                                COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Beales
Argued at Alexandria, Virginia


JON THOMAS DEGA
                                                               MEMORANDUM OPINION* BY
v.      Record No. 2512-06-4                                   JUDGE JAMES W. BENTON, JR.
                                                                    AUGUST 14, 2007
DEBRA ANN VITUS


                       FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                   Arthur B. Vieregg, Judge

                  Valerie E. Hughes (Lawrence H. Bowen; The Bowen Law Firm, on
                  briefs), for appellant.

                  Debra A. Goldenberg (Goldenberg & Phillips, P.C., on brief), for
                  appellee.


        This appeal arises from a final decree of divorce. Jon Thomas Dega contends the trial judge

abused his discretion by (1) ordering spousal support to Debra Ann Vitus, his wife, retroactive to the

date of the filing of the bill of complaint, (2) determining the husband’s income primarily upon the

testimony of the wife, (3) imputing to the husband $40,000 in rental income without considering the

expenses of maintaining the property, and (4) deviating from “the spousal and child support

guidelines” without providing a basis for the deviation. We affirm the decree, in part, reverse, in

part, and remand for reconsideration.

                                                   I.

        The husband contends the trial judge abused his discretion in awarding spousal support

retroactive to the date wife filed her bill of complaint. He argues “[t]he Wife made no request

. . . for spousal support until the trial, over twelve months from the date of the filing of the Bill of

        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Complaint.” He further argues it is “inequitable to allow the Wife to sit on her rights for twelve

months, with a huge amount of cash in the bank, and then collect arrearages for those months.”

          Code § 20-107.1(A) provides that, upon entry of a decree for a divorce, “the court may

make such further decree as it shall deem expedient concerning the maintenance and support of

the spouses.” This statutory grant of authority means that “[d]ecisions regarding ‘spousal . . .

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.’” Konefal v. Konefal, 18 Va. App. 612, 614, 446

S.E.2d 153, 154 (1994) (citation omitted). Moreover, the Supreme Court and this Court have

repeatedly held “that the time permanent [spousal support] shall commence is within the sound

discretion of the court and may be made effective as of the date of the commencement of the

suit.” Lawrence v. Lawrence, 212 Va. 44, 47, 181 S.E.2d 640, 642 (1971); see also Young v.

Young, 215 Va. 125, 126, 107 S.E.2d 825, 825 (1974) (per curiam); Konefal, 18 Va. App. at

614, 446 S.E.2d at 154; Weizenbaum v. Weizenbaum, 12 Va. App. 899, 904, 407 S.E.2d 37, 40

(1991).

          The wife filed her bill of complaint June 24, 2005. In paragraph C, she requested

“support and maintenance of the parties’ minor children and herself, both pendente lite and

permanently.” By raising the issue in her initial pleadings, the wife gave notice of her intention

to seek support. See Boyd v. Boyd, 2 Va. App. 16, 19, 340 S.E.2d 578, 580 (1986) (holding that

the power to award support “remains dependent upon the pleadings having raised the issue”).

Further, following a hearing for pendente lite relief, the trial judge entered an order that

“reserved” the issue of spousal support and ruled a final award would be “retroactive to at least

12/9/05.” In view of this evidence, the husband’s argument that the wife “sat on her rights” has

no merit.




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       The evidence supports the trial judge’s award of spousal support retroactive to the date of

the initial filing. After the separation, the husband paid no support for the wife or children until

ordered by the December 2005 pendente lite award to pay child support. The wife’s and

children’s standard of living deteriorated dramatically following the separation. During the

separation, the wife used funds from the property settlement to pay living expenses and other

debts incurred by the parties during the marriage. The husband continued to enjoy a comfortable

lifestyle. In view of this evidence, the trial judge did not abuse his discretion in awarding the

wife spousal support retroactive to the date of the filing of the bill of complaint.

                                                  II.

