Support - Child and Spousal - § 4-1 (C)
2018---Collins v. Leeds, Va. Ct. of Appeals, Rec. No. 1770-17-4
The trial court did not err in refusing to impute income to husband in its spousal support order. Where one party requests the court to impute the income of the other for purposes of establishing spousal support, 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. In this case, wife failed to present any evidence that would allow the trial court to determine how much income to impute to husband based on the circumstances existing at the time of the hearing. The only evidence wife offered of husband’s potential income was based on employment positions husband had held approximately four or more years prior to the date of the hearing – a time period which, under these circumstances, was too distant to be reflective of husband’s current ability to earn income. Further, the court ruled that husband’s volunteer activities were only relevant with respect to the mental and physical ability to be employed, rather than proof of husband’s current income-earning capacity.
2016---McKenna v. Harple, Va. Ct. of Appeals, Unpublished, No. 1780-15-2
The trial court did not err in imputing to Wife income when Wife had earned as a freelance writer for spousal support purposes twelve years prior to trial. Although Wife testified that she quit her freelance job to earn a more dependable income as a public school teacher, the evidence showed that she voluntarily left the freelance writing position, and that she earned significantly less as a school teacher. Moreover, after becoming a school teacher, Wife received new offers for freelance writing jobs, but did not accept them.
2014---deCamp v. deCamp, 64 Va. App. 137
Although the party seeking spousal support is obligated to earn as much she reasonably can to reduce the amount of the support need, she is not required to return to work immediately upon divorce to avoid judicial imputation of income merely because she has a provable earning capacity at the time of divorce. So long as the spouse seeking support has not unreasonably refused to accept employment, the spouse is entitled to a reasonable time to secure employment.
In determining spousal support, the trial court did not err in refusing to impute income to Wife. The party seeking imputation has the burden of proving that his or her spouse was voluntarily forgoing employment and is required to present evidence sufficient to enable the trial court reasonably to project what amount of income could be anticipated. Here, although the evidence presented established that Wife was a registered nurse, Husband failed to present the trial court with any evidence that employment was available to Wife at the time of divorce or what income she could earn at the time of divorce.
2015---Murphy v. Murphy, 65 Va. App. 581
The trial court did not err in declining to impute income to Mother. Code of Virginia § 20-108.1(B)(3) provides that a trial court may deviate from the presumptive child support guideline amount by imputing income to a party who is voluntarily unemployed or underemployed. However, the statute does not require the court to impute income in every case of voluntary underemployment. In 2006, the General Assembly amended the statute to further provide that a court must consider not only if a party is voluntarily underemployed, but also the good faith and reasonableness of the party’s employment decision. Here, although Mother voluntarily changed her employment to a position with a reduced salary, her reduced salary still provided a generous income, and her new position provided her a more flexible schedule to care for the children.
2015---Niblett v. Niblett, 65 Va. App. 616
The trial court erred by finding that Father’s incarceration constituted voluntary underemployment and then failing to consider evidence of Father’s past earnings when deciding whether his voluntary unemployment should result in deviation from the presumptive guidelines. Although Father’s current income was zero because of his incarceration, Father had previously earned approximately $85,000 per year, and nothing in the record suggested that Father would not have continued to earn the same amount had he not voluntarily decided to commit a criminal act and thus render himself unemployed. Although Virginia Code § 20-108.1(B)(3) permits a court to evaluate the good faith and reasonableness of a party’s voluntary reduction in salary when deciding whether to impute, in this case Father could make no argument that his incarceration was an employment decision undertaken in good faith or was otherwise reasonable. Accordingly, the court was required to consider Father’s recent past earnings when deciding whether to deviate from the presumptive child support amount.
2015--Godwin v. Godwin, Va. Ct. of Appeals, Unpublished, No. 0004-15-1
The trial court properly imputed income to Husband and required him to pay spousal support where Wife presented evidence that Husband frequently quit his jobs during the marriage, was described as an “excellent worker” by his former employer, and had voluntarily quit a job where he had earned $40,000 per year. Husband’s contention that he had back problems and could not work was not supported by reliable testimony.
2013--Manson v. Manson, Va. Ct. of Appeals, Unpublished, No. 1224-13-4
The trial court did not err in finding that Husband’s termination from employment was not involuntary. Though Husband was employed as an attorney, he devoted increasing and significant time to a speculative business venture, which ultimately led to the loss of his job. The trial court determined that Husband’s loss of income resulted from his choice to focus on a speculative investment at the expense of his law practice.
