Support - Child and Spousal - § 4-1 (C) - § 4-1 (D)

1996---Maya v. Maya, Va. Ct. of Appeals, Unpublished, No. 0429-95-4
Trial court did not err in imputing income to husband where, shortly after husband was laid off from his position as an accounting clerk, he was convicted of forgery, sentenced to three years probation, and prohibited from working in accounts payable and handling checks. After his conviction, husband began working 50 hours per week as a waiter, but was unable to meet his child support obligations. The trial court did not impute income to him based on his being laid off, but rather on the basis that his conviction and the difficulties of finding employment comparable to his prior position that resulted from the conviction were his own fault, as well as his own testimony that he had not sought a higher paying job since beginning work as a waiter after his conviction.

1996---Bennett v. Com., Dept. of Social Services, 22 Va. App. 684
Income not imputed to Mother who cared for profoundly disabled child and homeschooled two other children of the parties. "[T]he mother had not worked for over ten years and no evidence was introduced regarding the availability of jobs for her or the amount of income she could earn." "The party contending that income must be imputed is required to produce evidence that [is] sufficient to "enable the trial judge reasonably to project what amount could be anticipated" had the mother [procured] employment."

1996---Com. Dept. of Social Services v. Ewing, 22 Va. App. 466
Trial court found that Father who quit pharmacist job to attend medical school full time was voluntarily unemployed. Income not imputed and child support eliminated. Reversed "[I]n order to prove a material change in circumstances that justifies a reduction in support, a parent must establish that he is not "voluntarily unemployed or under-employed." (Antonelli v. Antonelli, 242 Va. 152, 154, 119 (1991) (quoting Va Code §20-108.1(B)(3)).

1996---Gelletly v. Gelletly, Va. Ct. of Appeals, Unpublished, No. 1127-95-2
Husband left high-paying job for new position, lost new position and moved for termination of spousal support. Income imputed at Husband's former salary level. Trial court found that "[h]e jumped from a place of safety into a dry hole." Affirmed.

1996---Kaplan v. Kaplan, 21 Va. App. 542
In response to employer's financial difficulties, Father accepted new employment contract with reduced compensation. Change was involuntary and income not imputed. Father's child support obligation reduced.

1996---Silvester v. Silvester, Va. Ct. of Appeals, Unpublished, No. 0515-96-3
Wife who has had no appreciable work experience during marriage is allowed a reasonable time to secure employment before the imputation of income.

1996---McClure v. McClure, Va. Ct. of Appeals, Unpublished, No. 2559-95-4
For this initial determination of child support, income was imputed to Father involuntarily retired from military because "[he] did not make "totally reasonable efforts to obtain satisfactory, suitable employment" after receiving notification." Though Father had previously earned over $100,000. annually, income imputed at minimum wage.

1996---McElroy v. McElroy, Va. Ct. of Appeals, Unpublished, No. 0481-96-4
Mother reduced her work hours to better attend to sons with serious emotional and learning disabilities. Income not imputed.

1996---Reece v. Reece, 22 Va. App. 368
Husband lost job when his position was eliminated, and he did not accept transfer. Husband accepted lower paying job rather than relocating and obtained reduction of spousal support from trial court. No imputation of income.

Court of Appeals affirmed, holding that this issue is within trial court's discretion. Eight factors listed that trial court should consider.

Denial of motion to reduce spousal support.

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1996---Stubblebine v. Stubblebine, 22 Va. App. 703
Affirmed trial court order of spousal support based upon income imputed to sixty-four year old retiree. (5-4 decision).

When the trial court has given due consideration to the nine factors set forth in Va. Code §20-107.1, its determination will not be disturbed on appeal except for a clear abuse of discretion.

In a divorce case, where a claim for alimony is made by a Wife who has been held blameless for the marital breach, the law imposes upon the Husband the duty, within the limits of his financial ability, to maintain his former Wife according to the station in life to which she was accustomed during the marriage.