       The husband contends the trial judge abused his discretion “in concluding that [the

husband’s] earnings and earning capacity was $140,000 based primarily on the testimony of [the

wife].” He argues the judge accepted the wife’s testimony despite providing “no documentation

whatsoever to support her testimony.”

       At the hearing, the parties offered contradictory testimony regarding the husband’s work

activities and income. The husband is the sole proprietor of a business that services, repairs, and

makes performance modifications on Ford vehicles. The husband testified his income was

“approximately $50,000 annually.” As proof of his income, husband offered an income and

expense sheet reflecting a monthly gross income of $4,166 and a net income of $2,341.

       For a while during the marriage, the wife worked part-time for the husband, helping

“with the paperwork” and “doing payroll.” According to the wife’s testimony, the husband

conducted various “trade” transactions as part of his business, “so that no money took place, or

money was filtered out of the business as cash.” She explained that these “trades” resulted in

various benefits, including “$10,000 to $15,000 of work on [the marital home] every year.” She

testified the husband derived additional income from plowing snow “for $50 to $75 a shot,” from

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“getting free parts from dealers for advertising and putting them on his own car or selling them,”

from work he does at his business “on the side,” and from a vending machine located in the

business. The wife testified that the husband earned between $100,000 and $120,000 annually,

that he “brags about making $5,000 a day in profit,” and that he has acknowledged earning

$100,000 a year.

       In his opinion letter, the trial judge noted that neither party presented corroborating

documents to support their income testimony. However, he disbelieved much of the husband’s

testimony and credited much of the wife’s testimony. He found:

                  [The husband] testified he earns $34,000 per year from his
               business but stipulated that for purposes of this litigation it might
               be deemed to be $50,000. This stipulated amount is not accepted
               by court. He acknowledged that he has received additional income
               from snow plowing during the winter months. His attempts to
               limit that income was uncorroborated by documentary evidence he
               might have produced. He [has] confirmed his wife’s testimony
               that he engaged in off-the books bartering. He testified these
               transactions were limited but again did not provide any
               documentary evidence with respect to them. He earns $4,000 per
               week from the [beach house]. Perhaps most importantly are the
               facts that he is presently paying $2,500 per month ($30,000 per
               year, almost equal to his supposed income) to rent his present
               Stafford residence; and is considering the exercise of his option to
               buy the home for $625,000.

       The trial judge specifically found that “the extent of [the husband’s] income is in

question,” and he believed the wife’s general descriptions of ways in which the husband earned

additional monies. Thus, the trial judge found as follows:

                   [The wife] further testified that her husband would routinely
               take cash out of the business and engage in non-cash transactions
               to gain additional income. However, insufficient evidence was
               presented to quantify income received in this manner. She further
               testified that [the husband] had represented to her that he was
               receiving income from the business ranging from $100,000 to
               $150,000 per year. While [she] was unable to prove his precise
               earnings from the business, the foregoing circumstances are
               sufficient to corroborate that he makes at least $100,000 from the
               business. Further, when all the evidence related to his earnings are
                                               -4-
               taken into account, as well as his present rent payments for his
               home in Stafford, I conclude his earnings and earning capacity are
               not less than $140,000 per year or $11,667/month.

       We reject the husband’s characterization of the trial judge’s findings as “imput[ing] to the

husband an income.” In Floyd v. Floyd, 17 Va. App. 222, 436 S.E.2d 457 (1993), we noted that,

“[a]lthough the trial judge made reference to imputing income, the record clearly shows that this

was not the sort of imputation, based on voluntary underemployment, to which the statute

applies. What the trial judge did was make a finding of fact as to the amount of [husband’s]

gross income.” Id. at 229, 436 S.E.2d at 461. In this case, the trial judge’s opinion letter clearly

established that he rejected the husband’s testimony and drew reasonable inferences from the

evidence to find the husband’s total income from the various sources. Although the judge

referred to the husband’s “earnings and earning capacity,” his analysis indicates that he

considered the various sources of the husband’s income and expenses and then drew reasonable

inferences to determine the husband’s annual earnings.

