                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Elder and Bray
Argued at Richmond, Virginia


BRADLEY SCOTT DeTUNCQ
                                            MEMORANDUM OPINION * BY
v.      Record No. 1433-00-2                 JUDGE LARRY G. ELDER
                                                 MAY 8, 2001
ALISON DeTUNCQ


               FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                      Paul M. Peatross, Jr., Judge

             John K. Taggart, III (Patricia D. McGraw;
             Tremblay & Smith, LLP, on briefs), for
             appellant.

             Ronald R. Tweel (William C. Scott IV; Michie,
             Hamlett, Lowry, Rasmussen & Tweel, P.C., on
             brief), for appellee.


        Bradley Scott DeTuncq (father) appeals from a ruling of the

Circuit Court of Albemarle County (trial court) increasing his

monthly obligation to Alison DeTuncq (mother) for the support of

the parties' minor child.      On appeal, he contends the trial

court erroneously calculated both his and mother's gross income

and erroneously refused his request for an award of attorney's

fees.     We hold the trial court did not abuse its discretion, and

we affirm the award.




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

     In a hearing on a petition for modification of child

support, the burden is on the moving party to prove a material

change in circumstances that warrants a modification of support.

See, e.g., Yohay v. Ryan, 4 Va. App. 559, 566, 359 S.E.2d 320,

324 (1987).   "Decisions concerning . . . [child] support rest

within the sound discretion of the trial court . . . ."     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 bonuses, see Code § 20-108.2(C), but should not include

income "premised upon the occurrence of an uncertain future

circumstance," Jacobs v. Jacobs, 219 Va. 993, 995, 254 S.E.2d

56, 58 (1979) (applying this principle in the context of spousal

support).   Such income also "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).



                               - 2 -
                                A.

                          FATHER'S INCOME

     Father claims the figures used by the trial court to

calculate his gross income were speculative because they were

based on possible future profits only and failed to take into

consideration, as required by statute, the reasonable business

expenses required to generate those profits.    He also contends

the trial court should have used his net income for 1999, as

testified to by his company bookkeeper.     We disagree.

     First, the profits earned by father during the part of the

Dogwood Lane construction contract already performed were not

speculative.   The evidence established that father had been

working pursuant to the Dogwood Lane contract for five full

months before the January 2000 modification hearing, and he

conceded that he had been receiving a draw during that time.

Furthermore, Rita Pace, father's bookkeeper, was able to compute

income and expense figures related to that contract for use on

father's 1999 federal income tax returns, although those returns

were not offered into evidence at the hearing.    Although it is

true that father ultimately could lose money on the contract as

a whole, such a loss would provide father with a basis for

seeking a subsequent modification of the child support award;

that possibility did not render speculative the income father

had earned under the contract prior to the time of the support

hearing.   See, e.g., Yohay, 13 Va. App. at 566, 359 S.E.2d at

                               - 3 -
324 (noting that court modifying child support award must

consider "the present circumstances of both parties").

     Second, the trial court acted within its discretion when it

determined father's monthly gross income to be $9,796.    Although

Code § 20-108.2(C) provides that gross income calculations

"shall be subject to deduction of reasonable business expenses

for persons with income from self-employment," a parent seeking

such a deduction bears the burden of proving his entitlement to

those deductions to the satisfaction of the trier of fact.

Here, once mother offered evidence of father's gross business

revenue, the burden shifted to father to offer evidence (1) of a

different gross amount, if he disputed mother's figure, and (2)

of the amount of his reasonable business expenses to be deducted

from gross income.   Here, father offered no direct evidence of

his gross receipts from the Dogwood Lane project during 1999 and

did not dispute mother's figures other than with his assertion

that they remained speculative until the entire contract had

been performed.   Further, although father offered evidence of

his business expenses related to the Dogwood Lane project during

1999, the trial court, in its role of assessing witness

credibility, was entitled to reject that evidence, as testified

to by Rita Pace, who was both the company's bookkeeper and

father's girlfriend with whom he lived and shared expenses.

Father offered little supporting documentation for these



                               - 4 -
expenses, choosing to rely almost exclusively on the

bookkeeper's testimony.

        We recognize Supreme Court precedent that a trial court may

not "arbitrarily disregard uncontradicted evidence of

unimpeached witnesses which is not inherently incredible and not

inconsistent with the facts appearing in the record, even though

such witnesses are interested in the outcome of the case."