Where the Wife is possessed of a sizeable estate in her own right, the law does not require her to invade that estate to relieve the obligation of her former Husband whose actions have brought an end to their marriage. Klotz, 203 Va. 677 (1962).

1996---Stubblebine v. Stubblebine, 21 Va. App. 635
Court upheld trial court order of spousal support based upon income imputed to sixty-four year old retiree.

1996---Theismann v. Theismann, 22 Va. App. 557
Income not imputed to unemployed Wife. She had made preliminary efforts at re-entering the workforce, and she had not refused any offers of employment. "The trial court found that [wife] would be able to re-enter the work force at a later time..."

1995---Auman v. Auman, 21 Va. App. 275
Father changed jobs after separation, before entry of child support order. Trial court imputed income. Affirmed. Risk of success at new job is upon Father and not upon child. Income appears to have been imputed based upon earnings history.

1995---Donnell v. Donnell, 20 Va. App. 37
Father retired from Central Intelligence Agency to serve jail time for sexually abusing his daughters. Trial court imputed Central Intelligence Agency salary to Father. Reversed by Court of Appeals. Awards must be made in light of contemporary circumstances. Father did not retire to avoid obligation of support. This was an initial determination and not a petition to reduce child support.

1995---Furman v. Furman, Va. Ct. of Appeals, Unpublished, No. 0001-94-4
Trial court reversed for failing to impute income to Father in calculating child support. "No evidence was presented from which the trial court could have found that the father's change of employment was not a voluntary change of employment in which he accepted the risk of lower income from his self-employment." It was error to find that Father carried his burden of proof.

1995---L.C.S. v. S.A.S., 19 Va. App. 709
Husband/Father attorney imprisoned and disbarred for felony sexual offenses with minor boys. Trial court denied Wife's request for spousal support, and refused to deviate from presumptive amount of child support. Reversed.

No income imputed. "[H]is former employment is a legal impossibility, and any imputation of income based on that employment would be speculative." However, trial court erred by not considering Husband's financial resources.

1995---Rawlings v. Rawlings, 20 Va. App. 663
Income not imputed to union worker on strike. Child support reduced. "[I]t is clear that the standard of living of the family established during and maintained following the marriage until the strike flowed directly from the long-term benefits of [father's] union membership."

1995---Ryan v. Kramer, 21 Va. App. 217
Income imputed to Father after he took early retirement from pilot's job he had held for 26 years to become realtor, and thereafter pilot for another airline, earning less money. Income not imputed to Mother who had never worked.

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1995---Sargent v. Sargent, 20 Va. App. 694
Income not imputed to Mother who earned less as a teacher's assistant than she would have as a factory worker. Mother's most recent work experience during last four years was as a teacher's assistant. Father's testimony was only evidence related to Mother's potential earnings in factory job. "No evidence was presented about the availability of a factory position or the hours or shifts that would be required."

1995---Squires v. Squires, Va. Ct. of Appeals, Unpublished, No. 1058-94-2
Trial court's refusal to impute income to physician who accepted a reduction in workload and a ten percent reduction in salary affirmed. Child support increased (amount had been previously set by agreement).

1994---Belke v. Belke, Va. Ct. of Appeals, Unpublished, No. 0749-93-2
Father voluntarily left Navy because of stress, etc., and became employed at a slightly lower paying job. Mother's income had increased. Income not imputed to Father and child support reduced.

1994---Brooks v. Rogers, 18 Va. App. 585
As imputation of income is a deviation from the guidelines, the factors justifying the deviation must be identified and discussed in detail to withstand scrutiny on review. Before imputing income, trial court must find that party was voluntarily unemployed or underemployed. Trial court's imputation of income to Father reversed because of insufficient evidence to support deviation.

1994---Calvert v. Calvert, 18 Va. App. 781
"Imputation of income is based on the principle that a spouse should not be allowed to choose a low paying position that penalizes the other spouse or any children entitled to support." Trial court ruling reversed on other grounds.

