Mir v. Mir

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Overton
Argued at Alexandria, Virginia

YOSUF MIR
OPINION BY
v. Record No. 0099-02-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
OCTOBER 29, 2002
ZARLASHT MIR

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
R. Terrence Ney, Judge

James B. Toohey for appellant.

Rebecca R. Masri (Law Offices of Earl E.
Shaffer, on brief), for appellee.

In this domestic appeal, husband contends the trial court

erred in (1) its equitable distribution award, (2) improperly

imputing income to him, (3) the resulting deviation from the

presumptive amount of child support, and (4) the award of

attorney's fees. We hold that the trial court did not abuse its

discretion in making the equitable distribution award or the

award of attorney's fees. We further hold that the trial court

erred in determining the amount of income imputed to husband and

the amount of child support awarded. Thus, we reverse and

remand for an award consistent with this opinion.

Background

"On appeal, we construe the evidence in the light most

favorable to wife, the prevailing party below, granting to her
evidence all reasonable inferences fairly deducible therefrom."

Donnell v. Donnell, 20 Va. App. 37, 39, 455 S.E.2d 256, 257

(1995) (citing McGuire v. McGuire, 10 Va. App. 248, 250, 391

S.E.2d 344, 346 (1990)). So viewed, the evidence proved that

the parties were married on March 16, 1989 and separated on

January 1, 1999 when the wife and two children left the marital

home. On May 4, 1999, the trial court entered a pendente lite

order that required husband to pay $313 per month in child

support. At the time of the pendente lite hearing, husband's

gross income was found to be $1,375 per month and wife's income

was $1,733 per month. On September 19, 2001 and October 25,

2001, the trial court took evidence ore tenus on the issues of

equitable distribution and child support.

Equitable Distribution

The parties purchased the marital home, their only asset,

in mid-1990. Husband made the $51,922.15 down payment for the

purchase of the home from his separate, premarital property.

During the marriage, husband also made numerous "improvements"

to the home to create rental space. These "improvements"

included making alterations to the basement, enclosing the

garage to make apartments, and constructing a second story loft.

The parties then used these areas for rental purposes and

collected rents totaling approximately $1,500 per month. This

practice ended in 1997 when an injunction, sought by the Fairfax

County Zoning Administrator, barred further rental of the

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basement and garage and required additional alterations to the

home in order to comply with the local building code.

At trial, the parties stipulated that the home's mortgage

balance was $184,735. There were also outstanding liens against

the home. The court determined $2,688.95 to be marital debt and

$15,730.13 was found to be husband's separate obligation. The

trial court appointed an independent appraiser because the

parties were unable to agree on the fair market value of the

home. The court-appointed appraiser determined the "as is"

value of the home to be $312,000. This figure was approximately

$50,000 below the prevailing market price because at the time of

trial the home was in serious disrepair. Husband had been the

only party living in the home for over a year. The appraiser

testified that the marital home was "in need of numerous repairs

and replacements." Specifically, he found that the "house

exhibits neglect and poor workmanship throughout.

Updating/maint./replacements [sic] needed throughout including

kitchen, baths, floor cover, paint, drywall, AC, deck, . . . .

House needs a new roof." Half of the appraiser's reduction in

the fair market value was attributable to normal wear and tear,

while the other half was due to the poor construction of

husband's "improvements" or to "super-improvements" that

actually detracted from the value of the home. For example, the

appraiser deducted $10,000 from the estimated value of the home

because of the conversion of the garage into living space.

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 The trial court gave husband a credit for the amount of his

down payment and, after applying the Brandenburg formula,

awarded husband a total credit of $85,542.12 against the value

of the home as his separate property. Wife argued to the trial

court that an even split of the marital share would be

inequitable, because it would leave her with only a fraction of

the total value of the home. Pursuing this fairness argument,

wife sought 100% of the marital share of the equity in the home,

arguing that such an award would be the only way to ensure wife

received "her fair share of the equity" in the marital home.

The trial court awarded wife 95% of the marital share of the

equity in the home.

Husband argues that the trial court abused its discretion

in making its equitable distribution award. While husband

concedes that there was a $50,000 reduction in the value of the

home because of his "improvements," he argues that half of that

figure was attributable to normal wear and tear and that the

"improvements" causing the problems were made early in the

marriage, when both parties were benefiting from the rental

income. Husband asserts that there is no statutory basis to

support the trial court's distribution of the marital estate.

We disagree.

"A decision regarding equitable distribution rests within

the sound discretion of the trial court and will not be

disturbed unless it is plainly wrong or without evidence to

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support it." Holden v. Holden, 31 Va. App. 24, 26-27, 520

S.E.2d 842, 844 (1999) (citing McDavid v. McDavid, 19 Va. App.