2013---Pliuskaitis v. Pliuskaitis, Va. Ct. of Appeals, Unpublished, No. 0423-13-4
The trial court did not err in finding Husband voluntarily underemployed where Husband was employed twenty hours a week as a trainer despite his excellent credentials as a swim coach. The trial court fully explained its rationale for imputing income of $60,000 to Husband, which included his credentials, experience and past income. The trial court considered Husband’s failure to seek full-time employment in its decision to impute income, particularly in light of his travels to Las Vegas (to see his paramour), and his focus on opening a youth swimming center the following year.
2013---Mancione v. Mancione, Va. Ct. of Appeals, Unpublished, No. 2027-12-3
The trial court did not err in imputing an income of $80,000 to Husband. At the time of trial, Husband was employed as a visiting associate professor of business administration at Emory & Henry College earning $40,000 a year, but held a Masters in Accountancy and law degree, had previously been employed as the president of a Fortune 500 company, an attorney, and a CPA. Wife’s vocational expert testified that Husband could “reasonably expect” to earn between $70,000 and $130,000 a year. Based on Husband’s other work experience, law degree, and CPA certification, the trial court found that the Husband had made the choice to be underemployed in his current position.
2012---Patron v. Furtado, Va. Ct. of Appeals, Unpublished, No. 0719-12-2
The trial court did not err in imputing income to husband at the federal minimum wage. Though husband was unemployed and testified to being disabled, he presented no medical evidence of his disability. Moreover, the Social Security Administration had denied his application for disability on the basis that he was not disabled. Although the trial court acknowledged that husband suffered from a condition that was somewhat debilitating, it noted that he nonetheless had been able to earn some income, and that he had the functional capacity to continue doing so.
2012---Ponnekanti v. Ananthapadmanabhan, Va. Ct. of Appeals, Unpublished, No. 0592-12-4
Trial court did not err by finding that father’s intended relocation to India and the resulting pay cut of approximately $100,000 would render him voluntarily underemployed. Despite father’s testimony that he had always intended to return to India to care for his parents, and his testimony that he would enjoy a better standard of living in India at the reduced pay than he did in Virginia at his current salary, a parent may not purposefully choose to pursue a lower-paying career which operates to the detriment of the children. (citing Payne v. Payne, 5 Va. App. 359, 364 (1987)).
2011---Barrett v. Comm. of Va., DSS, DCSE, Va. Ct. of Appeals, Unpublished, No. 1382-10-3
The trial court did not err in refusing to impute income to mother in a modification proceeding, despite having done so in the initial support proceeding. The imputation of income is a determination made upon a factual finding, and thus, the law of the case doctrine does not apply. Father, on his petition for modification, still had the burden of proving that the mother remained voluntarily underemployed or voluntary unemployed.
2011---Armar v. Armar, Va. Ct. of Appeals, Unpublished, No. 2202-10-4
Trial court did not err in imputing income to husband of $250,000 per year, based on evidence that husband retired seven years early from a position at which he made between $245,000 and $250,000 annually, based on husband’s stipulation that his recent past earnings were approximately $250,000, and based on testimony of a vocational expert that, given husband’s impressive qualifications, he could potentially find employment at the same income level if he sought such employment and obtained a visa from the country in which he obtained work.
The trial court did not err in finding that part of the reduction in husband's earning capacity was not due to any wrongdoing on his part, while simultaneously finding that the remaining reduction in his earning capacity was the result of voluntary underemployment. Husband's income from business conducted in Virginia ceased as the result of the economic downturn, but evidence revealed that he continued to derive some income from operations in Maryland and other states. Furthermore, despite the loss of business in Virginia, husband admitted that he had applied to only four other jobs over the course of the previous year. Thus, the trial court did not abuse its discretion in only partially reducing the amount of income imputed to husband.
2010---Howard v. Howard, Va. Ct. of Appeals, Unpublished, No. 2987-08-2
Trial court did not err in finding wife to be voluntarily unemployed and in imputing income to her, based on evidence that, despite having been a stay-at-home parent throughout most of the marriage, wife had an advanced degree, had held several jobs early in the marriage, and had lost her most recent position due to unsatisfactory performance. Additionally, the court noted that the physical ailments that had burdened wife’s ability to work in the past had begun to improve. The court imputed income to wife at $40,000 per year, which is what she earned at her last position prior to being discharged.
