Street v. Street

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Baker, Benton, Coleman, Elder,

Bray, Fitzpatrick and Overton

Argued at Richmond, Virginia

DANIEL T. STREET

OPINION BY

v. Record No. 2363-95-4 CHIEF JUDGE NORMAN K. MOON

AUGUST 12, 1997

JOYAL C. STREET

UPON REHEARING EN BANC

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

F. Bruce Bach, Judge

Lee Anne Washington (Chaplin, Papa & Gonet,

on brief), for appellant.

Richard J. Byrd (Byrd, Mische, Bevis, Bowen,

Joseph & O'Connor, P.C., on briefs), for

appellee.

Daniel T. Street ("husband") appeals the trial court's

denial of his petition for modification of spousal and child

support. Husband asserts that the trial court erred in finding

that he failed to prove a change of circumstances that warranted

modification of his support obligation. A panel of this Court

reversed the trial court's decision, holding that the trial court

erroneously disregarded uncontradicted expert testimony that

husband's mental condition worsened in the months following the

divorce decree, constituting a material change in circumstances

warranting modification of his support obligation. See Street v.

Street, 24 Va. App. 2, 480 S.E.2d 112 (1997). We granted Joyal

C. Street ("wife") a rehearing en banc. We hold that because the

trial court determines a witness' credibility and the weight to

be given an expert's opinion, the trial court, having found

husband's conduct suspect, was not required to give any weight to

the expert opinion. Accordingly, we hold that the trial court's

decision was not plainly wrong, and we affirm.

FACTS

The parties married in 1969 and had five children, two of

whom were dependents at the time of the hearing. During the

marriage, husband supported wife and their children by operating

a carpet installation business. The business' primary source of

revenue was from subcontracts with L & L Carpet Company, a

business operated by Eugene Lane, husband's long-time friend.

Husband expanded his business in 1990 to include the retail sale

of carpeting materials. From 1990 to 1994, husband's business

averaged gross revenues of more than $1,000,000 a year and paid

husband an annual salary of approximately $76,000. Husband's

financial records established that in actual withdrawals, husband

withdrew $117,861 in 1993 and $87,419 in 1994 for personal use.

Despite the business' substantial revenues, poor record keeping

and billing practices resulted in a frequently overdrawn checking

account and, by the end of 1994, current liabilities that

exceeded current assets by at least $36,000. In addition, by

1995, the business owed federal taxes for 1992, 1993, and 1994,

and had borrowed $18,000 from husband's relatives.

The parties separated in December, 1992, and wife filed for

divorce in 1993. The trial court held three days of hearings on

equitable distribution, spousal support and child support. After

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extensive testimony regarding the status of husband's business,

including evidence concerning its debts and tax liabilities, the

trial court determined that the business had a fair market value

of $160,000 and that husband drew a salary of $6,139 per month

from his business and an additional $1,500 per month from "side

jobs." In the equitable distribution division, the trial court

awarded the business to husband, the marital home to wife. As to

support, the trial court ordered husband to pay $2,300 per month

in spousal support and $921 per month in child support. Husband

testified that after hearing the court's decision, that he felt

that he could not continue with his business:

I thought I couldn't continue. I just felt

that I couldn't continue the way I was

continuing. I knew that I was -- I was

$14,000 behind in my checking account, and we

were forcing checks every day almost, and I

owed a lot of people a lot of money and I

didn't know how to stop it. And I knew that

I was going to be forced to be closed if he

[Lane] didn't come in and maybe reconstruct

me or tell me what I was doing wrong or

something.

The day after the trial court's order, Lane reviewed

husband's books and agreed to assist husband, provided husband

agreed to follow Lane's directions. After spending three days

assessing husband's business, Lane concluded that the business

was beyond salvage and he told husband that the business should

be dismantled in an orderly fashion such that none of the

employees would be "hurt." Lane recommended that husband

"shouldn't just shut the doors and board it up." Consequently,

husband began the procedure of closing his business. On June 16,

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1995, husband concluded dismantling his business. Subsequently,

husband went to work for Lane at Lane's L & L Carpet business,

earning a salary of $625 per week, a reduction in income of

approximately sixty percent.