1994---Hamel v. Hamel, 18 Va. App. 10
It was error for trial court to not impute income to Mother when evidence showed she had voluntarily quit her job, and there was no evidence that continued unemployment was involuntary. It was irrelevant that no payment of child support had previously been ordered.

1994---Richards v. Richards, Va. Ct. of Appeals, Unpublished, No. 0786-93-3
Husband/Father was terminated when employer learned of inquiries of other potential employers. Trial court imputed income. Court of Appeals reversed, holding termination to be involuntary as a matter of law, despite fact that Husband made no effort to keep employment inquiries secret.

1993---Barnhill v. Brooks, 15 Va. App. 696
"Under the guidelines, income based on a parent's underemployment is to be imputed only after the presumptive amount has been calculated."

1993---Brody v. Brody, 16 Va. App. 647
Trial court did not impute income to Mother who left job to stay home to care for children of another marriage. Court of Appeals reversed. The trial court shall impute income to a custodial parent who is voluntarily unemployed or underemployed where the age of the child and circumstances permit the custodial parent to be gainfully employed. Burden is on parent leaving employment to prove decision to leave was not voluntary. Evidence of recent earnings history of Mother was sufficient to impute income.

Evidence concerning employment market of Germany (new future residence) not required.

"In setting an amount of child support, the 'primary issue before a trial judge is the welfare and best interests of the child, not the convenience or personal preference of a parent.' Hur v. Dep't. of Social Services, 13 Va. App. 54, 60 (1991)."

"[V]oluntary under-employment is not an absolute bar to judicial adjustment of child support if other material changes in circumstances have occurred that are not the fault of the movant." Despite voluntary underemployment, Father's child support obligation reduced due to "...his new legal obligation to support the child born of his second marriage and his first Wife's increase in income." Income was imputed.

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1993---Floyd v. Floyd, 17 Va. App. 222
Trial court not required to impute income to Wife for purposes of spousal support. Wife was unable to locate employment other than babysitting job because she did not have experience, car or driver's license. And she would have had to hire a sitter for employment away from home.

1992---Cochran v. Cochran, 14 Va. App. 827
Trial court's child and spousal support awards reversed. "[T]he trial court erred in ruling that it could not consider the income that the Husband could have earned from a second job, particularly during two months of the summer when he was not teaching." Husband quit second job he had maintained throughout marriage one day before hearing.

1992---O'Brien v. Rose, 14 Va. App. 960
Trial court denied Mother's petition to reduce her child support obligation. Reversed. Where non-custodial parent is unemployed, "[t]he court has power to find that the unemployment was voluntarily assumed and impute income [See Antonelli]. The record, however, must make clear both the fact of such a holding and the evidence substantiating it."

1991---Antonelli v. Antonelli, 242 Va. 152
The circumstances which make proper an increase, reduction or cessation of spousal support under Va. Code §20-109 are financial and economic ones.

The party who incurs a voluntary reduction of income, even if done in good faith, also bears the associated risks.

1990---Srinivasan v. Srinivasan, 10 Va. App. 728
Trial court imputed income to Wife based upon expert testimony of employment agency representative. Despite agreeing that evidence supports
finding that Wife is capable of earning amount imputed, the Court of Appeals remanded. Wife was entitled to reasonable time to secure employment before income would be imputed. The court "must look to current circumstances and what the circumstances will be 'within the immediate or reasonably foreseeable future,' not to what may happen in the future. See Young v. Young, 3 Va. App. 80, 81-82 (1986)."

A court may, under appropriate circumstances impute income to a party seeking spousal support. This conclusion logically flows from the principle that one who seeks spousal support is obligated to save as much as he/she reasonably can to reduce the amount of the support need.

1986---Edwards v. Lowry, 232 Va. 110
Trial court reduced Father's child support after his discharge from employment due to theft from employer. Reversed. A party seeking a reduction in child support payments "...must make a full and clear disclosure relating to his ability to pay. He must also show that his lack of ability to pay is not due to his own voluntary act or because of his neglect. Hammers, 216 Va. 15 31-32, ." Father "failed to meet the burden...of showing himself free of responsibility for his change in circumstances..."