406, 407-08, 451 S.E.2d 713, 715 (1994)). "Unless it appears

from the record that the trial judge has not considered or has

misapplied one of the statutory mandates, this Court will not

reverse on appeal." Id. at 27, 520 S.E.2d at 844 (citing

Ellington v. Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630

(1989)). "This Court has ruled that when the trial judge fixes

a monetary award, he or she need not elaborate on the specific

findings; however, the findings must be based upon credible

evidence." Traylor v. Traylor, 19 Va. App. 761, 769, 454 S.E.2d

744, 746 (1995) (citing Taylor v. Taylor, 5 Va. App. 436, 444,

364 S.E.2d 244, 249 (1988)). Credible evidence supports the

trial court's award.

The court-appointed appraiser testified that some of

husband's "improvements" actually decreased the value of the

home. This evidence allowed the trial court to determine that

husband made negative contributions to the marital estate.

While the evidence established that all of the "improvements"

were completed during the marriage, the statute requires the

trial court to consider "[t]he contributions, monetary and

non-monetary, of each party in the acquisition and care and

maintenance" of the marital property. Code § 20-107.3(E)(2)

(emphasis added). There are no time limitations in the statute

delineating when the negative contributions must occur. Rather,

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the test is the impact on the value of the marital estate.

"Those contributions which impact on the value of the marital

estate have been of particular concern to this Court. A court

need not find waste in order to consider negative contributions

in fashioning an equitable distribution award." Barker v.

Barker, 27 Va. App. 519, 537, 500 S.E.2d 240, 248-49 (1998)

(internal citations omitted). Additionally, husband's failure

to care for the home when he was the sole occupant and the

poorly constructed improvements he made to the home diminished

its value. Thus, it cannot be said that there was no evidence

to support the trial court's award.

"The distribution anticipated by the General Assembly is

predicated upon the philosophy that marriage represents an

economic partnership requiring that upon dissolution each

partner should receive a fair proportion of the property

accumulated during marriage . . . ." Roane v. Roane, 12

Va. App. 989, 994, 407 S.E.2d 698, 701 (1991) (internal citation

omitted). "'The function of the [trial court] is to arrive at a

fair and equitable monetary award based upon the equities and

the rights and interests of each party in the marital

property.'" Gottlieb v. Gottlieb, 19 Va. App. 77, 95, 448

S.E.2d 666, 677 (1994) (quoting Mitchell v. Mitchell, 4 Va. App.

113, 118, 355 S.E.2d 18, 21 (1987)).

Although husband complains that the trial court awarded him

only five percent of the marital share of the equity in the

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marital home, he actually received 70% of the money available

from the sale of the home while wife received approximately 30%. 1

The statute allows the trial court to take into account "[s]uch

other factors as the court deems necessary or appropriate to

consider in order to arrive at a fair and equitable monetary

award." Code § 20-107.3(E)(10). Had the trial court adopted

husband's position, husband would have received nearly 85% of

the total equity in the home while wife received approximately

15% of the total. The trial court properly considered that it

would be unfair for husband to receive such a disproportionate

share of the only marital asset. The trial court properly

weighed the statutory factors in arriving at its equitable

distribution award. Accordingly, the trial court's equitable

distribution award is affirmed.

Imputation of Income

Husband holds a degree in public administration from the

University of Iowa; however, he never worked in this field.

Husband drove a taxicab throughout the marriage and often worked

16-hour days. Wife testified that husband's income during the

marriage was "more than $2,000 a month" in addition to the

rental income, but that she did not know how much more. Wife

1
Pursuant to the trial court's award, husband received
$87,493.82. This amount included his separately traced funds
and the additional five percent of the marital share. Wife's
share was $37,082.23.

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based this conclusion on husband's ability to meet the mortgage

obligation of $1,600 per month plus the family's other expenses.

Husband testified that he earned in the range of $1,000 to

$1,200 per month driving the taxicab. Husband also testified

that he had acted as an interpreter for the local courts

(husband speaks Farsi and Pashto), but that he had to stop

because of a hearing problem. At the time of trial, husband had

one roommate who paid $400 per month rent. Thus, the income and

expense sheet husband submitted to the trial court showed an

income of $1,400 per month. Husband also testified that the

taxi manifests showed he earned $3,048.45 for the time period of

January through August 2001. Husband claimed that this reduced

income stemmed from back pain and carpal tunnel syndrome in the

left wrist, which prevented him from working longer hours.

Viewed in the light most favorable to wife, the maximum amount

of income testified to was "more than $2,000 per month" with no

indication of how much more. No evidence was presented of other

jobs husband held or what jobs were available to him.