On August 18, 1995, husband filed a petition for

modification of spousal and child support, alleging a material

change in both his mental health and the condition of his

business. At a modification hearing on September 27, 1995,

husband's mental health counselor, Zeena Zeidberg, and his

psychologist, Ellen Dixon, testified regarding husband's mental

condition. Ms. Zeidberg stated that she had begun seeing husband

in January, 1993, at which time she observed that husband had

disorganized, unfocused thought patterns and regularly

encountered difficulty maintaining a structured discussion during

their appointments. Based on her observations, Ms. Zeidberg

suspected that husband might be suffering from Attention Deficit

Disorder (ADD), an involuntary, neurological disorder that

impairs a person's ability to process information, a condition

that may be exacerbated by stress. Ms. Zeidberg arranged for

husband to take test dosages of the prescription drug Ritalin,

beginning in May, 1994, a year before the final support decree

was entered. After husband responded well to the drug, Ms.

Zeidberg suggested husband see a clinical psychologist for a

complete evaluation. Husband chose not to pursue a diagnosis at

that time but continued taking the test dosages of Ritalin.

Ms. Zeidberg testified that she believed that husband had

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suffered from ADD throughout the course of his life and that he

had suffered from the untreated disorder during the entire period

that he operated his business. She stated that after beginning

his treatment, husband's mental condition improved markedly and

continued to do so until the time of the final divorce

proceedings. She testified that after the final divorce

proceedings began, despite the fact that husband was still taking

Ritalin, his condition worsened and he appeared to show symptoms

of depression as well as ADD.

Dr. Ellen Dixon testified that she consulted with Dr. Eist,

a psychiatrist who had seen husband on August 23, 1995, and who

had diagnosed him with ADD and chronic depression. Dr. Eist

concluded that husband "had this ADD undoubtedly all his life"

and that he suffered from severe depression as well as from an

anxiety disorder. Dr. Dixon also concluded that husband suffered

from ADD and depression and anxiety disorders and testified that

because ADD, chronic depression, and anxiety disorder are all

neurochemical disorders that affect the neurotransmitter system,

"they all make each other worse" when they occur simultaneously.

When asked whether specific stresses in husband's life had

exacerbated husband's ADD, Dr. Dixon speculated that it was

possible but added that "there is a lot I don't know here because

I am new in this picture."

Dr. Dixon offered the following opinion regarding husband's

counsel's inquiry concerning husband's ability to work:

Q. In the two sessions that you have had

with Mr. Street, have you been able to

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or do you have an opinion of his current

ability to make the kinds of decisions

that someone managing a business would

have to make, the sort of prioritization

and discretionary decisions?

A. Yes.

Q. What is your opinion?

A. My opinion on that is there is no

way on earth Mr. Street could run a

business now, or I suspect ever, or

in the past, frankly, effectively

work.

The trial court later asked Dr. Dixon if the purported

deterioration of husband's mental condition had occurred since

May and she stated that she believed that "these behaviors have

been with [husband] forever."

At the conclusion of the evidence, the trial court denied

husband's petition, finding that husband had voluntarily closed

his business and that his psychological problems existed prior to

the final divorce hearing. Citing Antonelli v. Antonelli, 242

Va. 152, 409 S.E.2d 117 (1991), the trial court concluded that a

modification of husband's support obligations was prohibited as

husband's reduction in income resulted from his voluntary closure

of his business.

MODIFICATION OF SPOUSAL AND CHILD SUPPORT

"The moving party in a petition for modification of support

is required to prove both a material change in circumstances and

that this change warrants a modification of support."

Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28,

30 (1989); Mansfield v. Taylor, 24 Va. App. 108, 114, 480 S.E.2d

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752, 755 (1997). The material change "must bear upon the

financial needs of the dependent spouse or the ability of the

supporting spouse to pay." Hollowell v. Hollowell, 6 Va. App.