Hodge v. American Family Life Assurance Co., 213 Va. 30, 31, 189

S.E.2d 351, 353 (1972).    However, this is not what occurred

here.    Although Pace's testimony was not inherently incredible,

her statements regarding father's annual income and expenses

from 1996 to 1999 could be viewed as inconsistent with mother's

evidence of father's expenditures during those same years.

Thus, the trial court was entitled to question the veracity of

all of Pace's testimony even though mother did not offer

specific conflicting evidence of father's expenses on the

Dogwood project.    The trial court's implicit rejection of Pace's

testimony was not improper, and without credible evidence of

father's business expenses, the court was entitled to use the

profit figure offered into evidence by mother.

        The trial court also was not required to accept the income

figures father planned to use on his 1999 federal income tax

return.    These figures, like the business deductions, came into

evidence through Pace, father's girlfriend, and father offered

no documentation to support these figures.    Although the

                                 - 5 -
parties' separation agreement required the annual exchange of

income tax returns, it did not purport to provide that these

returns were the only acceptable evidence of the parties' income

for purposes of calculating child support.

     Mother clearly did not agree with father's assertion that

his income tax figures were the most accurate indication of his

annual income, for she presented evidence tending to indicate

his earnings were greater than reflected by his tax returns,

based on both discrepancies between the deposits and withdrawals

from his only bank account and evidence of the things on which

he spent money and the amounts he spent.   The trial court

accepted mother's argument, for it concluded that "[i]t . . .

appears . . . [father] was not forthright in the amount of his

true income."   Although the trial court made this finding in

ruling on father's request for attorney's fees, it nevertheless

constitutes a finding relevant to our review of the court's

calculation of "the amount of [father's] true income."

     Finally, even if the parties' separation agreement had

provided that their federal income tax returns were binding as

to their income for the purpose of determining child support, it

was the duty of the trial court to determine support pursuant to

the statute with the best interests of the child as "the

paramount and guiding principle," and it could not have been

bound by such an agreement.   Watkinson v. Henley, 13 Va. App.

151, 158, 409 S.E.2d 470, 474 (1991).

                               - 6 -
     For these reasons, we hold the trial court did not abuse

its discretion in calculating father's "gross income" for child

support purposes.

                                  B.

                            MOTHER'S INCOME

     Father contends the trial court erroneously calculated

mother's income by failing to include a $3,000 bonus.    We

disagree.   The evidence indicated that mother received a $3,000

bonus in 1999, when her salary was $95,000, resulting in a total

annual income of $98,000.    No evidence indicated that mother

could expect to receive a bonus in 2000, when her salary was

$101,000.   Thus, the trial court did not err in concluding that

mother's income was $101,000.     Cf. Smith v. Smith, 18 Va. App.

427, 434, 444 S.E.2d 269, 274 (1994) (holding that trial court

does not abuse its discretion in failing to include in parent's

gross income capital gains not realized contemporaneously with

child support hearing); Goldhamer v. Cohen, 31 Va. App. 728, 737

n.2, 525 S.E.2d 599, 603 n.2 (2000) (further interpreting

Smith); id. at 739, 525 S.E.2d at 604 (Elder, J., concurring)

(same).   Any other figure would be speculative and would violate

the very principles that father advances so forcefully in regard

to the calculation of his own income.




                                 - 7 -
                                C.

                          ATTORNEY'S FEES

     Father contends that he was entitled to an award of

attorney's fees because no evidence established that he was

dilatory in providing his 1998 income information to mother or

that the figures he provided were inaccurate.    We hold the trial

court did not abuse its discretion in refusing to award

attorney's fees to father pursuant to the parties' agreement.

The agreement provides for an award of attorney's fees to a

"party whose position substantially prevails" or a

"non-breaching party" whose "position relative to such breach is

substantially maintained by settlement or court order."    Here,

the evidence, viewed in the light most favorable to mother,

indicates that father was not a "prevailing" or "non-breaching

party" because he did not provide mother with his financial

information for 1996 through 1998 until sometime in 1999.

Further, father's position regarding the amount of his income

was not "substantially maintained" by order of the trial court

or this Court.   Thus, the trial court did not err in refusing

father's request for an attorney's fees award.

                                II.

     For these reasons, we hold the trial court did not abuse

its discretion in calculating father's or mother's gross income




                               - 8 -
or in refusing father's request for an award of attorney's fees.

Thus, we affirm the trial court's ruling.

                                                        Affirmed.




                              - 9 -