The trial court rejected husband's claims that he had

health problems that prevented him from working longer hours or

doing other jobs. Wife, however, did not ask the trial court to

impute income to husband; rather, she asked the court to find

that his actual income was $2,500 per month and requested $1,290

per month in child support. Initially, the trial court made the

child support award of $1,290 per month, without making any

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finding of the presumptive guideline support amount or

specifically imputing income. At husband's request for

reconsideration, the trial court determined the presumptive

amount of child support to be $398 and imputed income to husband

in the amount of $5,600 per month and set support at $1,100 per

month. The trial court made the new child support obligation

retroactive to May 1, 2001.

Husband contends that the trial court erred in imputing

income to him because the record is devoid of any evidentiary

basis for the court's finding that husband could earn $5,600 per

month. Wife never requested an imputation of income, no

evidence established that he ever made that much money and even

if some imputation was appropriate, wife failed in her burden to

show available jobs that would allow the amount awarded. We

agree with husband.

"Imputation of income is used by a trial court when

deciding whether to deviate from the presumptive amount of child

support, and any child support award must be based on

circumstances existing at the time the award is made." Albert

v. Albert, 38 Va. App. 284, 295, 563 S.E.2d 389, 394 (2002)

(internal quotations and citations omitted). "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." Niemiec v.

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Commonwealth, 27 Va. App. 446, 451, 499 S.E.2d 576, 579 (1998).

See also Brody v. Brody, 16 Va. App. 647, 651, 432 S.E.2d 20, 22

(1993) ("Where a parent is voluntarily unemployed or voluntarily

underemployed a trial court may impute income based on evidence

of recent past earnings.").

Wife failed to produce any evidence on this issue. The

only evidence in this case of earnings in excess of $1,400 per

month was wife's testimony that husband made "more than $2,000

per month" during the marriage. 2 However, at the pendente lite

hearing on May 4, 1999, the trial court found as a fact, and

without objection, that husband's monthly gross income was

$1,375 per month. More importantly, the record is silent as to

what other, more lucrative jobs were available to husband.

Wife's reliance on Floyd v. Floyd, 17 Va. App. 222, 436

S.E.2d 457 (1993), is misplaced. Floyd is inapposite to the

facts of this case because Floyd was not an imputation case.

"Although the trial judge made reference to imputing income, the

record clearly shows that this was not the sort of imputation,

based on voluntary underemployment, to which the statute

applies. What the trial judge did was make a finding of fact as

to the amount of appellant's gross income." Id. at 229, 436

S.E.2d at 461. In the instant case, the trial court made a

2
There is no documentary evidence regarding earnings in
this case. No tax returns were submitted to the trial court and
the taxi manifests were not moved into evidence, thus we only
have the testimony before us.

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finding of fact that husband's gross income was $1,400 per

month, then, imputed income to husband, on the ground that he

was voluntarily underemployed. While the trial court may have a

basis for imputing some income, the manner and amount are

inconsistent with the evidence in the record.

"When asked to impute income to a parent, the trial court

must consider the parent's earning capacity, financial

resources, education and training, ability to secure such

education and training, and other factors relevant to the

equities of the parents and children." Niemiec, 27 Va. App. at

451, 499 S.E.2d at 579 (citing Brooks v. Rogers, 18 Va. App.

585, 592, 445 S.E.2d 725, 729 (1994)). "The trial court's award

must be based upon circumstances in existence at the time of the

award and not upon speculation or conjecture." Id. at 452, 499

S.E.2d at 579. The trial court stated:

I'm going to impute income to him based upon
what I think he could be reasonably earning,
and I think $1,400 per month falls short of
what he could be reasonably earning by a
factor of four, which would yield $5,200 per
month. . . . I think he can spend his time
more profitably doing something other than
driving a taxicab, and I was not persuaded
that health reasons prevent him from doing
so.

The court later revised this figure to $5,600 per month, when

counsel questioned the math. There is no evidence in the record

that husband ever made a monthly income of $5,600, that he had

recently left a job that paid a similar amount, or that jobs

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were available that would generate that amount of income. At

best the record reflects that husband earned some income in

excess of $2,000, but not a "factor of four" beyond $1,400 per

month as determined at trial. For the foregoing reasons, we

hold that the trial court erred in its determination of the

amount of income imputed to husband and remand for further

consideration.

Child Support

Husband also argues that the trial court erred in setting

his child support obligation at $1,100 per month because there

was no evidentiary basis for imputing income and, thus, it was

error to deviate from the support guidelines. The proper amount

of child support must also be recomputed upon remand as it was

determined with the erroneous imputation of income as its basis.

"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." Rinaldi

v. Dumsick, 32 Va. App. 330, 334, 528 S.E.2d 134, 136 (2000).