417, 419, 369 S.E.2d 451, 452 (1988).

Here, the record established that husband's ADD was not a

new condition but, rather, as his psychiatrist testified, was a

condition that had "been with [husband] forever." As such, the

mere diagnosis and treatment of a condition which existed during

the entire period that husband ran his business, the income upon

which his support order was based, would be insufficient to

sustain a finding of a material change in circumstances.

However, the only witnesses who testified about husband's mental

condition also opined that the extreme stress husband experienced

as a result of the dissolution of his marriage had exacerbated

his ADD and caused him to suffer from two new disorders, chronic

depression and anxiety. Husband argues that this evidence was

sufficient to establish that a material change in his mental

condition occurred which warranted a modification of support.

Consequently, we decide what weight the trial court was required

to give to the testimony of the expert witnesses who presented

the only testimony concerning husband's mental condition.

"Under familiar principles we view [the] evidence and all

reasonable inferences in the light most favorable to the

prevailing party below. Where, as here, the court hears the

evidence ore tenus, its finding is entitled to great weight and

will not be disturbed on appeal unless plainly wrong or without

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evidence to support it." Martin v. Pittsylvania Department of

Social Services, 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986). It

is well established that the trier of fact ascertains a witness'

credibility, determines the weight to be given to their

testimony, and has the discretion to accept or reject any of the

witness' testimony. Bridgeman v. Commonwealth, 3 Va. App. 523,

528, 351 S.E.2d 598, 601 (1986). Further, the fact finder is not

required to accept the testimony of an expert witness merely

because he or she has qualified as an expert. McLane v.

Commonwealth, 202 Va. 197, 205-06, 116 S.E.2d 274, 281 (1960).

In determining the weight to be given the testimony of an expert

witness, the fact finder may consider the basis for the expert's

opinion. Gilbert v. Summers, 240 Va. 155, 393 S.E.2d 213 (1990).

Here, the record establishes that the trial judge, as fact

finder, had substantial reason not to be persuaded by Ms.

Zeidberg's and Dr. Dixon's conclusions. Within three days of the

entry of the final divorce and support decree, husband began the

dissolution of a business that had grossed more than $1,000,000

in annual revenues and which had provided husband an income of

more than $70,000 in each of the years 1992, 1993, and 1994. Two

months after closing the business, husband filed a modification

petition asserting that the material change in his mental and

business conditions warranted a change in his support obligation.

In support of husband's assertion that a change in his

mental condition had occurred, Ms. Zeidberg and Dr. Dixon both

testified that husband suffered from ADD. However, both also

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testified that husband must have suffered from ADD his entire

life and consequently, he suffered from ADD during the entire

time that he operated his carpet business. Nevertheless, within

days of the trial court's spousal support award, husband began to

dissolve his business. Further, Dr. Dixon testified that because

of the severity of husband's ADD disorder, "there is no way on

earth Mr. Street could run a business now, or I suspect ever

. . . ." The accuracy of Dr. Dixon's opinion is belied by the

fact that husband did conduct a business from which he generated

substantial income for a period of more than seventeen years,

while suffering from untreated ADD. Dr. Dixon's diagnosis, which

was contradicted by husband's work history, provides substantial

reason for the court to reject Dr. Dixon's opinion and to

disbelieve husband and the history that he may have provided as

the basis for the experts' opinions.

The trial court was also justified in rejecting Ms.

Zeidberg's and Dr. Dixon's testimony that the exacerbation of

husband's ADD, combined with new disorders, caused his business

difficulties. Husband was the sole source of information that

formed Ms. Zeidberg's and Dr. Dixon's opinions of husband's

mental condition. Both testified that he acted in a fashion

consistent with his representation to them that he was suffering

severe depression and anxiety as a result of his divorce.

