COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons
Argued at Salem, Virginia
ROBERT A. BLACKBURN
OPINION BY
v. Record No. 0259-98-3 JUDGE SAM W. COLEMAN III
JUNE 29, 1999
JOAN LAVONNE MICHAEL
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
John J. McGrath, Jr., Judge
Franklin R. Blatt (Christopher J. Smith, on
brief), for appellant.
Walter F. Green, IV (Green & O'Donnell, on
brief), for appellee.
Robert A. Blackburn (husband) moved the trial court to
reduce his spousal support obligation, which amount had been
agreed upon in a property settlement agreement incorporated by
reference into the divorce decree, and to increase Joan Lavonne
Michael's (wife's) child support obligation. He based both
motions upon the fact that wife's earning capacity had
increased. Although the trial court imputed income to wife for
the purpose of increasing her child support obligation, the
court declined to impute income to her for the purpose of
reducing husband's spousal support obligation and determined
that wife's change in circumstance did not warrant modification
of spousal support. Husband contends the trial court erred in
not imputing income to wife for the purpose of determining
spousal support and applied the wrong standard for determining
whether to modify the spousal support award. We agree that the
court erred in not imputing income to the wife for purposes of
determining spousal support and in the standard it applied.
Accordingly, we reverse the decision of the trial court and
remand the case for further consideration.
BACKGROUND
Robert A. Blackburn and Joan Lavonne Michael were divorced
by a decree that incorporated their property settlement
agreement. That agreement provided in relevant part as follows:
Husband shall pay to Wife spousal support in
the monthly amount of $642.00, payable on
September 1, 1996, and continuing each and
every month thereafter until the death of
either party, the remarriage of Wife, or
modified by a Court of competent
jurisdiction.
The agreement also awarded the wife custody of the party's
minor child and provided an amount for child support, which
provisions the court also incorporated in the decree. Several
months after entry of the decree, the juvenile and domestic
relations district court transferred child custody to the
husband and ordered wife to pay husband $122 a month in child
support.
Approximately eight months after the divorce decree,
husband filed a motion for the court to reduce his spousal
support obligation. The motion alleged as the ground for
modification that wife's earnings and earning capacity had
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increased. After entry of the divorce decree, wife had received
diplomas certifying her as a "computer operations specialist"
and a "legal secretary."
After hearing the motion, the trial court made two separate
and distinct findings. First, the court found that a material
change in circumstances had occurred because, by completing her
training, wife had increased her earning capacity. Thus, the
court imputed to her income of $1,039 per month for the purpose
of determining child support. Based on the imputed income, the
trial court increased wife's child support obligation in
accordance with the guidelines from $122 per month to $222.45
per month.
Next, the court held that wife's change in circumstances
did not warrant a modification of the amount of spousal support
which had been incorporated from the property settlement
agreement. In deciding to modify child support but not spousal
support, the trial court emphasized the significance of the
parties' recently-executed property settlement agreement, which
fixed the amount of spousal support. The trial court ruled that
although the language of the property settlement agreement and
Code § 20-109 expressly authorized it to modify the agreed upon
spousal support award, considering the language of the property
settlement agreement, its comprehensive nature, and considering
how recently the parties had executed the agreement, a change in
circumstances would have to be "very dramatic" or a "real clear,
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meaningful, significant material change" to warrant modification
of the amount of spousal support. The trial court concluded
that "there ha[d] been no material change of circumstances
regarding spousal support."
ANALYSIS
Code § 20-109(A) empowers trial courts to modify a spousal
support award, but Code § 20-109(C) expressly limits the court's
authority to modify an agreed upon spousal support award
according to the terms of a stipulation or contract signed by
the parties. See e.g., Pendleton v. Pendleton, 22 Va. App. 503,
506-07, 471 S.E.2d 783, 784-85 (1996) (holding that parties may
bind themselves to a spousal support agreement which limits the
judicial authority to modify). Divorcing spouses who are
sui juris may bind themselves by contract to pay a specified
amount of spousal support and may specify the extent to which a
court may modify a spousal support award. Here, while the
parties agreed upon the amount of spousal support that husband
would pay wife, they expressly granted the trial court the
authority, without specified limitation, to modify spousal
support.
On the other hand, parties may not by contract limit their
responsibility to support a child or a court's authority to
determine the amount of child support. See Featherstone v.
