Opinion
Record No. 0739-07-1.
January 29, 2008.
Appeal from the Circuit Court of The City of Newport News H. Vincent Conway, Jr., Judge.
Debra C. Albiston (Kaufman Canoles, P.C., on briefs), for appellant.
Kenneth B. Murov for appellee.
Present: Judges Humphreys, Clements and Haley.
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. Introduction
The trial court awarded Barbara McKee (wife) spousal support of $14,000 per month and child support of $1,680 per month. Brian McKee (husband) maintains the trial court erred in setting spousal support by (1) failing to impute income to wife, (2) setting spousal support at a sum unjustified by wife's expenses and his capacity to pay, and (3) including in the spousal support award expenses covered by the child support award. Both parties seek an award of attorney fees associated with this appeal.
We reverse and remand on the first assignment of error, affirm in part and reverse in part on the second assignment of error, and find husband defaulted on the third. We deny attorney fees associated with this appeal.
II. Facts
The parties married on August 22, 1987, in Pittsburgh, Pennsylvania. The marriage produced three children: Sarah McKee, born in June 1990, Colin McKee, born in September 1992, and Bryce McKee, born in April 1994. The parties separated on April 3, 2004, and wife filed a complaint seeking divorce on July 13, 2004.
The parties entered into a property settlement agreement on November 11, 2005. Wife received the home free of any claim by husband and in exchange promised to refinance the $200,000 mortgage. Wife agreed to "indemnify and hold Husband harmless from any liability therefrom." Also relevant here is that husband had contributed money to an IRA with Smith Barney and a profit sharing plan.
The circuit court held a support hearing on November 28, 2005. In relevant part, the evidence revealed as follows.
Husband has worked as an ophthalmologist for seventeen years. Husband listed his adjusted gross income at $351,652 per year, his net monthly income at $20,034, and his monthly expenses at $13,540. Notably, his expenses included a $5,000 mortgage monthly payment on a million dollar home he purchased after the parties separated.
Wife had no income and listed her monthly expenses at $12,213 and the children's at $2,219. Wife acknowledged she had not actually spent money for many of the expenses she claimed. For example, she listed a furniture expense of $300 per month, but testified she had not purchased any furniture. A car payment of $627 per month was included, but wife testified she did not make any car payments. Wife included the cost of an accountant and a financial advisor, which combined cost $60 per month, but testified she had not hired either one. Wife listed $750 per month for savings, but admitted she did not save that much. Wife reconciled these claimed expenses by maintaining they were consistent with her prior marital lifestyle.
When wife refinanced the $200,000 debt on the marital home, in accordance with the property settlement agreement, she also borrowed an additional $50,000. She planned to use $35,484 of this to fund home repairs and personal savings. Wife's mortgage payment with the extra $50,000 was $1,500 per month.
Wife ceased working in 1991 when she became pregnant with the parties' second child. Wife possesses significant professional qualifications. She has a bachelor's degree in biology and psychology from the University of Pittsburgh, a master's degree in public administration from the University of Kentucky, and an associate's degree in respiratory therapy. Wife last worked as a respiratory therapist. Wife enjoys favorable physical health, participating in twice weekly exercise classes and tennis. Wife acknowledged her physical ability to work at the hearing before the circuit court by her admission that she has applied for positions as a substitute teacher. At the time of the hearing, over two years ago, all of the parties' children were in school, with the youngest, then eleven, in the sixth grade.
Husband offered Frances Charles DeMark, Jr. as an expert in the field of rehabilitation counseling. Wife's counsel stipulated as to his expertise. DeMark examined wife's vocational profile to understand the positions she could obtain in the job market and her earning capacity. He used a number of resources, including two publications by the United States Department of Labor, a vocational computer program, an information system produced by Virginia Tech regarding Virginia employment, information produced by the Virginia Employment Commission, local newspapers, and the internet. DeMark also conducted a personal interview with wife. DeMark recognized wife's last job was as a respiratory therapist in 1991. He opined that wife could obtain a position as a respiratory therapist. In response to questioning regarding the availability of these positions, he identified employers with openings in wife's region. DeMark testified respiratory therapists usually earn between $40,000-$52,000 per year. He also stated that even if wife's working hours were limited to when her children were at school, she could find part-time employment in that field. DeMark concluded that in his opinion wife's "earning capacity on a very conservative bases [sic] would be in the range of $30,000 to $40,000" for full time employment.
