                    COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Lemons
Argued at Alexandria, Virginia

NOMI TASLITT
                                           MEMORANDUM OPINION * BY
v.   Record No. 2724-98-4                   JUDGE LARRY G. ELDER
                                               DECEMBER 7, 1999
CRAIG E. O'CONNOR


               FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      Kathleen H. MacKay, Judge

          Stephen G. Cochran (Karen P. Power; The
          Jefferson Law Firm, P.L.C., on brief), for
          appellant.

          Alan B. Plevy (Smolen & Plevy, P.C., on
          brief), for appellee.


     Nomi Taslitt (wife) appeals from the decision of the

Fairfax County Circuit Court determining the obligation of

Craig E. O'Connor (husband) for child support and his

entitlement to spousal support.    On appeal, wife contends the

court erroneously failed to include in husband's gross income

various sums, including amounts received from his mother and

from the corporation of which he is the sole owner.

Specifically, she argues that the court erroneously (1)

classified certain sums as loans to the corporation rather than

as gifts to him; (2) shifted to her the burden of proving the

"reasonable business expenses" to be deducted from gross


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
corporate revenue; and (3) refused to include in husband's gross

income amounts he received from the corporation as loan

repayments and amounts he withdrew from corporate receipts to

pay his personal expenses.   She also seeks an award of

attorney's fees and costs on appeal.     We hold that, once wife

offered evidence of husband's gross corporate revenue, husband

bore the burden of establishing reasonable business expenses to

be deducted from that revenue.    However, we hold that husband

met that burden and that the trial court did not abuse its

discretion in calculating the challenged spousal and child

support obligations.   Therefore, we affirm the trial court's

decision.

     "Decisions concerning both [spousal and child] support rest

within the sound discretion of the trial court and will not be

reversed on appeal unless plainly wrong or unsupported by the

evidence."   Calvert v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d

875, 876 (1994).   "The trial court's decision, when based upon

credibility determinations made during an ore tenus hearing, is

owed great weight and will not be disturbed unless plainly wrong

or without evidence to support it."      Douglas v. Hammett, 28 Va.

App. 517, 525, 507 S.E.2d 98, 102 (1998).     In computing a

party's gross income from which child support obligations are

calculated, Code § 20-108.2(C) requires the inclusion of "all

income from all sources."    Such income includes salaries and

gifts but "shall be subject to deduction of reasonable business

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expenses for persons with income from self-employment, a

partnership, or a closely held business."    Code § 20-108.2(C).

A court determining spousal support also shall consider all

income of the parties.   See Code § 20-107.1 ("If the court

determines that an award [of spousal support] should be made, it

shall, in determining the amount, consider . . . [t]he earning

capacity, obligations, needs and financial resources of the

parties, including but not limited to income from all pension,

profit sharing or retirement plans, of whatever nature

. . . .").

     We conclude, based on the evidence in the record, that the

trial court did not abuse its discretion in determining

husband's gross income for purposes of calculating spousal and

child support.   No evidence in the record compels a conclusion

that husband's income was higher than the $1,448 per month he

reported receiving in salary from the corporation and the

$37,093 he received from mother in 1997, which the trial court

found to be a gift properly includable in his gross income.

These sums support the $54,468 annual income figure which the

trial court calculated for husband.    Rather than using wife's

figures for the total funds deposited in 1996 and 1997 into

accounts to which husband had access, figures wife agreed may

not have accurately represented his income, the trial court

expressly considered husband's corporate income and expense

statements for January through April 1998.   Those statements

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reflect an average monthly sum to which husband had access of

$1,362.81, which is lower than the monthly income figure of

$1,448 that husband reported on his personal income and expense

statement.

     Wife contends the trial court abused its discretion in

failing to include in husband's gross income $22,000 husband

received from accounts he held jointly with his mother, which

wife contends was given with no expectation of repayment.     We

disagree.    Whether the payments were loans or gifts was a

question within the discretion of the trial court to resolve

based on its perception of the credibility of the witnesses.

See Douglas, 28 Va. App. at 525, 507 S.E.2d at 102.    Husband

offered evidence that the payments were loans, and it was within

the discretion of the trial court to accept this testimony.

