flow from it in the light most favorable to

Ramee, the party prevailing below.     Calvin v. Calvin, 31 Va.

App. 181, 183, 522 S.E.2d 376, 377 (1999).    Pellegrin and Ramee

were divorced on March 5, 1991, by a final decree affirming,

ratifying, and incorporating the parties' Property Custody and

Support Settlement Agreement (PSA).    The PSA provided that

Pellegrin's support obligation would be reduced as Ramee's

income from employment increased.

     On April 30, 1998, appellant filed a petition in the

Circuit Court of Fairfax County to terminate spousal support and

maintenance.   He contended that Ramee, who had a Master's in

Education and Counseling Development, was voluntarily foregoing

gainful employment and, therefore, not entitled to support

according to the PSA.   He presented the testimony of Thomas W.

Minnick, an expert in the field of mental health counseling

employment.    The trial court, however, found that the PSA did

not require Ramee to seek employment, and Pellegrin appealed.

     On appeal, we held that the PSA "established an implied

contractual duty upon [Ramee] to make a reasonable effort to

seek employment."    Pellegrin v. Pellegrin, 31 Va. App. 753, 761,

525 S.E.2d 611, 615 (2000).    Finding the trial court erred in

concluding that no such duty arose from the terms of the
                             - 2 -
contract, we remanded the matter "for further proceedings based

on the evidence presented."   Id.

     On remand, over Pellegrin's objection, the trial court

permitted Ramee to testify regarding her efforts to secure

employment.   Ramee stated that she received employment

counseling and followed a plan to secure employment, which

included applications to more than two dozen employers.   She

noted after she completed her Master's in Education and

Counseling Development in December 1997, she had difficulty

finding a job because she lacked clinical experience.

Therefore, in January 1998, she obtained an unpaid externship at

the Prince William County Community Services Board where she

obtained clinical experience hours and eventually secured a

paying position in January 1999.

     Minnick testified that Ramee was readily employable and

could earn in excess of $50,000 per year.   He also noted that,

at the time Ramee was looking for employment, he personally

would not have hired her as a substance abuse counselor because

she lacked clinical experience of at least one year.

     From this evidence, the trial court determined Pellegrin

failed to prove Ramee had not made reasonable efforts to gain

employment, and it declined to impute income to her.

     On May 15, 1998, the trial court heard Ramee's petition for

a rule to show cause.   The trial court found Pellegrin in

contempt for failure to make support payments, but suspended
                             - 3 -
this finding on the condition that Pellegrin resume spousal

support payments.   Pellegrin failed to meet this condition.      On

November 9, 1999, the trial court stayed the matter so that

Pellegrin's then pending bankruptcy proceeding in U.S.

Bankruptcy Court could be resolved.      After the bankruptcy

proceeding was resolved, another hearing on the rule to show

cause was held on December 7, 2000, in conjunction with the

remand hearing.

     At the December 7 hearing, the trial court found Pellegrin

in contempt for failure to pay spousal support resulting in

arrearages of $42,773.96, plus interest in the amount of

$5,846.11.    The court advised Pellegrin that he could purge

himself of contempt by presenting a plan for payment of the

arrearages.   On December 22, 2000, Pellegrin proposed that he

pay $300 per month.   The court rejected this plan as

unreasonable because it would require 13.6 years to pay the

debt, without including interest.      After a two-hour stay in

detention, Pellegrin presented a second plan to pay Ramee $1,000

per month and give her four initialed Tiffany light shades, to

be credited towards his outstanding arrearages.     The court

accepted the plan, and Ramee agreed to it.

                                 II.

                              Analysis

     Pellegrin contends that the trial court erred by: (1)

permitting Ramee to present additional evidence on remand; (2)
                             - 4 -
refusing to impute income to Ramee; (3) awarding Ramee

attorney's fees for successfully enforcing the terms of the PSA;

(4) finding him in contempt despite evidence of his inability to

pay support; and (5) unconstitutionally incarcerating him.       We

find each of these contentions to be without merit.

                 A.   Admission of additional evidence

     It is well settled that a decision "'to hear additional

evidence is within the sound discretion of the trial court.'"

Calvin, 31 Va. App. at 184, 522 S.E.2d at 378 (quoting Rowe v.

Rowe, 24 Va. App. 123, 144, 480 S.E.2d 760, 770 (1997)); Morris

v. Morris, 3 Va. App. 303, 307, 349 S.E.2d 661, 663 (1986).          The

trial court's ruling at the first hearing was based on a legal

interpretation of the PSA and not on the evidence heard.       We

reversed the court's decision, holding that the PSA "established

an implied contractual duty upon [Ramee] to make a reasonable

effort to seek employment," and we remanded the matter "for

further proceedings based on the evidence presented."