Indeed, DeMark testified as to a position as a respiratory therapist at the local V.A. hospital posted on the internet on November 21, 2005, one week before the evidentiary hearing, and an advertisement seeking respiratory therapists at three local hospitals from the newspaper of the day preceding the hearing.
With respect to the imputation of income, the trial court stated as follows:
I don't think the expert has enough documentation to say that those things are readily and easily available and suitable, and I also don't think it's required. This is not a case of imputed income so much as it is some sort of challenge that you are voluntarily underemployed or unemployed, and that law imposes a duty upon you to be employed.
I don't think that's what the law is.
The circuit court also addressed the expenses wife sought as a portion of her claim for spousal support. Concerning the award of spousal support, the circuit court first addressed wife's mortgage payment on the marital home and whether wife could receive spousal support for this expense. The court stated:
I think it's unfair in negotiations to say I want the house; I want the house, and then come into court and say, Judge, I can't afford the house. The answer of the Court may be, well, sell it. But the other spouse does not have to pay for it as well as transfer the asset.
But that's not what's occurring in this case. I think the $1,500, as a matter of fact, even when increased, is probably not unreasonable to house four people. If we take that house out of this, and put you trying to find a four bedroom, or a three bedroom, other accommodations, I'm not so sure that you would still not be paying in that area if it's decent and consistent with the standard that you've been accustomed too.
I would say that on average you could not occupy a house of that square footage and qualify for $1,500. So I'm not so sure that that amount — I'm not sure that you're asking your husband to contribute so that you can pay for that asset. You are asking him to contribute to your home-care expenses which would be incurred by you regardless of any particular asset.
The court further noted that a portion of wife's expenses were "estimates" and that she needed to apply "a sharper pencil" to the family budget.
The court found wife's appropriate monthly expenses to be slightly under $12,000, and to compensate for income taxes on a spousal support award in that amount, granted a final award of $14,000. The court set child support of $1,680 monthly. The divorce decree, entered on May 11, 2006, incorporated the terms of this award. A separate final decree, also incorporating the terms of the award, was entered on March 19, 2007.
Apparently the only difference in the two decrees was that the second decree formally grants a divorce, whereas the first did not (in spite of the title "Decree of Divorce"), and that the first decree retained jurisdiction to determine husband's motion to reconsider the spousal support award, as well as other matters related to implementing the court's decisions.
III. Analysis
Code § 20-107.1(C) provides that a court "may decree that maintenance and support of a spouse be made in periodic payments for a defined duration, or in periodic payments for an undefined duration, or in a lump sum award, or in any combination thereof." The law intends to "provide a sum for such period of time as needed to maintain the spouse in the manner to which the spouse was accustomed during the marriage, balanced against the other spouse's ability to pay." Blank v. Blank, 10 Va. App. 1, 4, 389 S.E.2d 723, 724 (1990). Any award of spousal support "'must be based upon the circumstances in existence at the time of the award.'" Barker v. Barker, 27 Va. App. 519, 528, 500 S.E.2d 240, 244 (1998) (quoting Payne v. Payne, 5 Va. App. 359, 363, 363 S.E.2d 428, 430 (1987)). Courts may not base spousal support on "an uncertain future circumstance." Jacobs v. Jacobs, 219 Va. 993, 995-96, 254 S.E.2d 56, 58 (1979).
Circuit courts have significant discretion in awarding and determining the amount of spousal support. Brooks v. Brooks, 27 Va. App. 314, 317, 498 S.E.2d 461, 463 (1998). We uphold the circuit court "absent a clear abuse of discretion." Lambert v. Lambert, 10 Va. App. 623, 628, 395 S.E.2d 207, 210 (1990). Where the circuit court has held an ore tenus hearing, the circuit court's decision must be "'plainly wrong or without evidence in the record to support it'" for this Court to reverse. Furr v. Furr, 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992) (quoting Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989)).
A. Whether the Circuit Court Erred in Declining to Impute Income to Wife
Husband argues that a party seeking support has a duty to earn income to offset the amount the payor spouse must provide. Husband maintains he provided uncontradicted expert evidence that jobs exist consistent with wife's skills and compatible with her preferred working hours. Wife contends she is entitled to lead the lifestyle she was accustomed to during the marriage and this involves staying home and working as a homemaker.