Brooks, 220 Va. 443, 446, 258 S.E.2d 513, 515 (1979). While a
court is not bound by an agreement between parents to pay child
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support, the court may approve and incorporate the terms of an
agreement setting child support, provided the court determines
that the terms of the agreement are in a child's best interest.
See Scott v. Scott, 12 Va. App. 1245, 1248, 408 S.E.2d 579, 582
(1991). Thus, although agreements for child and spousal support
are to be treated differently by trial courts, where, as here,
the spousal agreement provided no separate criteria for
determining how or when to modify support, we hold that the
statutory standard, which is whether a material change of
circumstances has occurred, applies to a request to modify child
support and to modify spousal support. See MacNelly v.
MacNelly, 17 Va. App. 427, 430, 437 S.E.2d 582, 584 (1993)
(holding that, in the context of whether remarriage terminates
spousal support, any attempt to abrogate the effect of the
statute requires express language). Thus, a party seeking
modification of a support award, whether of child or spousal
support, has the burden to show a material change in
circumstances warranting a modification of support. See Furr v.
Furr, 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992).
Accordingly, we find that the trial court erred by
requiring a "very dramatic change in circumstances" or a "real
clear, meaningful, significant material change in circumstance"
in order to justify a modification of spousal support
incorporated from a property settlement agreement. We agree
that for purposes of determining child support a material change
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of circumstances occurred when wife completed her educational
training and was available for gainful employment. We also
agree that the evidence supports the court's factual finding
that wife was voluntarily underemployed and that, therefore,
income should be imputed to her. However, we disagree with the
trial court's ruling that husband was required to prove
something beyond a material change of circumstance, and we
disagree with the court's decision not to impute income to wife
for purposes of determining whether to modify spousal support.
In setting or modifying spousal support or child support, a
court may impute income to a party voluntarily unemployed or
underemployed. See Calvert v. Calvert, 18 Va. App. 781, 784,
447 S.E.2d 875, 876 (1994); Stubblebine v. Stubblebine, 22 Va.
App. 703, 710, 473 S.E.2d 72, 75 (1996) (en banc). Whether a
person is voluntarily unemployed or underemployed is a factual
determination. In evaluating a request to impute income, the
trial court must "consider the [parties'] 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 the children." Niemiec v.
Commonwealth, 27 Va. App. 446, 451, 499 S.E.2d 576, 579 (1998).
Furthermore, the party moving the court to impute income has the
burden of proving that the other party is voluntarily foregoing
more gainful employment. See id. Having applied the proper
analysis, the trial court found as a fact, for child support
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purposes, that wife was voluntarily underemployed and,
accordingly, imputed income to her. The trial court found that
this imputed income constituted a material change of
circumstances warranting a modification in child support.
Although the trial judge had found that wife was underemployed,
and on the same facts imputed income to her for child support,
he expressly stated that he "did not impute income to [wife]
. . . in deciding the issue of spousal support." The trial
court would not make a different factual finding based on the
same evidence for the purpose of determining spousal support.
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. See Saleem v. Saleem, 26 Va. App. 384, 393, 494
S.E.2d 883, 887 (1998). However, we hold that because the trial
court explicitly found that wife was voluntarily underemployed
and therefore imputed income to her for the purpose of
evaluating a request for modification of child support, it was
error, in this case, for the trial court not to impute income to
the wife for the purpose of evaluating husband's motion to
modify spousal support. Furthermore, when a material change of
circumstances has occurred, the trial court must determine
whether the changed circumstances warrant or justify a change in
the amount of support. While every material change of
circumstance may not warrant a modification of support, the
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standard for determining whether to modify remains the same -- a
"material change," and the standard is no different where the
spousal support was agreed upon between the parties.
The trial judge, in explaining why he applied a different
standard, noted that the parties had only recently agreed upon
the amount of spousal support and at the time they must have
contemplated that wife would complete her training and become
employable.
On remand, when determining whether the material change in
circumstances warrants modification of spousal support, the
trial judge may consider the recent origin of the spousal
support agreement and whether the parties considered wife's
completion of her training and availability of employment.
However, because the trial court erred in finding as a matter of
fact that wife was not underemployed for purposes of modifying
spousal support and that income should not be imputed to her,
and erred in holding that husband had to prove "a very dramatic
change" or "a real clear, meaningful, significant material
change in circumstance," we reverse and remand for further
consideration.
Reversed and remanded.
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