However, the record established that husband and wife separated

in December, 1992, more than two years prior to the court's final

support order and during that period husband continued to run his

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business and to enjoy substantial income therefrom. In addition,

by the time of the hearing, husband was living with his

girlfriend and was working for his friend, Lane, who paid him a

salary regardless of whether husband reported for work. In

support of his claim that he was not able to work, husband

testified that in fact, he did not work very much, and instead

stayed at his girlfriend's home and helped get her children off

to school.

Further, the evidence shows that in January, 1993, husband

began receiving treatment for his problems, including the

successful use of Ritalin in May, 1994. Ms. Zeidberg testified

that husband had steadily improved while taking Ritalin. Husband

stated that he continued to take Ritalin throughout the time of

the divorce proceeding. Nevertheless, despite husband's marked

improvement for more than a year, his mental condition worsened

after the trial court's spousal support order. At that time

husband also suddenly decided to seek psychiatric treatment, a

course of action recommended to him more than a year earlier by

Ms. Zeidberg, which husband had refused to pursue.

Husband's course of conduct provided a basis for the trial

court to reject husband's explanation for his reasons for closing

his business. The trial court determines a witness' credibility,

Bridgeman, 3 Va. App. at 528, 351 S.E.2d at 601, and the weight

to give an expert's opinion. Gilbert, 240 Va. at 155, 393 S.E.2d

at 213. The trial court was entitled to not believe the

husband's explanation concerning his mental condition and that he

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was not deriving benefits from his business that Lane had

absorbed. The trial court was not required to believe or to give

weight to the expert opinions. Experts do not determine the

credibility of a witness. See Coppola v. Commonwealth, 220 Va.

243, 251-53, 257 S.E.2d 797, 802-04 (1979). The trial court did

not err in rejecting the husband's testimony and that of his

expert witnesses concerning his mental status and its effect upon

his ability to have continued to operate his carpet business.

Accordingly, we hold that the trial court's decision was not

plainly wrong, and we affirm.

Affirmed.

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Elder, J., with whom Benton, J., joins, dissenting.

For the reasons stated in the panel opinion, see Street v.

Street, 24 Va. App. 2, 480 S.E.2d 112 (1997), and as stated

herein, I would hold that the trial court abused its discretion

when it arbitrarily rejected Ms. Zeidberg's unimpeached,

uncontradicted, and credible testimony that husband's mental

health had changed since the entry of the trial court's awards of

child and spousal support. I would remand this case for further

proceedings to determine if the change in husband's mental health

affected his ability to pay child and spousal support at the

level initially ordered.

A.

In the portion of its opinion addressing the weight a trial

court is required to give to the testimony of expert witnesses,

the majority holds that "it is within the fact finder's

discretion to accept or reject any of the testimony offered."

(Emphasis added). In a line of cases dating back to 1930, the

Virginia Supreme Court has repeatedly held that triers of fact do

not have carte blanche authority to reject the testimony of

witnesses and that their discretion to determine credibility is

limited by the boundaries of reason. Typical of this line of

cases is Hodge v. American Family Life Assurance Co. of Columbus,

in which the Court said:

While a jury, or a judge trying a case

without a jury, are the judges of the weight

of the testimony and the credibility of

witnesses, they may not arbitrarily disregard

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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.

213 Va. 30, 31, 189 S.E.2d 351, 353 (1972) (emphasis added). Our

Supreme Court has applied this doctrine at least twelve times

since 1930. See Cheatham v. Gregory, 227 Va. 1, 4-5, 313 S.E.2d

368, 370 (1984); Chesson v. Commonwealth, 216 Va. 827, 832, 223

S.E.2d 923, 926 (1976); Williams v. Vaughn, 214 Va. 307, 310, 199

S.E.2d 515, 517 (1973); Hodge, 213 Va. at 31, 189 S.E.2d at 353;

