Opinion
Record No. 1326-93-4
March 1, 1994
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY H. SELWYN SMITH, JUDGE.
(Albert H. Jacoby, on brief), for appellant.
No brief for appellee.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Susan Rose O'Brien (mother) appeals the decision of the trial court setting the amount of child support she is obligated to pay to Bowen F. Rose, II (father). Upon reviewing the record and opening brief, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.
Mother contends that the trial judge erred (1) in finding that the parties are voluntarily underemployed and imputing income to them; (2) in considering testimony given at an earlier hearing; and (3) by failing to modify mother's child support payment retroactively to the date notice of the request to modify child support was given to father.
On appeal, "we are guided by the principle that decisions concerning child support rest within the sound discretion of the trial court and will not be reversed on appeal unless plainly wrong or unsupported by the evidence." Barnhill v. Brooks, 15 Va. App. ___, ___, 427 S.E.2d 209, 211 (1993).
I.
The trial judge found that mother voluntarily left a teaching position that paid $2,000.00 a month in order to temporarily relocate to Thailand with her new husband. Mother has not appealed the decision to impute income to her for that period of time. She does contest the imputing of income to her when she was unable to find a comparable position upon her return to the United States. She contends that the trial judge erred by imputing income to her in excess of her current salary of $910.00 per month.
"[I]n Antonelli v. Antonelli, 242 Va. 152, 156, 409 S.E.2d 117, 119-20 (1991), the Supreme Court of Virginia held that when one makes a job change to the detriment of one's family, it is not the family who should suffer but the one who made the job change." Cochran v. Cochran, 14 Va. App. 827, 830, 419 S.E.2d 419, 421 (1992). "If the trial judge finds that one of the parties is voluntarily unemployed or underemployed, he or she may impute income to that party after first calculating the presumptive amount of support." Floyd v. Floyd, 17 Va. App. ___, ___, 436 S.E.2d 457, 461 (1993).
The trial judge determined mother's presumptive share of child support under Code § 20-108.2 based upon her actual income, then found that:
both parties admit being under-employed and are attempting to improve their earnings; . . . and . . . based upon the factors found in [Code §§] 20-107.2 and 20-108.1, specifically those heretofore set out in this letter opinion, except that now [mother] is underemployed . . . this Court does find that it would be unjust and inappropriate to award the $196.07 to be paid by Mrs. O'Brien and does, therefore, impute the same salaries that the parties had April 19, 1991, and continues the support from January 26, 1993 at $386.08 per month.
This finding is supported by substantial, credible evidence.
Although the mother sought better paying positions, she was unable to obtain a teaching position comparable to the one she held in Virginia because her application for an Illinois teaching certificate was still pending. Notwithstanding her attempts to obtain a higher paying position, the trial judge was not required to ignore her initial voluntary change in position when determining whether to impute income. Moreover, the evidence proved that the financial needs of the teen-aged children continued to increase each year. While father was also underemployed, he had the additional expenses and a loss of household income due to his second wife's medical retirement.
Therefore, we cannot say that the trial judge erred in imputing income to mother in excess of the amount she was actually earning.
II.
In our earlier decision reversing and remanding this matter to the trial court for further proceedings, this Court directed the trial court to:
identify the presumptive figure, as set out in the guidelines, with which it begins its determination of the appropriate distribution of child support obligations between the parties. It must address what factors, if any, among those set out in Code §§ 20-107.2(2) and 20-108.1 work to rebut that presumptive amount.
O'Brien v. Rose, 14 Va. App. 960, 964, 420 S.E.2d 246, 249 (1992). We noted that "[i]f the trial court's award varies from the presumptive amount, written findings must be made of the reasons why application of the guidelines would be unjust or inappropriate." Id.
The trial court's earlier error was its failure to set out in written findings the presumptive statutory amount of child support from which it began its calculation and the determinative factors which justified a variance from that statutory amount. Rectifying this error did not require the trial court to receive any additional evidence. This was not an instance where the evidence received or the decision reached was so tainted that a de novo trial was required. Cf. Henning v. Kyle, 190 Va. 247, 56 S.E.2d 67 (1949) (erroneous jury instruction required verdict be set aside and new trial conducted). We note, however, that the mother orally moved the trial judge at the January 26, 1993, hearing to consider her new circumstances and that the trial judge granted her request.
Accordingly, the trial court did not err by considering the entire record when it reached its decision.
III.
When this matter was previously before this Court, we stated that "whether to make modification of a support order effective during a period when a petition is pending is entirely within the discretion of the trial court. Its decision in this regard will not be disturbed on appeal absent an abuse of discretion."O'Brien v. Rose, 14 Va. App. at 965, 420 S.E.2d at 249.
The trial judge noted that mother changed her attorney on April 15, 1991, amended her petition on April 19, 1991, and was not present to proceed until April 29, 1991. Mother has not demonstrated that the trial judge abused his discretion by refusing to implement the support modification for the period before May 1991 during which mother's petition was pending.
Accordingly, the decision of the trial court is affirmed.
Affirmed.