There is

a rebuttable presumption in any judicial or
administrative proceeding for child support,
including cases involving split custody or
shared custody, that the amount of the award
which would result from the application of
the guidelines set out in § 20-108.2 is the
correct amount of child support to be
awarded.

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Code § 20-108.1(B). The presumption may be rebutted by, inter

alia, imputing income to a parent who is voluntarily unemployed

or underemployed. Code § 20-108.1(B)(3). The trial court's

error in imputing the income amount of $5,600 per month to

husband also requires a re-computation of the amount of child

support. This award is also reversed and remanded to the trial

court for further consideration consistent with this opinion.

Attorney's Fees

Finally, husband contends the trial court erred in its

award of attorney's fees to wife of $5,500.

"An award of attorney's fees is a matter submitted to the

sound discretion of the trial court and is reviewable on appeal

only for an abuse of discretion." Graves v. Graves, 4 Va. App.

326, 333, 357 S.E.2d 554, 558 (1987). "The key to a proper

award of counsel fees is reasonableness under all the

circumstances." Joynes v. Payne, 36 Va. App. 401, 429, 551

S.E.2d 10, 24 (2001) (citing McGinnis v. McGinnis, 1 Va. App.

272, 277, 338 S.E.2d 159, 162 (1985)). The evidence showed that

both parties were relying on the support of their families at

the time of trial. However, husband was employed, albeit at a

modest income, while wife was not. Under these circumstances,

the award of a part of wife's attorney's fees was reasonable.

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Thus, the trial court did not abuse its discretion in awarding

wife attorney's fees.

Affirmed in part,
reversed in part,
and remanded.

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Benton, J., concurring, in part, and dissenting, in part.

I dissent from the portion of the opinion styled "Equitable

Distribution," and I concur in the balance of the opinion.

"Code § 20-107.3 . . . is based on the notion that marriage

is an economic partnership in which the parties, through varying

contributions, monetary and non-monetary, to the acquisition,

maintenance, and care of property and to the well-being of the

family, may accumulate marital wealth." Dietz v. Dietz, 17

Va. App. 203, 210, 436 S.E.2d 463, 467 (1993). Thus, Code

§ 20-107.3 mandates that the trial judge divide or transfer the

parties' accumulated marital wealth through an equitable

distribution. See Gamble v. Gamble, 14 Va. App. 558, 570, 421

S.E.2d 635, 642 (1992). "[W]hat has always been contemplated by

the Code § 20-107.3 scheme for equitable distribution of the

marital wealth of the parties . . . [is] a distribution which

will equitably 'compensate a spouse for his or her contribution

to the acquisition of property obtained during the marriage.'"

Id. at 569, 421 S.E.2d at 642 (citation omitted).

When making equitable distribution of the marital wealth,

the trial judge's findings must have some foundation based on

the evidence presented. Woolley v. Woolley, 3 Va. App. 337,

345, 349 S.E.2d 422, 426 (1986). In this case, however, without

any explanation, the trial judge awarded to the wife 95% of the

marital share of the equity in the marital residence, the only

marital assets the parties owned. The record establishes that

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the residence was purchased in 1990 using a substantial down

payment from the husband's separate property. At the time of

the divorce proceeding, the residence was appraised at $312,000.

The appraiser obtained that value after determining that a

reduction of $50,000 was appropriate because of the condition of

the residence. He testified "that half [of that $50,000] could

be attributed to just normal wear and tear, the other half to

problems with poor installation, workmanship and condition of

improvements that were made after the house was built."

The trial judge determined that the marital share of the

equity in the residence was $41,722.86. He did not make a

finding that the husband made negative contributions to the

marital estate. Moreover, the record contains no evidence that

the husband, any more than the wife, was the cause of

deterioration in value due to normal wear and tear to the

residence. Certainly, no rational reason exists to penalize

only the husband because the house needed a new roof or other

improvements resulting from years of family use.

Likewise, the evidence proved the husband and wife caused

the renovations to be made to the residence for the purpose of

securing tenants who paid rent to the family. Those rents

generated marital assets in the form of income available to the

parties during the marriage. To the extent that the renovation

workmanship was substandard, no evidence suggests that only the

husband should be penalized. The wife testified that "we"

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caused the renovations to occur. Indeed, she further testified

that her uncle assisted the husband in making some of the

renovations. Simply put, this record fails to support a

conclusion that the $50,000 diminution in value that the

appraiser attributed to wear and tear and substandard

renovations can be considered as a negative monetary

contribution attributable to the husband.

For these reasons, I would reverse the equitable

distribution order and remand it to the trial judge for

reconsideration. I concur in the majority decision reversing

imputation of income and child support provisions.

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