Presley v. Commonwealth, 185 Va. 261, 266-67, 38 S.E.2d 476, 478

(1946); Worsham v. Commonwealth, 184 Va. 192, 194, 34 S.E.2d 234,

235 (1945); Hamilton v. Commonwealth, 177 Va. 896, 903, 15 S.E.2d

94, 97 (1941); Fairfax v. Commonwealth, 177 Va. 824, 828, 13

S.E.2d 315, 316 (1941); Nelson v. Commonwealth, 168 Va. 742, 747,

191 S.E. 620, 622-23 (1937); Epperson v. DeJarnette, 164 Va. 482,

485-86, 180 S.E. 412, 413 (1935); Hawkins v. Commonwealth, 160

Va. 935, 942, 169 S.E. 558, 560 (1933); Spratley v. Commonwealth,

154 Va. 854, 864, 152 S.E. 362, 365 (1930).

This rule applies equally to the testimony of both lay and

expert witnesses. See McLane v. Commonwealth, 202 Va. 197, 206,

116 S.E.2d 274, 281 (1960) (stating that expert testimony "should

be given the same consideration as is given that of any other

witness"). Thus, the majority's holding that triers of fact are

free to "reject any of the testimony offered" flies in the face

of sixty-seven years of our Supreme Court's precedents and

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violates the principle that this Court is "bound by decisions of

the Supreme Court of Virginia and [is] without authority to

overrule them." Tart v. Commonwealth, 17 Va. App. 384, 392, 437

S.E.2d 219, 224 (1993) (citing Roane v. Roane, 12 Va. App. 989,

993, 407 S.E.2d 698, 700 (1991)).

The discretion afforded triers of fact to determine the

credibility of witnesses, including experts, is broad but not

without limits. Regarding experts, a fact finder is not required

to accept the testimony of an expert witness merely because he or

she was qualified as an expert. See McLane, 202 Va. at 205-06,

116 S.E.2d at 281. In addition, some expert testimony is not

admissible as evidence, including that which concerns matters of

common knowledge, such as the veracity of witnesses and that

which is speculative. See Coppola v. Commonwealth, 220 Va. 243,

252, 257 S.E.2d 797, 803-04 (1979) (regarding matters within

common knowledge); Gilbert v. Summers, 240 Va. 155, 160, 393

S.E.2d 213, 215 (1990) (regarding speculative expert testimony).

However, as with all oral testimony, a fact finder may not

arbitrarily disregard the uncontradicted testimony of an

unimpeached expert witness whose testimony is neither inherently

incredible nor inconsistent with facts in the record. See

Cheatham, 227 Va. at 4-5, 313 S.E.2d at 370; Spratley, 154 Va. at

864, 152 S.E. at 865. 1

1

The majority relies on Bridgeman v. Commonwealth, 3 Va.

App. 523, 528, 351 S.E.2d 598, 601 (1986), as authority to

support its holding that "[i]t is well established that . . . it

is within the fact finder's discretion to accept or reject any of

the testimony offered." However, the text of Bridgeman does not

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B.

Applying these principles to this case, I would hold that

the trial court erred when it concluded that husband's mental

health did not change in the weeks following the entry of the

trial court's awards of child and spousal support in May, 1995.

Specifically, I would hold that the trial court erred when it

arbitrarily disregarded the expert testimony of Ms. Zeidberg that

husband's mental condition worsened during the summer months of

1995.

Ms. Zeidberg was qualified as an expert "in children and

adults with attention deficit disorder." She testified that she

began counseling husband in January, 1993 and that she had "met

with him 111 times for better than 140 hours of contact." She

testified that ADD is an involuntary neurological disorder that

expressly support this proposition and reading it to do so

constitutes, in my opinion, an overbroad interpretation of its

language. The cited portion of Bridgeman states:

The weight which should be given to evidence

and whether the testimony of a witness is

credible are questions which the fact finder

must decide.

Id. at 528, 351 S.E.2d at 601. This language, which is

unsupported by citation to precedent, makes no reference to the

line of cases beginning with Spratley in 1930 and concluding with

Cheatham in 1984 that qualify a fact finder's discretion to

determine the credibility of witnesses by prohibiting the

arbitrary rejection of testimony. I do not believe that the

panel of this Court that decided Bridgeman intended this language

to expand the discretion of fact finders beyond the limits

repeatedly set forth by our Supreme Court. Thus, I believe that

an accurate interpretation of this language requires it to be

read together with, and not contrary to, the Spratley line of

cases.

