COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia
DAVID CHARLES AUMAN
v. Record No. 2523-94-4 OPINION BY
JUDGE JERE M. H. WILLIS, JR.
MARSHA JOAN AUMAN NOVEMBER 28, 1995
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
LeRoy F. Millette, Jr., Judge
Timothy T. Szabo (Szabo, Quinto, Zelnick &
Erickson, P.C., on brief), for appellant.
David G. Brickley (Brickley & Borsky, P.C.,
on brief), for appellee.
David Charles Auman contends that in determining child
support, the trial court abused its discretion in deviating from
the presumptive guideline amounts specified in Code § 20-108.2.
He argues that no evidence supports a deviation based either (1)
on an imputation of income to him pursuant to Code
§ 20-108.1(B)(3) or (2) on the parties' standard of living during
the marriage pursuant to Code § 20-108.1(B)(10). We find no
error and affirm the judgment of the trial court.
On September 1, 1992, the parties separated. Mr. Auman
voluntarily began paying $100 per child per week for the support
of his two children. The elder child had become emancipated when
the parties' final decree of divorce was entered on November 18,
1994. The decree required Mr. Auman to pay $100 per week support
for the younger child.
On December 2, 1994, Mr. Auman moved the trial court to
reconsider and clarify the amount and frequency of his child
support payments. After a hearing, the trial court modified the
November 18, 1994 decree to require Mr. Auman to pay $400 a month
child support.
"Code § 20-107.2(2) vests discretion in the trial court in
awarding child support and such awards will not be reversed on
appeal unless plainly wrong or unsupported by the evidence."
Young v. Young, 3 Va. App. 80, 81, 348 S.E.2d 46, 47 (1986). A
rebuttable presumption exists that the amount derived from the
guidelines, Code § 20-108.2, is correct. Code § 20-108.1(B).
"Once the presumptive amount is determined, the trial court may
deviate . . . if such deviation is justified by factors
recognized in Code §§ 20-108.1 and 20-107.2." Alexander v.
Alexander, 12 Va. App. 691, 695, 406 S.E.2d 666, 668 (1991).
"Whenever a child support award varies from the guidelines, Code
§ 20-108.2(A) requires the trial court to make written findings
of fact . . . explaining why one or more of these [Code
§§ 20-108.1 and 20-107.2] factors would make it 'unjust and
inappropriate' to apply the guidelines to the case." Richardson
v. Richardson, 12 Va. App. 18, 21-22, 401 S.E.2d 894, 896 (1991).
During the marriage, Mr. Auman worked as a clothing salesman
at Raleigh's. He was laid off shortly before the parties'
separation. After six weeks of unemployment, he began work at
Woodward and Lothrop, where he remained for six months. In
March, 1993, he began work at Saks Fifth Avenue Clearinghouse,
- 2 -
where he earned $13.50 per hour. In December, 1993, he
voluntarily left Saks for a job at Syms, where he earned $9.50
per hour. In August, 1994, he left Syms for a job as a
commissioned salesman at Boardroom Clothier Ltd., where he is
currently employed. Mr. Auman earned gross income of $29,238 in
1992 and $25,765 in 1993. At the time of trial, his projected
gross earned income for 1994 was $17,800.
Using Mr. Auman's projected 1994 income, the trial court
determined the presumptive amount of his child support obligation
to be $237 per month. See Code § 20-108.2. It found this amount
to be "unjust and inappropriate." In fixing Mr. Auman's support
obligation at $400 per month, the trial court based its deviation
from the guideline amount on two factors.
First, finding that Mr. Auman had voluntarily left a
salaried position for a job paying a lower salary and then for a
job providing compensation only on commission, the trial court
held that Mr. Auman was voluntarily underemployed. Pursuant to
Code § 20-108.1(B)(3), it imputed to him an annual earning
capacity of $28,080, or $2,340 per month, based upon his 1993
salary.
Second, considering the children's standard of living during
the marriage and Mr. Auman's $100 weekly post-separation
payments, the trial court found that "the whole thrust of
[Auman's] testimony has been that he's very interested in his
children and trying to pay them, not what he's required to pay
- 3 -
them, but what they need to live the kind of life that they had
lived before the separation . . . ."
Citing Antonelli v. Antonelli, 242 Va. 152, 409 S.E.2d 117
(1991), Ms. Auman argues that although Mr. Auman's job changes
may have been based on bona fide business or personal reasons, he
cannot be permitted thereby to gamble with his child's ability to
receive needed financial support. Id. at 156, 409 S.E.2d at
119-20.
In Antonelli, the father undertook an unsuccessful career
change in the face of a support order. The Supreme Court held:
[W]hen the father who was under court order to pay a
certain sum for child support, which he was able to pay
given his employment, chose to pursue other employment,
albeit a bona fide and reasonable business undertaking,
the risk of his success at his new job was upon the
father, and not upon the children.
Id. Antonelli is not altogether on point. At the time he
changed jobs, Mr. Auman was not under an order requiring him to
pay a court-determined amount of child support. However, we find
the situation presented in this case analogous to that presented
in Antonelli.
When a family is together, it functions as a unit. Family
decisions, including career decisions, presumably are made by
consensus. Although the views of minor children may not be
solicited, those children are nonetheless part of the family
unit. Their needs and their welfare are factors embraced within
family decisions. When the family breaks up, a different
situation comes into existence. No longer are decisions made by
- 4 -
consensus. Rather, the parties must chart their courses in a
context that is adversarial, at least in structure. Thus, each
party must make his personal decisions having in mind his
obligations, both actual and potential. In these circumstances,
a party is not free to make career decisions that disregard the
needs of his dependents and his potential obligation to them, and
"the risk of his success at his new job [is] upon [him], and not
upon [his child]." Id. at 156, 409 S.E.2d at 120.
We hold that the trial court did not abuse its discretion in
holding Mr. Auman responsible for considering his support
obligations when making career changes or in laying upon his
shoulders the risk of those changes. Thus, the trial court did
not err in imputing to Mr. Auman income that his 1993 employment
showed him capable of earning or in requiring him to perpetuate
for his child the lifestyle that his 1993 income supported.
The judgment of the trial court is affirmed.
Affirmed.
- 5 -