In determining the parties' income for spousal support purposes, "a court may impute income to a party who is voluntarily unemployed or underemployed." Calvert v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875, 876 (1994). This may include the party seeking support.Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990). "This conclusion flows logically from the principle that one who seeks spousal support is obligated to earn as much as he or she reasonably can to reduce the amount of the support need." Id The supported spouse "may not choose a low-paying position that penalizes the [payor] spouse." Konefal v. Konefal, 18 Va. App. 612, 614, 446 S.E.2d 153, 154 (1994). Factors for a court to consider include a party's "earning capacity, financial resources, education and training, ability to secure education and training, and other factors relevant to the equities" of the spouses. Joynes v. Payne, 36 Va. App. 401, 421, 551 S.E.2d 10, 19 (2001).
The party requesting an imputation of income "has the burden of proving that the other party is voluntarily foregoing more gainful employment." Blackburn v. Michael, 30 Va. App. 95, 102, 515 S.E.2d 780, 784 (1999). The requesting party may meet this burden by showing "evidence of a higher-paying former job or by showing that more lucrative work was currently available." Niemiec v. Dep't of Social Services, 27 Va. App. 446, 451, 499 S.E.2d 576, 579 (1998). "The evidence must only enable the trial judge reasonably to project what amount could be anticipated." Hur v. Va. Dep't of Soc. Servs. Div. of Child Support ex rel. Klopp, 13 Va. App. 54, 61, 409 S.E.2d 454, 459 (1991). Nevertheless, the law permits a spouse unemployed at the time of separation a reasonable period to locate employment. Bruemmer v. Bruemmer, 46 Va. App. 205, 209, 616 S.E.2d 740, 742 (2005).
Although the law typically requires a spouse capable of work to seek employment, we have recognized that under some circumstances a homemaker may choose to remain at home and yet avoid imputation of income.Bennett v. Dep't of Social Services, 22 Va. App. 684, 692, 472 S.E.2d 668, 672 (1996). Nonetheless, a court may impute income where "(1) the evidence reveals that the child or children are in school, or (2) child care services are available and the cost of such child care services may be determined." Brody v. Brody, 16 Va. App. 647, 650, 432 S.E.2d 20, 22 (1993). All three of wife's children were in school at the time of the hearing, with the oldest being fifteen and the youngest being eleven.
Wife has a duty to earn money to reduce husband's spousal support obligation. Srinivasan, 10 Va. App. at 734, 396 S.E.2d at 679. Husband presented evidence wife has the ability to earn at least $30,000 per year. See Hamel v. Hamel, 18 Va. App. 10, 12-13,441 S.E.2d 221, 222-23 (1994) (holding that where the uncontradicted evidence showed the wife voluntarily quit her job, the circuit court erred in not imputing income). Wife has numerous college degrees in various fields. She has no physical limitations precluding or limiting her capacity to work. The husband's expert testified as to the immediate availability of jobs as a respiratory therapist at four local hospitals. In short, the evidence demonstrates wife "is an educated woman who is now well equipped to earn her own livelihood." Baytop v. Baytop, 199 Va. 388, 395, 100 S.E.2d 14, 19 (1957). Although the law permits a reasonable time from separation for a spouse to find a job, Bruemmer, 46 Va. App. at 209, 616 S.E.2d at 742, the hearing in this case occurred nineteen months after the parties separated.
As quoted above, and further detailed below, we find the trial court's conclusion as to the law governing imputation of income to be error. Accordingly, since that error mandates a remand, we do not address here the sufficiency of the evidence on that issue.
Contrary to the dissent's assertion, we conclude a fair analysis of all of the trial court's statements on the subject demonstrates an erroneous understanding of the law regarding imputation of income. To again quote the trial court's summation:
I don't think the expert has enough documentation to say that those things are readily and easily available and suitable, and I also don't think it's required. This is not a case of imputed income so much as it is some sort of challenge that you are voluntarily underemployed or unemployed, and that law imposes a duty upon you to be employed.
I don't think that's what the law is.
As noted, "one who seeks spousal support is obligated to earn as much as he or she reasonably can to reduce the amount of the support need."Srinivasan, 10 Va. App. at 734, 396 S.E.2d at 679.
Applicable here is our analysis in Shooltz v. Shooltz, 27 Va. App. 264, 498 S.E.2d 437 (1998), where we reversed and remanded. We stated: "The trial court's error of law with respect to its discretion to reopen the hearing was itself an abuse of discretion. As the Supreme Court has recognized, a trial court 'by definition abuses its discretion when it makes an error of law.'" Id. at 271, 498 S.E.2d at 440-41 (quoting Koon v. United States, 518 U.S. 81, 100 (1996)).
