COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder and Kelsey
Argued at Chesapeake, Virginia
DONALD DAVIS
MEMORANDUM OPINION * BY
v. Record No. 0758-07-1 CHIEF JUDGE WALTER S. FELTON, JR.
MARCH 18, 2008
LESA ROBINSON
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND
COUNTY OF JAMES CITY
E. Thomas Cox, Judge Pro Tempore
Lawrence D. Diehl (Barnes & Diehl, P.C., on brief), for appellant.
No brief or argument for appellee.
Donald Davis (father) appeals from a judgment of the Circuit Court of the City of
Williamsburg and County of James City (trial court) denying his petition for a reduction or a
termination of spousal support, and its calculation of child support using different income
amounts for each. He also seeks an award of his attorney’s fees and costs on appeal. For the
reasons that follow, we affirm in part, reverse in part, and remand for further proceedings
consistent with this opinion.
I. BACKGROUND
Under familiar principles, “we construe the evidence in the light most favorable to
[mother], the prevailing party below, granting to [her] evidence all reasonable inferences fairly
deducible therefrom.” Northcutt v. Northcutt, 39 Va. App. 192, 195, 571 S.E.2d 912, 914
(2002). So viewed, the evidence established that father and Lesa Robinson (mother) were
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
divorced in December 2004. Two children were born of the marriage, “A,” born in August 1987,
and “B,” born in July 1989. The final decree of divorce awarded the parties joint legal and
shared physical custody of the children, who were to reside with each parent for approximately
fifty percent of the year.
In December 2005, father petitioned the juvenile and domestic relations district court
(district court) seeking a reduction in his spousal support payments as a result of his reduced
employment income. He also sought a reduction in his child support payments as a result of his
reduced employment income and the emancipation of the parties’ older child, A. The district
court denied father’s petition for a reduction in spousal support, but granted his petition for a
reduction in child support. Father and mother each appealed the district court’s decision.
The trial court declined to reduce father’s spousal support. It found that father was
voluntarily underemployed, had failed to reduce his expenses to meet his decreased employment
income, and had earned an unspecified income from real estate investment properties that he did
not include in the gross monthly income figure he provided to the court. The trial court
concluded the decrease in father’s employment income did not constitute a material change in
circumstances to warrant a modification in spousal support.
The trial court granted father’s request to reduce his child support payments, stating in its
letter opinion only that “[t]he parties have agreed there is a 50/50 shared custody arrangement.
The lower Court ruling [that mother must pay father $45 monthly in] child support shall stand.”
The trial court adopted the district court’s child support guideline calculation without further
comment or recalculation.
This appeal followed.
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II. ANALYSIS
A. Father’s Spousal Support Obligation
Father contends the trial court erred in concluding his reduction in employment income
did not constitute a material change in circumstances warranting a modification of his spousal
support obligation, arguing that the trial court erred in (1) finding that he was voluntarily
underemployed, (2) finding that he failed to make a good faith effort to reduce his expenses,
(3) failing to consider mother’s increase in employment income, and (4) failing to adjust
overstated entries in mother’s statement of expenses.
Code §§ 20-108 and 20-109 authorize a court to modify a decree concerning child or
spousal support if the party seeking the modification proves “both a material change in
circumstances and that this change warrants a modification of support.” Schoenwetter v.
Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989). The material change “must bear
upon the financial needs of the dependent spouse or the ability of the supporting spouse to pay.”
Hollowell v. Hollowell, 6 Va. App. 417, 419, 369 S.E.2d 451, 452 (1988). Additionally, a party
seeking a reduction in 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.’” Edwards v. Lowry, 232
Va. 110, 112-13, 348 S.E.2d 259, 261 (1986) (emphasis added).
Thus, in order to prove a material change in circumstances that
justifies a reduction in support, [he] “must establish that he is not
‘voluntarily unemployed or voluntarily under employed.’”
Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119
(1991).
Hatloy v. Hatloy, 41 Va. App. 667, 672, 588 S.E.2d 389, 391 (2003) (quoting Virginia Dep’t of
Soc. Servs. v. Ewing, 22 Va. App. 466, 470, 470 S.E.2d 608, 610 (1996)).
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“Where the trial court’s decision [whether to modify support] is based upon an ore tenus
hearing, its determination will not be disturbed on appeal unless it is plainly wrong or without
evidence in the record to support it.” Schoenwetter, 8 Va. App. at 605, 383 S.E.2d at 30.
Father contends the trial court erred in finding he was voluntarily underemployed. In
December 2004, when the final decree of divorce was entered, father’s monthly income from
employment was $9,821. A computer programmer, he worked as an independent contractor for
Affiliated Computer Services, Inc. (ACS). In July 2005, ACS informed him that it would not renew
his contract, but that it would hire him as an ACS employee, although for less pay than he earned as
an independent contractor. In October 2005, father accepted a position as an ACS employee,
performing the same work and receiving a monthly income of $6,666, contrasted with $9,821
monthly he earned as an independent contractor with ACS.
Father’s ACS manager testified that father’s conversion from independent contractor to
employee status resulted from ACS’s decision to cease using domestic independent contractors,
and to hire more employees and less-expensive independent contractors based in India. She
stated that ACS’s competitors were making similar changes in their hiring practices, although
approximately half of the one hundred independent contractors formerly working for ACS
rejected ACS’s offer to convert to employee status. She also testified that father’s current salary
was at the “high end” of what an ACS-employed programmer with his experience could expect
to earn.