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impairs a person's ability to process information and may be

exacerbated by stress. She testified that she had long suspected

that husband suffered from ADD and that another physician had

diagnosed him with both ADD and depression in mid-1995. She

testified that she met with husband regularly during the two year

period before the hearing on child and spousal support and that

husband "seemed to get better." However, after May 18, 1995, the

date of the trial court's ruling on these issues, she testified

that husband's ADD became exacerbated. She testified that, while

meeting with husband during this time, she observed that he was

increasingly disorganized and unable to focus on the problems

affecting his business.

Nothing in the record supports a finding that Ms. Zeidberg's

testimony was inherently incredible, impeached, or contradicted

by other facts. First, Ms. Zeidberg's expert testimony regarding

the change in husband's mental health was not inherently

incredible. The record indicates that it was based on both an

accurate understanding of the relevant facts and on a reasonable

probability. See Gilbert, 240 Va. at 160, 393 S.E.2d at 215

(stating that an expert's opinion possesses evidential value only

if it is not speculative, i.e., if it is "based upon facts within

[the expert's] knowledge or established by other evidence");

Clinchfield Coal Co. v. Bowman, 229 Va. 249, 252, 329 S.E.2d 15,

16 (1985) (holding that a doctor's medical opinion was not

credible evidence because it was based upon a faulty premise);

Spruill v. Commonwealth, 221 Va. 475, 479, 271 S.E.2d 419, 421

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(1980) (stating that a medical opinion is speculative if based on

a "possibility" and admissible if based on a "reasonable

probability"). Ms. Zeidberg's testimony established that her

opinion was based upon both her expert knowledge of adults

suffering from ADD and her extensive knowledge of husband's case,

which she gleaned from meeting with husband regularly over a two

and one-half year period. In addition, the manner in which she

expressed her opinion indicated that it was based on a reasonable

probability and not a mere possibility.

In addition, Ms. Zeidberg's testimony was unimpeached and

uncontradicted by other evidence in the record. During his

cross-examination of Ms. Zeidberg, wife's counsel did not offer

evidence that established that Ms. Zeidberg had either a bad

character for veracity or a bias in favor of husband or against

wife. Wife's counsel introduced no prior statements by Ms.

Zeidberg that were inconsistent with her direct testimony. At

the conclusion of husband's case-in-chief, wife's counsel

declined to offer any evidence that conflicted with Ms.

Zeidberg's account of husband's deteriorating mental condition.

In addition, Ms. Zeidberg's testimony was consistent with the

other evidence offered by husband. In particular, the testimony

of Dr. Dixon, who also testified on husband's behalf, did not

contradict Ms. Zeidberg's testimony about the change in husband's

mental health. Dr. Dixon corroborated Ms. Zeidberg's testimony

that husband suffered from ADD long before he was ordered to pay

support. Dr. Dixon's testimony also indicated that she lacked

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sufficient knowledge about husband's case to opine whether or not

his ADD had worsened since May 18.

Because Ms. Zeidberg's testimony regarding the deterioration

of husband's mental condition was unimpeached, uncontradicted,

and not inherently incredible, I would hold that the trial court

acted arbitrarily when it disregarded her testimony and concluded

that husband's mental health had not changed since the entry of

its support order. See Hodge, 213 Va. at 32, 189 S.E.2d at 353

(holding that the trial court's "mere belief or speculation" that

husband was lying was not sufficient to disregard his

uncontradicted, credible testimony that he did not provoke his

wife to shoot him); see also Cheatham, 227 Va. at 4-5, 313 S.E.2d

at 370. I would remand this case to the trial court for

proceedings to determine whether the change in husband's mental

health warrants the modification of his support obligations.

For the foregoing reasons, I dissent.

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