This proposition — that an application of an erroneous legal standard ipso facto constitutes an abuse of discretion — has been repeatedly applied by this Court. See, e.g., Scott v. Commonwealth, 48 Va. App. 401, 423, 632 S.E.2d 12, 22-23 (2006); Bomar v. Bomar, 45 Va. App. 229, 236, 609 S.E.2d 629, 632 (2005); Mina v. Mina, 45 Va. App. 215, 222, 609 S.E.2d 622, 626 (2005); Lanzalotti v. Lanzalotti, 41 Va. App. 550, 554, 586 S.E.2d 881, 883 (2003). Accordingly, we do not find persuasive the dissent's conclusion that the trial court did not "abuse its discretion by failing to impute income to [wife]," because the application of any erroneous legal standard by definition constitutes an abuse of discretion.
B. Whether the Circuit Court Abused Its Discretion by Setting Spousal Support at an Amount Unjustified by Wife's Expenses and in Excess of Husband's Ability to PayHusband first argues the circuit court erred in granting spousal support based on wife's mortgage payment. He contends that since wife received the marital home in the parties' property settlement agreement and promised to hold him harmless for the debt, she should not receive spousal support for this expense.
Applicable here is this Court's discussion in Gamble v. Gamble, 14 Va. App. 558, 577, 421 S.E.2d 635, 646-47 (1992). This Court stated:
In addition, we take this opportunity to note that the requirement that the chancellor consider "the standard of living established during the marriage" pursuant to Code § 20-107.1 is not also an authorization to fix a spousal support award so that the receiving spouse can satisfy outstanding debts on the marital property conveyed to that spouse pursuant to Code § 20-107.3. The outstanding obligations on marital property are properly considered when Code § 20-107.3 determinations are made and the marital wealth is equitably distributed. The same obligations are not to be factored again into the Code § 20-107.1 determination. In short, the appropriate separation between considerations of spousal support and considerations of an equitable distribution of marital wealth prevent a "double dip" by a spouse who seeks and receives encumbered marital property under Code § 20-107.3 and also seeks and receives spousal support under Code § 20-107.1.
Id.
Wife received the marital residence in the parties' property settlement agreement. Wife agreed to "be solely responsible" for the mortgage payment and to "indemnify and hold Husband harmless from any liability." In order to effectuate this, the agreement provided wife would re-finance the debt encumbering the home.
Given this agreement, the circuit court erred in holding husband could be made to pay for wife's mortgage payment in spousal support. The debt on the marital property received consideration in the parties' agreement when wife received the marital home and in exchange agreed to assume the debt. The court's statement that husband could be made to pay for wife's housing payment as part of "home-care expenses," as stated above, contradicted our precedent of Gamble.
Husband also contends wife improperly sought spousal support for a number of expenses she either did not have or failed to document. He argues the circuit court's award of spousal support based on these numbers represents an abuse of discretion. We have held the "party seeking spousal support bears the burden of proving all facts necessary for an award." Robbins v. Robbins, 48 Va. App. 466, 484, 632 S.E.2d 615, 624 (2006).
The allegedly improper expenses appear on the income and expense sheet wife submitted to the circuit court. Husband complains about the listed expenses of an automobile payment ($627), savings ($750), repairs included in wife's refinanced mortgage ($250-$300), repairs and yard maintenance concerning the marital home ($660), groceries ($950), meals out ($300), gasoline ($345), the cable bill ($186), and a CPA and financial advisor ($60).
Examination of the evidence before the circuit court reveals wife failed to present sufficient evidence to sustain her burden regarding any of the above expenses and, therefore, the circuit court erred in granting spousal support based on them. Wife testified she did not have an automobile payment. While she testified a new car would be necessary in the future to maintain her standard of living consistent with that achieved during the marriage, she presented no evidence that $627 represented an appropriate figure. Concerning savings, although husband contributed money to an IRA with Smith Barney and a profit sharing plan, wife failed to present evidence that $750 per month represented an appropriate level of savings under the marital lifestyle. Regarding the monthly home maintenance expenses, wife did not provide receipts, bills, or estimates. Accordingly, the court was left with nothing but her unsubstantiated assertions. Wife admitted during her testimony that her alleged costs for groceries and meals out were excessive, stating: "That sounds outrageous, doesn't it?" The circuit court acknowledged wife's alleged gasoline and cable expenses were excessive, and wife likewise submitted no evidence as to their actual existence. Finally, while wife may need a CPA and a financial advisor sometime in the future, she presented no evidence about how much they would cost aside from her own assertions. Accordingly, wife failed to meet her burden regarding these expenses and the circuit court erred in considering them in the spousal support award.