Pellegrin, 31 Va. App. at 761, 525 S.E.2d at 615.        The trial

judge found that this directive did not preclude the

presentation of additional evidence, explaining, "I only heard

half the case.    And . . . in light of the posture in which the

case ended here, I just do not see how I can rule without taking

further evidence today."     The record supports this finding.

Ramee did not present evidence of her employment search at the

first hearing because the court had granted her motion to
                             - 5 -
strike.   Additional evidence was therefore necessary to dispose

of the issue before the court on remand.

                     B.   Imputation of Income

     The trial court found that Pellegrin had not met his burden

of proving that Ramee was foregoing gainful employment and,

therefore, declined to impute income to her.     Such a "refusal to

impute income will not be reversed unless plainly wrong or

unsupported by the evidence."   Blackburn v. Michael, 30 Va. App.

95, 102, 515 S.E.2d 780, 784 (1999).   Furthermore, "[t]he burden

is on the party seeking imputation to prove that the other

[party] was voluntarily foregoing more gainful employment,

either by producing evidence of a higher-paying former job or by

showing that more lucrative work was currently available."

Niemiec v. Dep't of Soc. Servs., 27 Va. App. 446, 451, 499

S.E.2d 576, 579 (1998) (citations omitted).

     In this case, Pellegrin did not present evidence of a

higher-paying former job.   Instead, he sought to prove that

Ramee's unemployment was voluntary because more lucrative work

was available.   His expert, Minnick, testified that because the

market for mental health counselors was strong, Ramee was

readily employable and could earn in excess of $50,000 per year.

This abstract statement is insufficient to demonstrate voluntary

unemployment.

     Moreover, the evidence in the case is contrary to Minnick's

conclusion that Ramee was readily employable and supports the
                             - 6 -
trial court's ruling that Ramee was not voluntarily unemployed.

The trial court found that, at the time Ramee sought employment,

one year of clinical experience, which she did not have, was the

minimum for hiring a mental health counselor with a master's

degree.   Ramee testified and presented records indicating that

she actively sought employment as a substance abuse counselor

but was unsuccessful because she lacked clinical experience.

She noted that potential employers specifically told her that

she needed more experience and that most job listings in the

field required one year of experience.   Indeed, Minnick,

himself, stated that he personally would not have hired Ramee as

a substance abuse counselor because she did not have a year of

clinical experience.

     Finally, we note that the trial court discounted Minnick's

expertise on the issue, noting that "he is not a headhunter in

this area.   His specialty is not placing people in this area.

He is not a rehabilitation expert . . . ."   See Street v.

Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en

banc) (noting that the trier of fact "has the discretion to

accept or reject any of the witness' testimony").   In short,

credible evidence in the record supports the trial court's

resolution of this issue.   See Barnes v. Wise Fashions, 16 Va.

App. 108, 111, 428 S.E.2d 301, 303 (1993) (trial court may

resolve any apparent conflicts in the testimony of an expert).


                             - 7 -
     Because the record does not demonstrate that Ramee was, in

fact, qualified for the jobs Pellegrin alleged were available,

Pellegrin has failed to carry his burden of demonstrating that

Ramee was voluntarily unemployed.    Niemiec, 27 Va. App. at 453,

499 S.E.2d at 580 (holding that mother was not voluntarily

unemployed where party seeking to impute income "did not

establish that [employment] positions were available" to her or

"that she failed to market herself adequately").

                           C.    Contempt

     Pellegrin contends that the trial court erred in holding

him in contempt.   Specifically, he argues that the court's

finding of voluntary underemployment is unsupported by the

evidence and that the trial court improperly rejected his

initial proposed payment plan.    We disagree.

     "A trial court may hold a support obligor in contempt for

failure to pay where such failure is based on unwillingness, not

inability, to pay."   Barnhill v. Brooks, 15 Va. App. 696, 704,

427 S.E.2d 209, 215 (1993).     The moving party must demonstrate

that the offending party failed to comply with an order of the

court.   Alexander v. Alexander, 12 Va. App. 691, 696, 406 S.E.2d

666, 669 (1991) (citing Frazier v. Commonwealth, 3 Va. App. 84,

87, 348 S.E.2d 405, 407 (1986)).    "The offending party then has

the burden of proving justification for his or her failure to

comply."   Id. (citing Frazier, 3 Va. App. at 87, 348 S.E.2d at

407); see Laing v. Commonwealth, 202 Va. 511, 514, 137 S.E.2d
                             - 8 -
896, 899 (1964) ("[T]he inability of an alleged contemner,

without fault on his part, to tender obedience to an order of

court, is a good defense to a charge of contempt."); Barnhill,

15 Va. App. at 704, 427 S.E.2d at 215.

     Where a court issues a judgment of contempt, "'its finding

is presumed correct and will not be reversed unless plainly

wrong or without evidence to support it.'"    Glanz v. Mendelson,

34 Va. App. 141, 148, 538 S.E.2d 348, 351 (2000) (quoting Brown

v. Commonwealth, 26 Va. App. 758, 762, 497 S.E.2d 147, 149

(1998)).   When reviewing the sufficiency of the evidence

supporting a finding of contempt, we view the evidence in the

light most favorable to the party prevailing below.   See id.