Father testified that he informed a job placement agency in July 2005 that his
independent contractor position would be ending, but “they weren’t able to find anything for
[him].” He conceded that he did not contact that agency a second time or make any other
attempt to find a job that could provide him the same level of income he earned as an
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independent contractor. In December 2005, when father filed his petition seeking modification
of his support obligations, his monthly income from employment remained at $6,666.
Father argues the trial court’s finding that he was voluntarily underemployed was “based
upon a totally speculative assumption . . . that higher paying jobs existed in [father’s]
field . . . and were available, that [father] could be hired for such a position, and that a further
effort would have had positive employment results . . . ” However, father, as the party seeking to
modify the existing court-ordered support obligation based on a reduction in income from
employment, had the burden to prove that he was not voluntarily underemployed. Hatloy, 41
Va. App. at 672, 588 S.E.2d at 391. Although father argues that his testimony, combined with
the testimony of his ACS manager, met that burden, “[i]t is well established that the credibility of
witnesses and the weight accorded their testimony are matters solely within the purview of the
trial court.” Id. at 674, 588 S.E.2d at 392. Credible evidence in the record, including father’s
testimony that, except for one phone call, he made no effort to find a higher-paying job, supports
the trial court’s determination that father was voluntarily underemployed. From the evidence
presented, we conclude the trial court did not err in finding that father was voluntarily
underemployed.
Because father was voluntarily underemployed, he failed to prove a material change in
circumstances sufficient to warrant a reduction in spousal support. Id. at 672, 588 S.E.2d at 391
(party seeking to prove material change in circumstances sufficient to justify reduction in support
must prove he is not voluntarily underemployed). Because we find the trial court did not err in
finding father failed to prove a material change in circumstances warranting a reduction in
spousal support, we need not address whether the trial court also erred in finding that father
failed to reduce his expenses, whether it erred in failing to consider mother’s increase in
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employment income, or whether it erred in failing to adjust overstated entries in mother’s
statement of expenses.
B. Father’s Child Support Obligation
Father contends the trial court erred in its calculation of his child support obligation.
In its letter opinion, the trial court stated, without explanation, that “[t]he lower Court
ruling [that mother must pay father $45 monthly in] child support shall stand.” The record
reflects that the district court’s determination of the parties’ child support obligations was
predicated in part on its factual finding that father was not voluntarily underemployed. Its child
support guidelines worksheet used father’s actual employment income as his gross income.
However, the trial court’s factual finding on de novo review that father was voluntarily
underemployed required it to impute income to him for the purposes of determining the parties’
child support obligations. See Niemiec v. Dep’t of Soc. Servs., 27 Va. App. 446, 451, 499
S.E.2d 576, 579 (1998) (“[E]xcept as provided in Code § 20-108.1(B)(3), a trial court
determining child support is required to impute income to a parent who is found to be voluntarily
underemployed.” (citing Code § 20-108.1(B)(3))).
Additionally, in calculating child support, the trial court was required to include each
party’s income from all sources. See Code § 20-108.2(C) (defining “gross income” for purposes
of Code § 20-108.2 as “all income from all sources”). Although the trial court found that father
received income from his real estate investments, it did not quantify the amount of income father
received, and did not include that income in calculating the parties’ child support obligations.
Additionally, despite the parties’ “50/50 shared custody arrangement” noted by the trial
court in its letter opinion, the parties’ testimony showed that B, the unemancipated child, was not
actually living with father fifty percent of the time pursuant to the final decree of divorce. In
determining child support, Code § 20-108.1(B) requires the trial court to “consider all evidence
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presented relevant to any issues joined in that proceeding,” including the actual custody
arrangement of the parties. See Code § 20-108.1(B)(2).
From the record before us, we conclude the trial court erred in its determination of the
parties’ child support obligations under the child support guidelines.
C. Attorney’s Fees and Costs
Father seeks attorney’s fees and costs on appeal.
The rationale for the appellate court being the proper forum to
determine the propriety of an award of attorney’s fees for efforts
expended on appeal is clear. The appellate court 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.
McGinniss v. McGinniss, 49 Va. App. 180, 190-91, 638 S.E.2d 697, 702 (2006) (quoting
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996)). On consideration
of the record before us, we decline to award father his attorney’s fees and costs incurred on
appeal.
III. CONCLUSION
On the record presented, we conclude the trial court did not err in finding father was
voluntarily underemployed, or in finding that he failed to prove a material change in
circumstances sufficient to warrant a reduction in spousal support. However, we conclude that it
erred in its determination of the parties’ child support obligations under the child support
guidelines by failing to impute income to father based on his voluntary underemployment, failing
to include in its determination of child support the parties’ income from all sources, and in
failing to consider the actual custody arrangement of the parties. Accordingly, we reverse and
remand to the trial court to recalculate the parties’ child support obligations. We also decline to
award father his attorney’s fees and costs incurred on appeal.
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For these reasons, we affirm in part, reverse in part, and remand for further proceedings
consistent with this opinion.
Affirmed in part,
reversed in part
and remanded.
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