Husband further argues the circuit court failed to consider his ability to pay the amount of spousal support awarded. He states he has net income of $20,034 per month and expenses of $13,094 per month. Yet the circuit court ordered him to pay spousal support of $14,000 per month, child support of $1,680 per month, and private school tuition of $429.50 per month. He argues the difference would not leave sufficient income to cover his expenses. Wife argues husband's analysis does not consider the tax savings to husband of paying spousal support. Wife also notes husband purchased a million dollar home and so clearly has assets available.
Husband's argument ignores the tax consequences of paying spousal support to wife. The circuit court was required to consider the tax consequences of spousal support to both husband and wife when awarding support. Code § 20-107.1(E)(13). Husband's income and expense sheet showed him to have gross pay of $29,304 per month. Payment of federal and state tax, along with life insurance and disability insurance, left a net income of $20,034 per month. Husband listed total expenses of $13,094 per month. This leaves a $6,940 balance. Yet the law provides a person paying spousal support receives a deduction in the amount of the support. 26 U.S.C. § 215(a). The spousal support becomes taxable income to the receiving spouse. Preston v. Comm'r. 209 F.3d 1281, 1282-83 (11th Cir. 2000). Husband presented an exhibit showing that under the $14,000 award, his net payment, after tax savings of $5,394, was actually $8,606 per month. Thus, husband retains $12,334 net of his claimed expenses.
Husband's brief addresses the relevance of tax consequences in spousal support analysis and cites the appropriate code section, but does not acknowledge the tax benefits to husband.
Husband's expense sheet listed $13,540 in monthly expenses. However, husband acknowledged in his brief that if wife paid half of private school tuition for the couple's children the expenses would only amount to $13,094.
Even though husband ostensibly lacks funds to meet his support obligations once tax savings receive consideration, the circuit court could properly find husband's purchase of a million dollar home for which he pays $5,000 per month unreasonable given his support obligations. The marital home where wife and the three children live has a value of $875,000. The circuit court stated that it did not "understand why he committed to this million dollar home right after separation before this was resolved . . . he has to remember that his first obligation would be to his family." The circuit court did not abuse its discretion in this regard.
Husband also argues the circuit court impermissibly speculated on what his income would be in the future when it was required to consider current circumstances. Having determined the circuit court did not err based solely on the present income and expense sheet submitted by husband, the Court finds it unnecessary to consider this argument.
C. Whether the Circuit Court Erred in Awarding Wife Spousal Support for Expenses Included in the Child Support Award
Husband claims the spousal support award includes expenses covered by the child support award. For the following reasons, we hold this argument waived by procedural default.
Parties assigning error to a circuit court must state their objection "with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice." Rule 5 A: 18. We "will not consider an argument on appeal which was not presented to the trial court." Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). The bare statement that a party has "seen and objected" to a ruling does not suffice.Courembis v. Courembis, 43 Va. App. 18, 26, 595 S.E.2d 505, 509 (2004).
On appeal, this Court considers only arguments raised in an appellant's questions presented. Cirrito v. Cirrito, 44 Va. App. 287, 309, 605 S.E.2d 268, 278 (2004). The questions presented must contain "a clear and exact reference to the page(s) of the transcript, written statement, record, or appendix where each question was preserved in the trial court." Rule 5A:20(c).
Appellants must fully develop their legal arguments in their opening brief for the Court to consider them. Roberts v. Roberts, 41 Va. App. 513, 527, 586 S.E.2d 290, 297 (2003). The brief must contain "[t]he principles of law, the argument, and the authorities relating to each question presented." Rule 5A:20(e). "Statements unsupported by argument, authority, or citations to the record do not merit appellate consideration. We will not search the record for errors in order to interpret the appellant's contention and correct deficiencies in a brief." Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). Finally, arguments raised for the first time in a reply brief are waived. Jeter v. Commonwealth, 44 Va. App. 733, 740-41, 607 S.E.2d 734, 737 (2005).