  (D)  Non-Conforming Payments

2019---Bowerbank v. Bowerbank, Va. Ct. of Appeals, Unpublished, No. 1809-18-3
The trial court erred by failing to grant husband credit for a lump sum payment against his past due support obligations owed to wife pursuant to an interim agreement. Though the agreement gave either party the ability to seek incorporation of its terms into a pendente lite order of the court, neither party did so. Accordingly, the bar of satisfying delinquent payments with non-conforming payments did not apply, as the obligation was a contractual one only, and nothing in the contract itself prevented husband from making a lump sum payment towards past due obligations.

2016---McGeorge v. McGeorge, Va. Ct. of Appeals, Unpublished, No. 0413-16-2
Because Father’s payments made toward the children’s telephone bills, health insurance premiums, legal fees, and college tuition and other third party vendors are considered gifts under Virginia law, the trial court did not err in refusing to credit father for said non-conforming payments against Husband’s child support arrearage.

2012---Zedan v. Westheim, 60 Va. App. 556
The trial court erred in crediting tuition payments of $27,758 made by father towards father's child support arrearages. A court may, when equitable and under limited circumstances, allow a party credit for non-conforming support payments. The non-conforming payment must substantially satisfy the purpose and function of the support award. Absent any agreement between parties, however, payments made to third party vendors, such as to a school as in this case, are considered gifts or gratuities and may not be credited towards child support obligations.

2011---Prizzia v. Prizzia, 58 Va. App. 137
There can be no “non-conforming payments” of child support unless there is a child support award already in place.

2004---Davis-Jones v. Davis, 43 Va. App. 9
Normally, a parent paying child support pursuant to a court order may not unilaterally alter the amount or terms of payment, but instead must petition the court for a modification. In other words, child support payments required under a valid court order become vested as they accrue, and the court is without authority to reduce the amount owed on past due installments by applying credits against that amount. There are two exceptions to this rule: first, a credit will be allowed where (a) an agreement exists between the parties that modifies only the method or terms of payment, and (b) that agreement has no adverse impact on the support award; and second, a credit may be allowed where the custodial parent has voluntarily entered into an agreement to relinquish custody on a permanent basis and has further agreed to the elimination of support payments, and such agreement has been fully performed.

Trial court erred in construing father’s failure to pay child support for the seven months in which he had custody of the child as “non-conforming payments” for which he should receive credit. The evidence showed that mother had requested that father pick the child up, but that the parties did not reach any express agreement with regard to whether the child was to remain in father’s custody permanently. In fact, the parties disputed custody from shortly after father picked the child up until the court entered a temporary order seven months later. Despite the fact that the equities dictated that father receive some credit towards child support arrearages for having had custody of the child for the seven months in which those arrearages accrued, the absence of any express agreement regarding support was fatal to father’s claim for non-conforming credits.

2002---Miederhoff v. Miederhoff, 38 Va. App. 366
Father given credit for nonconforming child support payments where he had paid for college expenses for child pursuant to agreement with Mother.

2001---Gallagher v. Gallagher, 35 Va. App. 470
Upon a rehearing en banc of Gallagher v. Gallagher, 32 Va. App. 714 (2000), the Virginia Court of Appeals expressly limited the holding in Acree v. Acree, 2 Va. App. 151 (1986) (granting credit for non- conforming child support payments when the payee spouse relinquishes custody of the child to the payor spouse) to instances where the payee spouse relinquished custody entirely. When, as was the case here, the change in custody is less than a complete relinquishment, the appropriate remedy where the parties have agreed to a modification of support is for the parties to timely petition the court to modify the decree, rather than unilaterally or bilaterally alter support payments. To permit modification by the parties in a case where the change in custody is less than a complete relinquishment would invite continuous trouble and turmoil, the exact difficulties the rule prohibiting credit for non-conforming payments is designed to avoid.