2010---Huston v. Huston, Va. Ct. of Appeals, Unpublished, No. 2808-09-4
Trial court did not err in imputing to wife income that she would earn if she worked full time at minimum wage, where seven of the parties eight children had left the home, wife had previously worked as a child care provider, and was in the process of obtaining certification to become a reading specialist. Despite the fact that wife had home-schooled all children and had been a stay-at-home parent throughout the parties’ 26-year marriage, the trial court noted that she had “stubbornly clung to her role of full-time homemaker and home-school instructor,” and that she must now “become gainfully employed and contribute to her own support.
2010---Broadhead v. Broadhead, Va. Ct. of Appeals, Unpublished, No. 0923-09-2
The trial court did not err in refusing to include income imputed to mother in the baseline guideline calculation, and instead treating the imputed income as a variance factor justifying deviation. While the trial court is required to consider factors such as imputed income in determining whether a deviation is appropriate, the weight it gives to each factor in the overall decision lies within the court’s sound discretion. Deviating from the presumptive guideline amount was meant to involve a reasoned, discerning judgment, not a series of precise adjustments with each deviation factor carrying a mathematical weight. Thus, the trial court properly computed the presumptive guideline amount based on mother’s actual income rather than imputed income, and then properly considered what, if any weight, to give to the imputation of income when determining an appropriate deviation from the presumptive guideline amount.
2009---Tate v. Tate, Va. Ct. of Appeals, Unpublished, No. 2700-08-2
When determining whether to impute income, the court must first determine whether the obligor spouse voluntarily left his/her employment. If so, the inquiry ends, and income can be imputed based on evidence of recent past earnings. However, if the obligor spouse's employment ended involuntarily or with the complaining party's consent prior to the divorce, the spouse seeking imputation must offer evidence of current employment opportunities that the other party is foregoing.
Trial court did not err in imputing income to husband, despite the fact that husband's mother sold the family business at which husband worked, which eliminated husband's job. Evidence indicated that, although husband's mother retained sole ownership and control over the salvage yard, she had very little to do with the day to day operations, relied almost entirely on husband to run the business, and eventually sold the business at husband's recommendation and based on his influence. Court found that the unique business relationship between husband and his mother supported a finding that husband essentially engineered his own job loss by convincing his mother to sell the business. Trial court then imputed income based on husband's bank statements from two years prior to the hearing rather than the most recent prior year, due to the fact that husband's most recent bank statements contained deposits relating to husband's winding up of the business.
2009---Williams v. Williams, Va. Ct. of Appeals, Unpublished, No. 1176-08-2
Trial court erred in not imputing income to wife based on her gift of $114,000 to her adult children. Wife, as payee of spousal support, was obligated to earn as much as he or she reasonably could to reduce the support need (citing Srinivason v. Srinivasan, 10 Va. App. 728 (1990)). By giving that money to her adult children, wife removed that sum as an income-producing asset and must be held accountable for that voluntary reduction in her stream of income.
2009---Butterman v. Butterman, Va. Ct. of Appeals, Unpublished, No. 3007-08-4
Trial court did not err in imputing income to wife despite declaration by the Social Security Administration that wife was disabled enough to qualify for disability benefits. The declaration of the Social Security Administration is not dispositve or whether a trial court may properly impute income to a spouse, (citing O'Hara v. O'Hara, 45 Va. App. 788 (2005)).
2009---Favors v. Favors, Va. Ct. of Appeals, Unpublished, No. 2309-08-1 (March 17, 2009)
Trial court did not err in immediately imputing income to Wife as of the date of the final decree. Court distinguished Wife's situation from that in McKee, noting that in this case, Wife had no children at home, had been separated from Husband for approximately five years, had remained actively involved in church activities since separation, and had stated to her psychologist that she did not want to work because she wanted to continue church activities. Wife had had reasonable time to find employment - thus, immediate imputation of income was upheld.
2008---Broadhead v. Broadhead , 51 Va. App. 170
For purposes of imputing income, the burden of proof is different in modification cases than it is in initial cases. In initial cases, the burden rests on the party seeking to have income imputed to the other party to prove that the other party is underemployed. However, in modification cases, the party seeking to avoid imputation must prove that he should not have his income from a previous job imputed to him. Though the other party is often seeking "imputation" in such a situation, that prayer is, in essence, a request that the current level of support continue, rather than change.