In this case, husband's third question presented stated as follows:
Whether the trial court erred in including in the spousal support award 100 percent of Wife's claimed housing mortgage debt, utilities, automobile expenses, and other household expenses when the child support award based upon the presumptive guideline amount reflects consideration of a portion of Wife's housing costs and other expenses.
The question plainly asks whether the circuit court erred in granting wife spousal support for all of her mortgage, utilities, and car expenses because the child support award partially considered these expenses. The body of husband's argument continued with this question and argued error since "the presumptive guideline amount [of child support] reflects consideration of housing costs and other expenses." In compliance with Rule 5A:20(c), husband's brief cited to the appendix in the questions presented. Husband cited appendix pages 343-57 and 355 in support of question three.
Appendix pages 343-57 contain husband's motion to reconsider the circuit court's ruling on spousal support. On page 355, husband argues the circuit court erred in granting spousal support for wife's housing expenses. However, he assigns error not because the child support award considered those expenses, but because those expenses received consideration in the parties' property settlement agreement. Husband also maintained this position during oral argument before the circuit court. This represents an entirely different argument than that addressed in the question presented and husband's appellate brief. Furthermore, page 355 contains no mention of "utilities, automobile expenses, and other household expenses." It pertains solely to the debt on the marital residence.
Since husband did not raise the issue in question presented three before the circuit court, he has waived any arguments under it. Rule 5A: 18. Furthermore, husband may not rely on his property settlement agreement arguments made before the circuit court because the question presented here concerns a different issue.Cirrito, 44 Va. App. at 309, 605 S.E.2d at 278. While husband's reply brief addresses the property settlement agreement contentions, arguments made for the first time before this Court in a reply brief are waived.Jeter, 44 Va. App. at 740-41, 607 S.E.2d at737.
The Court notes husband raised the child support issue in his objections to the March 2007 final decree. Husband stated he objected "on grounds that the court's award improperly considered expenses that were or should have been included in the child support award," but did not elaborate. We held an argument waived under similar facts in Budnick v. Budnick, 42 Va. App. 823, 843, 595 S.E.2d 50, 60 (2004). The Court there stated the husband "never raised this argument in his motion to the trial court to reconsider its various judgments. While he noted this objection in his exceptions to the final decree after it was entered, he failed to specify any basis for his objection." Id The Budnick Court held the argument defaulted under Rule 5A: 18.Id. Likewise, this Court holds husband's bare notation of an objection to the March 2007 final decree insufficient to preserve an appeal.
Husband did not raise this issue in his objections to the divorce decree entered in May 2006.
Accordingly, we hold question presented three barred from our consideration by Rule 5A:18.
D. Whether to Award Attorney Fees and Costs to Either Party
Both parties move for an award of attorney fees and costs associated with this appeal. This Court has noted that it "has the opportunity to view the record in its entirety and determine whether the appeal is frivolous or whether other reasons exist for requiring additional payment." O'Loughlin v. O'Loughlin. 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). The issues in this case were complex, and neither party has fully prevailed. We find it appropriate that the parties bear their own costs and attorney fees.
IV. Conclusion
As to issues not defaulted, (1) we reverse and remand for a redetermination of spousal support, if any, applying the correct legal standard as to imputation of income, (2) we reverse the trial court's inclusion of expenses for which wife failed to present sufficient evidence, as detailed above, including housing costs, and (3) we affirm the trial court's determination as to husband's capacity to pay support. Both parties' requests for attorney fees associated with this appeal are denied.
Affirmed in part,
reversed in part,
and remanded.
I concur with the majority's holding and analysis with respect to all issues presented with the exception of its holding that the circuit court abused its discretion by failing to impute income to Barbara McKee. I therefore respectfully dissent from that portion of the majority opinion because I believe that the circuit court's refusal to impute income was not plainly wrong. I would therefore affirm its decision with respect to this issue.
"A court may under appropriate circumstances impute income to a party seeking spousal support." Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990). "The decision to impute income is within the sound discretion of the trial court and its refusal to impute income will not be reversed unless plainly wrong or unsupported by the evidence." Blackburn v. Michael 30 Va. App. 95, 102, 515 S.E.2d 780, 784 (1999). Moreover, "[o]n appeal, we construe the evidence in the light most favorable to the prevailing party below, granting to that evidence all reasonable inferences fairly deducible therefrom."Wright v. Wright, 38 Va. App. 394, 398, 564 S.E.2d 702, 704 (2002).