That husband was not required to pay interest on the loans, made

no repayments of principal, and had no notes memorializing the

loans is not dispositive.   In wife's favor, the trial court

ruled that husband received an additional $37,093 from mother in

1997 and that this sum, part of which went directly to pay his

expenses, constituted a gift properly includable in his gross

income.   We hold the trial court did not abuse its discretion in

holding that the $22,000 in payments to the corporation

constituted loans.

     Wife also contends the trial court abused its discretion by

disregarding her evidence that, in both 1996 and 1997, more than

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$300,000 was deposited into bank accounts husband owned or

controlled.   She argues that the trial court erred by, in

effect, placing the burden on her to prove the amount of

"reasonable business expenses" to be deducted from this figure.

     We agree with wife that husband, as the sole Buggie Barn

shareholder, bore the burden of establishing reasonable business

expenses to be deducted from gross corporate income figures for

purposes of calculating his gross income.    See Code

§ 20-108.2(C); see also Code § 20-107.1.    However, we disagree

with wife's argument that the trial court improperly shifted

this burden to her.   As set out above, the trial court expressly

considered husband's corporate income and expense statements for

January through April 1998.   The trial court, in its role of

assessing witness credibility, was entitled to believe husband's

evidence of income and expenses for this period of time, despite

wife's claim of an absence of sufficient underlying

documentation, and to extrapolate from this evidence husband's

income for the years 1996 and 1997.

     Extrapolation from 1998 gross corporate revenue supports

the conclusion that husband's 1996 and 1997 gross corporate

revenue yielded similar net income for husband in 1996 and 1997.

First, although wife claimed husband had access to over $300,000

deposited into his bank accounts in each of the years 1996 and

1997, the bank accounts wife examined to arrive at these figures

included accounts on which husband's mother also was a

                               - 5 -
signatory.   In holding that the sums husband received from these

accounts in 1997 were loans and gifts from mother, the trial

court implicitly found that the accounts belonged to mother and

that deposits could not properly be categorized as income to

husband.    Such findings were within the court's discretion.

Wife conceded at oral argument before this Court that

subtraction of the amounts deposited into the accounts on which

husband was merely a signatory and subtraction of the amounts

classified as loans to husband or the corporation would result

in gross income to husband of approximately $150,000 in 1996 and

$200,000 in 1997.   Extrapolating from gross corporate revenue of

$49,935.76 for the first four months of 1998, anticipated gross

corporate revenue for all of 1998 would be approximately

$150,000.    Therefore, the evidence of corporate income for 1996,

1997 and a portion of 1998 supports the trial court's finding

that, for purposes of calculating spousal and child support,

husband's average monthly income from the corporation was

$1,448, as he represented on his income and expense statement.

     Finally, wife contends the trial court erroneously failed

to include in its calculation of husband's gross income money he

received from the corporation in 1996 in the form of loan

repayments and money he withdrew from corporate receipts that

same year in order to pay personal expenses.   Again, we

disagree.    In calculating husband's income received from the

corporation, the trial court relied on income and expense

                                - 6 -
figures from 1998, which purportedly showed all payments to and

withdrawals by husband during that period of time, regardless of

their characterization.    Based on deficiencies in the evidence

regarding corporate expenses for previous years, the trial court

did not abuse its discretion in refusing to consider amounts

husband may have received from corporate revenues in 1996 when

it calculated his gross income for purposes of orders entered in

1998.    Furthermore, as discussed above, an extrapolation from

1998 revenue indicates that gross corporate revenues for 1996

equaled those projected for 1998, when husband's net monthly

income from the corporation was actually lower than the amount

listed on his income and expense statement.    Therefore, evidence

in the record concerning 1996 would not require a finding that

husband's income was higher at that time.

        We hold that the trial court did not abuse its discretion

in crediting husband's personal income and expense statement and

corporate records for January through April 1998, coupled with

evidence of monetary gifts he received in 1997, in calculating

his gross income for purposes of determining spousal and child

support.    For these reasons, we affirm the ruling of the trial

court and deny wife's request for attorney's fees and costs on

appeal.

                                                          Affirmed.




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