       At the ore tenus hearing the trial judge commented, “It is plain to me that [husband’s]

testimony is evasive. But I can’t tell where it begins and where it ends in terms of truthfulness.”

Finding the evidence in conflict, the trial judge found wife’s testimony more credible and drew

reasonable inferences from the evidence. When witnesses offer conflicting testimony, it is within

the sound discretion of the trial judge to determine the weight to be given to the testimony, to

choose to believe the testimony of one witness, and to disbelieve the testimony of another.

Anderson v. Anderson, 29 Va. App. 673, 686, 514 S.E.2d 369, 376 (1999); Street v. Street, 25

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

       Sufficient evidence supports the trial judge’s finding that husband earned more than the

$50,000 annual amount the husband acknowledged. The evidence established the type of

lifestyle the parties enjoyed during the marriage, the sources of the husband’s earnings from his


                                                 -5-
automotive business and other endeavors, and the “cash” nature of the many activities.

Assessing this evidence and the husband’s current standard of living, the judge found the

circumstances corroborated wife’s testimony that husband earned an income in excess of

“$100,000 from the business” alone. The record shows no abuse of discretion.

                                               III.

       The husband contends the trial judge erred in ruling that “[b]ecause [the husband]

presented no evidence as to expenses to operate the beach house, $4,000 per week for 10 weeks

is deemed his income from the house without deduction for operational expenses.” We agree

and hold the trial judge erred in failing to consider the mortgage expense paid on the beach house

when determining the husband’s income.

       The guidelines for determining child support provide, in part, that “[g]ross income shall

be subject to deduction of reasonable business expenses for persons with income from

self-employment, a partnership, or a closely held business.” Code § 20-108.2(C). The trial

judge found that the husband’s testimony and his expense statement were insufficient to prove

the monthly mortgage was $3,950. Consequently, he ruled, “[b]ecause [the husband] presented

no evidence as to expenses to operate the beach house, $4,000 per week for 10 weeks is deemed

his income from the house without deduction for operational expenses.”

       The evidence proved the husband received the beach house property as part of the

parties’ property settlement. The husband testified about the monthly mortgage expenses he

incurred for the beach house, and he introduced at the hearing an exhibit of his income and

expenses, which reflects a monthly mortgage payment of $3,950 toward the property. In the

wife’s response to husband’s interrogatories, she admitted the rent proceeds from the property

were used to pay the mortgage on the property. Moreover, she never contested the existence or

amount of the mortgage. In short, the uncontradicted evidence in the record established the

                                              -6-
property was encumbered by a mortgage and the husband paid monthly $3,950 for the mortgage.

Thus, the trial judge erred in finding the rent proceeds were income to the husband without

deduction for the mortgage expense.

                                                 IV.

        Husband contends the trial judge abused his discretion “in departing dramatically from

the spousal and child support guidelines.” The wife asserts that the husband’s challenges to the

support orders are barred by Rule 5A:18 because the husband failed to timely raise the specific

issues at trial.

        We need not resolve this issue because our holding in Part III requires that we remand the

child support and spousal support awards for further proceedings. See also Herring v. Herring,

33 Va. App. 281, 532 S.E.2d 923 (2000) (applying the ends of justice exception to Rule 5A:18

for a challenge to the support guidelines). On remand, the trial judge must recalculate child

support under the guidelines.

                                                  V.

        In summary, we hold the trial judge did not abuse his discretion in awarding spousal

support retroactive to the date of the filing of the bill of complaint and in assessing the parties’

testimony in determining the husband’s income. We also hold, however, that the trial judge

erred in failing to consider mortgage payments made on the property from the rental proceeds

when assessing the husband’s income from the beach house. Therefore, we remand the case for

a recalculation of child support under the guidelines and reconsideration of spousal support.

                                               Affirmed in part, reversed in part, and remanded.




                                                 -7-