Generally, "one who seeks spousal support is obligated to earn as much as he or she reasonably can to reduce the amount of the support need."Srinivasan, 10 Va. App. at 734, 396 S.E.2d at 679. However, 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." Id Furthermore, in determining whether to impute income, the circuit 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." Id at 735, 396 S.E.2d at 679 (quoting Young v. Young. 3 Va. App. 80, 81-82, 348 S.E.2d 46, 47 (1986)).
The majority holds that the circuit court applied "an erroneous legal standard" in refusing to impute income to wife. In doing so, the majority quotes a portion of the circuit court's holding on the issue. However, the majority ignores the rest of the circuit court's holding in which the court goes on to say:
I'm not saying that [wife] shouldn't try to work and that that wouldn't be helpful for your mind and give you some challenges, and that you shouldn't look forward to that, but I'm not sure that the law says the moment your husband leaves the wife has to go to work, under these circumstances.
* * * * * * *
The obligations and the resources of the parties, that each of you has done in this marriage make it so that [husband] should understand that while he may leave, the responsibilities to the three children and the wife remain for a reasonable length of time. I can't predict . . . what is going to happen in the future, and I think it would be unwise to do. All I can do is make my best decision today.
(Emphasis added). Thus, when reading the circuit court's entire statement in context, it is clear that it did not hold that wife never has to return to work. The court merely held, consistent withSrinivasan, that the law does not require wife to return to work immediately in order to avoid the imputation of income. Rather, husband's responsibilities to his wife of seventeen years who, by mutual agreement, had not worked in fifteen years "remain for a reasonable length of time." Thus, based on present circumstances and not "what is going to happen in the future," the circuit court held that wife's failure to secure employment did not require the imputation of income. Thus, in my view and contrary to the majority's assertion, the circuit court did not apply an erroneous legal standard.
Having concluded that the circuit court applied the proper legal standard, I would address whether the circuit court did not abuse its discretion by refusing to impute income to wife. I would hold that it did not. "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." Jovnes v. Payne, 36 Va. App. 401, 421, 551 S.E.2d 10, 19-20 (2001). Thus husband, as the party seeking the imputation, was required to present evidence "sufficient to enable the trial judge reasonably to project what amount [of income] could be anticipated." Id at 421, 551 S.E.2d at 20. Husband had the burden to prove that "more lucrative work was available" to wife and the amount of income she could reasonably earn.
In support of husband's position, Frances Charles DeMark, Jr. ("DeMark"), a "vocational expert," testified regarding wife's earning capacity. He estimated that the annual earnings of respiratory therapists range from $40,000 to $52,000. DeMark testified that he had easily located advertisements of current openings for respiratory therapists at various hospitals in the area. He also stated that he "would imagine that there's [sic] also some openings in doctor's offices." DeMark concluded that wife could earn at least $30,000 to $40,000 per year working as a full-time respiratory therapist. However, he conceded that, in order to care for her three children before and after school, as she did while married, wife would only be able to work part-time. DeMark did not testify as to whether part-time work is available to a respiratory therapist, nor did he provide any specific information about the availability of jobs or wife's salary potential outside the field of respiratory therapy.
In contrast, wife testified that, although she is a registered therapist, she is not licensed to practice respiratory care in Virginia. She explained that when she worked as a respiratory therapist previously, Virginia did not require licensure. She testified further: "Today I believe continuing education credits and liensure is required [to practice respiratory care]." When asked about the licensure issue, DeMark testified that he did not know whether wife would have to become licensed or complete continuing education courses in order to work as a respiratory therapist. When asked, "Did you check to see what the education requirements were for somebody who had not worked for 14 years?," DeMark responded simply "No."
Wife also testified that she had applied to work as a substitute teacher in the public school system and was "on the list" to substitute at her children's private school.
At the conclusion of the hearing the circuit court ruled on husband's request that the court impute income to wife. The court stated:
I mean, it's somewhat incredible to think that you can be out of the job market for the length of time that [wife has], and get a job earning 45 to 55, 60 thousand dollars a year. I mean, that would be the most remarkable thing I could imagine right now. I mean it's just not — I mean, I can see you working somewhere, but the market is simply not that. I don't think the expert has enough documentation to say that those things are readily and easily available and suitable, and I also don't think it's required.
