                      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.
                          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


                               - 3 -
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
                               - 5 -
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
                               - 6 -
          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




                                 - 7 -
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.
                              - 8 -
     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.




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