     Pellegrin failed to carry his burden of demonstrating his

inability to pay the court-ordered support.   At the time of the

hearing, Pellegrin was an attorney with nearly 30 years of

experience and with his own private practice.   Pellegrin's

profit and loss statement showed repayment of $25,000 in loans

and personal credit card debt by his law firm in 1999 and

$45,000 in 2000.   In addition, he and his wife were active

members of Springfield Golf and Country Club.   In light of this

evidence of ability to pay, the trial court did not credit

Pellegrin's claim that he earns only $10,000 per year from his

law firm and that he has diligently sought other employment.

See Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d

730, 732 (1995) ("The credibility of the witnesses and the
                             - 9 -
weight accorded the evidence are matters solely for the fact

finder who has the opportunity to see and hear that evidence as

it is presented.").   Accordingly, the court determined that his

underemployment was voluntary and held him in contempt and

rejected his plan to pay Ramee only $300 per month.    It later

accepted his plan to pay $1,000 per month and turn over four

Tiffany lamp shades to Ramee, as payment towards his arrearages.

We find that the record supports the trial court's finding of

voluntary underemployment and its order.

                         D.   Attorney's Fees

     Pellegrin also contends that we should:     (1) vacate the

trial court's award of $5,000 in attorney's fees from the first

hearing; and (2) reverse the trial court's award of fees in

connection with the remand hearing.     As we have noted in earlier

appeals by Pellegrin, the first issue is barred by res judicata

because we have previously ruled to the contrary.    See

Pellegrin, 31 Va. App. at 768, 525 S.E.2d at 618.

     The second claim is governed by the terms of the PSA, which

provides:

            The parties agree that any expenses,
            including but not limited to, counsel fees,
            court costs, and travel, incurred by a party
            in the successful enforcement of any of the
            provisions of this Agreement . . . shall be
            borne by the defaulting party. Any such
            costs incurred by a party in the successful
            defense to . . . any such provisions shall
            be borne by the party seeking [enforcement].


                               - 10 -
     At the remand hearing, the trial court awarded Ramee $2,500

in attorney's fees.   Because wife successfully defended against

Pellegrin's attempt to enforce the provisions of the PSA

requiring imputation of income, see id. at 759-61, 525 S.E.2d at

613-15, we affirm this award.    Cf. id. at 768, 525 S.E.2d at

618. (affirming award of attorney's fees because wife's "actions

for which attorney's fees were awarded involved the successful

enforcement of the PSA," in accordance with the PSA's provision

governing such awards).     Also pursuant to the PSA and, as

requested by Ramee on appeal, we remand to the trial court to

assess and award appropriate appellate attorney's fees to Ramee

incurred by her in the appellate case presently before us.     See

O'Loughlin v. O'Loughlin, 23 Va. App. 690, 694, 479 S.E.2d 98,

100 (1996) (finding that trial court may award attorney's fees

incurred on appeal with a specific remand and particularized

instructions to do so). 1

     1
       Although Ramee requested appellate attorney's fees in
conjunction with the prior appeal, we did not award her
appellate fees and did not direct the trial court to do so. See
generally Pellegrin, 31 Va. App. 753, 525 S.E.2d 611. She now
requests that we direct the trial court to consider an award of
attorney's fees incurred in conjunction with that appeal on the
ground that the present appeal is "a continuation of the earlier
matter." However, she cites no authority in support of this
proposition, and we have found none. Therefore, because "the
judgment in the former action [was] rendered on the merits by a
court of competent jurisdiction," res judicata bars our
reconsideration. Simmons v. Commonwealth, 252 Va. 118, 120, 475
S.E.2d 806, 807 (1996); see also Highsmith v. Commonwealth, 25
Va. App. 434, 440, 489 S.E.2d 239, 241 (1997) (noting that a
court's constructive determination of an issue sufficiently

                               - 11 -
     For the foregoing reasons, the judgment of the trial court

is affirmed, and the matter is remanded solely for consideration

of an award of attorney's fees consistent with this opinion.

                                           Affirmed and remanded.




constitutes determination "on the merits" in the context of res
judicata (citation omitted)).
                            - 12 -