* * * * * * *
I'm not saying that [wife] shouldn't try to work . . . but I'm not sure that the law says the moment your husband leaves the wife has to go to work, under these circumstances.
Consequently, the circuit court refused to impute income to wife and granted her spousal support.
I would hold that the circuit court was not plainly wrong in holding husband failed to carry his burden for two primary reasons.
First, husband did not present any credible evidence that wife was voluntarily unemployed or of wife's earning potential. Husband presented only one witness, DeMark, to testify regarding wife's job prospects. After listening to DeMark's opinions about wife's earning capabilities, the circuit court specifically found that DeMark's assessment was "somewhat incredible." Referring to DeMark's predictions, the circuit court stated, "I mean, that would be the most remarkable thing I could imagine right now. . . . I don't think the expert has enough documentation to say that those things are readily and easily available and suitable." "The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented."Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). Husband had the burden of proving that wife was voluntarily foregoing employment. He presented one witness, and the circuit court found that witness' testimony was not credible. Husband offered no other evidence of wife's earning potential. Thus, the circuit court did not abuse its discretion by holding that husband did not meet his burden of proof.
Second, even if the circuit court had believed DeMark's testimony, it was largely irrelevant because the evidence is indeed uncontradicted that wife is not licensed in Virginia as a respiratory care provider. The only job openings and potential salaries that DeMark specifically testified to were job openings and salaries for respiratory therapists. However, wife is not eligible to work as a respiratory therapist because she is not licensed to do so. It is "unlawful for any person not holding a current and valid license from the State Board of Medicine to practice as a respiratory care practitioner." Code § 54.1-2955. Although wife previously worked as a respiratory therapist, she did so before Virginia required respiratory therapists to be licensed.
Code § 54.1-2955 was amended to its current version in 1998. Prior to 1998, the statute did not require that a person be licensed in order to practice respiratory care. It merely forbid uncertified persons from using certain professional titles. Specifically, it stated:
It shall be unlawful for any person not holding a current and valid certificate from the State Board of Medicine to claim to be a respiratory therapy practitioner or to assume the title "Respiratory Therapist," "Respiratory Therapist Registered," "Certified Respiratory Therapist," "Respiratory Therapist Practitioner," "Respiratory Practitioner," or "Certified Respiratory Therapy Practitioner," or any similar term or to assume the designations "R.T.," "R.T.R.," "CRT," "R.T.P.," "R.P." or "C.R.T.P." However, a person who has graduated from a duly accredited educational program in respiratory therapy shall be exempt from the preceding prohibition until he has taken and received the results of an examination required by the Board or until one year from the date of graduation, whichever occurs sooner. This section shall not be construed to prohibit any person from claiming to practice respiratory therapy using the title "Respiratory Therapy Assistant, R.T.A." or other titles licensed or certified by the Commonwealth.
Thus, even if DeMark was correct that jobs are available for respiratory therapists, it is irrelevant because wife is not currently able to practice that profession. Because wife is not eligible for any of the jobs that husband presented evidence about, husband did not meet his burden of proving that "more lucrative work was currently available" to wife. Joynes, 36 Va. App. at 421, 551 S.E.2d at20.
In determining whether to impute income, the circuit court "must look to current circumstances and what the circumstances will be within the immediate or reasonably foreseeable future." Srinivasan, 10 Va. App. at 735, 396 S.E.2d at 679. Wife cannot legally work as a respiratory therapist because she is not licensed as such. She is currently trying to find employment that will not interfere with her maternal responsibilities. She has applied to be a substitute teacher in the public school system and has placed her name on the list of substitute teachers at her children's private school. The circuit court found that husband failed to meet his burden to prove she is voluntarily unemployed, and the record supports a conclusion that he presented no relevant evidence of how much she can currently earn. Under these circumstances, I cannot join the majority in holding that the circuit court was plainly wrong or abused its discretion in refusing to impute income to wife. See Theismann v. Theismann, 22 Va. App. 557, 573, 471 S.E.2d 809, 817 (holding that the circuit court did not abuse its discretion in refusing to impute income to a spouse where the spouse "had made preliminary efforts at reentering the workforce and that she had not refused any offers of employment"), aff d on reh'g en banc, 23 Va. App. 697, 479 S.E.2d 534 (1996).
For these reasons, I do not believe that the circuit court abused its discretion by refusing to impute income to wife. I would therefore affirm its decision with respect to that issue.