The proper analysis for determining whether a party is underemployed evaluates whether a party is currently voluntarily underemployed, based on the position he currently holds, his income level, the reasonableness of his efforts to find employment, and the availability of other positions at higher income levels, given his education and experience. These factors must be considered in light of the other circumstances surrounding the case, such as the custody arrangements between parties and the ability of a party to obtain a position that allows him to maintain that custody arrangement.
The trial court erred in basing its determination that father was underemployed in his current position solely upon its conclusion that, although he had been involuntarily terminated from the job he held prior to his current position, he had voluntarily left a higher paying that he held at the time of the initial award. Whether father had voluntarily or involuntarily left a prior position does not end the analysis. The trial court was required to consider whether father’s efforts to secure employment closer to his children at a comparable level of income were sufficient to meet his burden to show that he was not currently voluntarily underemployed.
The trial court erred in finding that father voluntarily left employment, where evidence showed that father had been transferred by his employer, against his request, into a role that required experience and expertise that father did not have. After father predictably did not succeed in this position, he and his superiors reached a mutual agreement, given the unavailability of father’s former position, that father should leave so that the company could hire someone with more experience, which husband termed as “an opportunity to leave with dignity.” The company paid father one year of severance, continued to pay his tuition to pursue a master’s degree, and agreed that father was leaving “through no fault of his own.”
2008---Brandau v. Brandau, 52 Va. App. 632
While factors 9, 10, and 11 of Va. Code S20-107.1 are directly relevant to determining whether to impute income to a spouse, these specific factors do not render the more general factors of Va. Code S20-107.1 inconsequential. Whether to impute income also depends, in part, on a conscientious consideration of all factors under Va. Code S20-107.1.
Trial court did not err in refusing to impute income to Wife who, based upon an agreement of the parties, had been a stay-at-home mom of two children throughout the entire marriage; who suffered from a congenital heart condition counseling caution and the need to avoid "at risk" employments; and whose formal education went no further than a high-school degree. Neither Srinivasan nor any other Virginia case has held that, for purposes of calculating spousal support, a stay-at-home spouse capable of working must go to work immediately after the divorce trial or face a judicially imposed imputation of income.
2007---Didio v. Didio, Va. Ct. of Appeals, Unpublished, No. 0204-07-2
Trial court erred in considering proceeds husband received as student loans as income for purposes of support. Nothing in Va. Code § 20-108.2(C) suggests that loans should be considered as income. Imputation of income should be based on factors related to earning capacity, not one’s ability to obtain a loan.
Trial court did not err in finding that husband was voluntarily unemployed despite the parties’ oral agreement before separation that wife would support husband while he earned his veterinary degree. Assuming that wife did make that promise, the agreement was not in writing, and wife was therefore not bound. Thus, husband had no right to rely on wife for income.
2007---Ericson v. Ericson, Va. Ct. of Appeals, Unpublished, No. 2411-06-2
Trial court erred when it failed to calculate the presumptive amount of child support Father owed under guidelines based upon his gross income of $34,200. While the trial court explained in writing its rationale for imputing additional income, this otherwise valid consideration was made before the trial court expressly determined the amount of child support Father owed based upon his actual income. Trial court did not err in denying Father's petition for reduction of child support and imputing to him an annual income of $75,000 where evidence of Father's education, training, experience, and proven capacity to earn more money indicated that he was voluntarily under-employed.
2007---Lesesne v. Zablocki, Va. Ct. of Appeals, Unpublished, No. 0334-06-4
Trial court did err in failing to impute income to Wife where court found that because of the ages of the three children (nine, seven, and six at the time of trial), it was appropriate for Wife to continue to work part-time for at least the next five years. Trial court's decision in refusing to impute income to Wife was not plainly wrong or without credible evidence.
2007---Sandhir v. Sandhir, Va. Ct. of Appeals, Unpublished, No. 2382-06-4
Trial court did not err in imputing income of $125,000 to husband, a physician, and refusing spousal support where the husband was voluntarily under-employed and lacked any physical or mental impairment preventing him from working at his full capacity.
2005---O'Hara v. O'Hara, 45 Va. App. 788
Income imputed to ex-Wife in spousal support case despite a finding of total disability by the Social Security Administration. The amount of income imputed to ex-Wife was based upon an average of her income over the last several years.