When a trial court grants credit to a payor parent for Social Security benefits received by his children on account of his disability, the court does not alter the amount of child support that the parent has been ordered or is required to pay, but simply allows a source of funds, indirectly attributable to a parent, to be used to satisfy the parent’s obligation. Thus, a trial court does not retroactively modify a child support award or forgive an accumulated arrearage by crediting a dependent child’s Social Security benefits to satisfy a support obligation.

Absent express agreement approved by the court, a payor parent is not entitled to credit against his child support obligation for payments made to third-party vendors on behalf of the child for such things as day care, doctor visits, and food.

1999---Mosley v. Mosley, 30 Va. App. 828
Though social security payments received by Mother for the benefit of child can be counted against Father's child support arrearages, they cannot be counted against his spousal support arrearages.

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1997---Wilderman v. Wilderman, 25 Va. App. 500
As a general rule, obligor may not receive credit for non-conforming child support payments. Exception: (1) an agreement by the parties which modifies the terms or method of payment; and (2) which has no adverse effect on the support award.

1995---Buxbaum v. Buxbaum, 20 Va. App. 181
A spouse ordered to pay support must pay according to the terms of the decree, and payments made in excess of the amount ordered are gifts or gratuities and cannot be credited to his obligation to pay the support award.
Husband was not entitled to credit against his spousal support obligation for overpayments of child support made to wife, where the parties never agreed nor had an understanding of any kind that the overpayments of child support were to be applied to future spousal support obligations.

1994---Sanford v. Sanford, 19 Va. App. 241
The trial court erred in crediting Husband’s payments in excess of his court-ordered spousal support obligation against his future spousal support payments, where Wife never agreed to such credit. A spouse ordered to pay support must pay according to the terms of the decree, and payments made in excess of the amount ordered are considered gifts. To permit Husband to increase the amount of the specified payments at one time, reduce them at another, and require an adjustment of the differences in the future would lead to continuous trouble and turmoil. To allow Husband credit for such overpayments would be to deprive Wife of the future benefit of the amount of support money which the lower court found was proper and ordered to be paid.

1986---Acree v. Acree, 2 Va. App. 151
The trial court did not err in granting father credit for non-conforming payments of child support where, pursuant to an agreement between father and mother, the child came to be in father’s permanent custody until she emancipated, during which time the father, also pursuant to agreement, ceased paying mother support payments for the child. Where the custodial parent has by his or her own volition entered into an agreement to relinquish custody on a permanent basis and has further agreed to the elimination of support payments and such agreement has been fully performed, the purpose to be served by application of an inflexible rule denying credit for nonconforming payments is outweighed by the equities involved. Under those circumstances, the purpose of a support decree has been fulfilled, and to enforce the letter of the decree after its purpose has been served and the parties’ agreement fully performed would unjustly enrich the prior-custodial parent and shock the conscience of the average person.

1967--- Fearon v. Fearon , 207 Va. 927
Trial court erred in granting father credit against his obligation to pay to mother a unitary amount of spousal and child support sums that father paid directly to the children or to third parties on the children’s behalf. Support payments must be made in accordance with the terms of the decree, and a payor should not be permitted to vary the terms of a lawful decree to suit his or her convenience. The decree here called for payments to be made directly to mother, and father was therefore not entitled to credit for payments made directly to the children or to third parties on their behalf.

1961---Newton v. Newton, 202 Va. 515
Husband agreed to pay child support to his Wife. He reduced the amount he was paying after Wife refused to let one child visit him. The court held that Husband was not entitled to reduce the payment. The court also held that Husband was not entitled to recover overpayments that he had made. The court held that voluntary payments made under a mistake or in ignorance of law, but with full knowledge of all the facts or with the means of such knowledge, and not induced by any fraud or improper conduct on the part of the payee, could not be recovered.

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