2003---Hatloy v. Hatloy, 41 Va. App. 667
Trial court did not err in refusing to find that husband was voluntarily underemployed. Although husband had previously earned a base salary of $55,000 and stock options that afforded him an annual compensation worth approximately $117,000 while working with AOL, he testified to having made diligent efforts to secure like employment in the tech industry after being laid off from AOL, and that his limited educational background had prevented him from securing such employment. Wife did not refute husband’s testimony that there were no jobs available in the tech industry, and did not present evidence that the hospitality industry, which husband had previously worked and had returned to, would pay husband anymore than what husband testified he was currently earning. Although wife argued that husband never produced the documentation to support his efforts to secure employment in the tech industry, the trial court was entitled to accept husband’s testimony as sufficient evidence of those efforts.
2002---Albert v. Albert, 38 Va. App. 284
The burden is on the party seeking imputation to prove that the other parent was voluntarily foregoing more gainful employment, either by producing evidence of a higher-paying former job, or by showing that more lucrative work was currently available.
2001---Joynes v. Payne, 36 Va. App. 401
A party who seeks spousal support is required to earn as much as he or she reasonably can to decrease the amount of support needed. The burden is on the party seeking the imputation to prove that the other parent was voluntarily foregoing more gainful employment, either by producing evidence of a higher-paying former job or by showing that more lucrative work was currently available. The evidence must be sufficient to enable the trial judge reasonably to project what amount could be anticipated.
2000---Rowe v. Rowe, 33 Va. App. 250
Trial court must consider income generating potential of the equitable distribution award.
1999---Blackburn v. Michael, 30 Va. App. 95
Trial court could not impute income to Wife for child support purposes, but not for spousal support purposes.
1998---Niemiec v. Com., Dept. of Social Services, 27 Va. App. 446
Imputation of income by trial court reversed. Mother working part time had been unable to find full time employment.
1997---Layman v. Layman, 25 Va. App. 365
Father was voluntarily unemployed as a result of his incarceration and was therefore not entitled to a reduction in child support.
1997---Commonwealth v. Bowyer, Va. Ct. of Appeals, Unpublished, No. 0071-96-4
Father resigned from employment of seventeen years due to "life threatening" medical problems. Trial court did not impute income and granted four month abatement of child support after Father started his own business. Mother bore the burden to produce evidence sufficient to "enable the trial judge reasonably to project what amount could be anticipated" had Father procured other employment...Mother introduced no evidence concerning Father's earnings at his new business; she did not present evidence to demonstrate that Father was negligent in failing to profit from his new business or that he ignored other available and suitable employment opportunities."
1997---Leiffer v. Leiffer, Va. Ct. of Appeals, Unpublished, No. 1035-96-2
Court may impute income to a party after he has a reduction in income resulting from a voluntary employment decision, even if the decision was reasonable and made in good faith. The party making the change bears the risk of success.
1997---Mansfield v. Taylor, 24 Va. App. 108
Trial court reduced child support, refusing to impute income to Father. Reversed. "[Father's] change of employment constituted either purposeful evasion of his support obligations or such careless disregard for that obligation as to require imputation of income."
"The Supreme Court's analysis in Antonelli makes clear that actions which are either purposefully taken with the desire to evade one's support obligations or which evidence a careless disregard for one's support obligations, can constitute wrong doing sufficient to warrant imputation of income."
1997---Street v. Street, 24 Va. App. 2
Husband/Father closed his business and accepted job with considerably less income due to the deterioration of his mental health. Husband did not prove a change in circumstances that warranted modification of his support obligation.
1997---Thacker v. Thacker , Va. Ct. of Appeals, Unpublished, No. 0371-97-1
For purposes of initial determination of spousal support, income not imputed to Wife who quit job after being abused by superior. Trial court found that Wife was capable of earning more, and that "the amount of spousal support was subject to change if the Wife did not make an effort to increase her income."
1997---Wheaton v. Wheaton, Va. Ct. of Appeals, Unpublished, No. 1323-96-3
Trial court did not abuse its discretion in refusing to impute income to Wife/Mother because the evidence presented by Husband was insufficient to enable the trial court to reasonably project Wife's income. Wife, a licensed nurse, had not worked for five years. Husband presented inadequate expert testimony regarding Wife's employment options and earning capacity. Expert was unable to testify cto a reasonable degree of certaintyc what salary Wife could obtain... No evidence was introduced of specific job openings, the requirements for such provisions, their salaries, or the likelihood that Wife would be hired for a particular nursing position."