COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
THOMAS MIKLOVIC
MEMORANDUM OPINION *
v. Record No. 0271-02-4 PER CURIAM
AUGUST 6, 2002
DEBORAH L. NAPIER
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
(Craig E. White; Sevila, Saunders,
Huddleston & White, P.C., on brief), for
appellant.
No brief for appellee.
Thomas Miklovic, appellant, appeals a decision of the trial
judge imputing income to appellant for purposes of determining his
child support obligation. Upon reviewing the record and opening
brief, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial judge.
See Rule 5A:27.
BACKGROUND
Appellant and Deborah Napier, appellee, were divorced in
1999. On September 10, 2001, appellant's employer terminated his
employment. On that same day, appellant filed a motion in the
trial court to modify spousal and child support. Based upon
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
evidence presented at a hearing held on October 31, 2001, the
trial judge entered an order on November 5, 2001 imputing income
to appellant for purposes of calculating child support. Appellant
filed objections and a motion to reconsider, and the trial judge
entered an order suspending and tolling the time period pursuant
to Rule 1:1. On December 4, 2001, appellant presented further
argument and evidence on the issue, and the trial judge modified
several aspects of his earlier rulings. However, the trial judge
did not modify his ruling on the imputation of income to
appellant. The trial judge entered an order on January 4, 2002,
imputing $5,518 per month income to appellant for the purposes of
calculating child support. Appellant appeals that order.
FACTS
At the hearing held on October 31, 2001, appellant offered
evidence that his sole source of income was his unemployment
benefits of $1,595 per month. Appellant also testified that he
had searched for employment through internet employment agencies.
Wife argued that appellant had other sources of income and assets,
and she offered into evidence a mortgage application which she
asserted showed appellant's income and other assets. Appellant
contended that the mortgage application contained financial asset
information concerning his brother, who was a co-borrower on the
application. Wife also asserted that appellant had not "lifted
one finger" since he lost his job and that he had a substantial
retirement account.
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Appellant's monthly income prior to his unemployment was
$7,113. The trial judge ruled that appellant's prior monthly
income should be imputed to him for the purposes of calculating
child support. Thus, the trial judge imputed $5,518 per month
income to appellant.
At the December 4, 2001 motion for reconsideration, appellant
argued that, in his earlier ruling, the trial judge failed to
state on the record the factors he considered in deviating from
the presumptive amount of child support. The trial judge then
articulated his reasons for imputing income to appellant. The
trial judge stated:
One, [appellant] has a history of
frequent job changes. But in all those job
changes he has been employed at a salary at
a given level of income, and that income is
roughly the income that was imputed to him
in this case.
Secondly, he has not been out of work
for a long period of time. I found also his
testimony to be lacking in credibility in
this case with respect to his efforts to
find employment. I found that the evidence
that he did present to be really of little
value to the court in assessing his income
and what he should be earning at this point
in time, if anything.
Also, I noted the papers that were
filed and exhibits that were filed by
[appellee] in this case with respect to the
mortgage application, what he stated on the
mortgage application his income to be in
this case, and any independent resources
that he might have with respect to income,
although that's really of little note.
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And the court in sum found that
[appellee] has borne the burden of--in this
case--of showing that income should be
imputed to [appellant], and that he could be
working at the salary that has been imputed
to him, which has been his historical salary
of late in this case.
These findings were included in the January 4, 2002 court
order. The trial judge also indicated that the presumptive
guideline child support obligation was $743 per month, and
appellant does not challenge this figure. The trial judge
imputed income of $5,518 per month to appellant, and he ordered
appellant to pay $2,020 per month in child support.
ANALYSIS
"The moving party in a petition for modification of support
is required to prove 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 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." Blackburn v. Michael, 30 Va. App. 95, 102,
515 S.E.2d 780, 783-84 (1999). The trial judge 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.'" Id. at 102, 515 S.E.2d at 784 (citation omitted).
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A reduction in income resulting from a
voluntary employment decision does not
require a corresponding reduction in the
payor spouse's support obligations, even if
the decision was reasonable and made in good
faith. Accordingly, a "court may impute
income to a party who is voluntarily
unemployed or underemployed." The trial
court, in determining whether to award
support and the amount thereof, may consider
earning capacity as well as actual earnings
in fashioning the award so long as it
applies "the circumstances in existence at
the time of the award."
Stubblebine v. Stubblebine, 22 Va. App. 703, 708, 473 S.E.2d 72,
74 (1996) (en banc) (citations omitted).
Where . . . the father seeks a
reduction in the amount of payments for the
support and maintenance of his minor
children because of a change in his
financial condition, he 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.
Hammers v. Hammers, 216 Va. 30, 31-32, 216 S.E.2d 20, 21 (1975).
Although appellant's employment was involuntarily
terminated on September 10, 2001, the trial judge specifically
stated that he did not find credible appellant's testimony
concerning his efforts to find employment after his termination.
Thus, from the evidence presented, the trial judge could find
that, since his termination, appellant has remained voluntarily
unemployed. Appellant is an articulate, educated professional,
with marketable skills evidenced by recent, well-compensated
employment. Indeed, appellant's resume, which was admitted into
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evidence as an exhibit, indicates that he is seeking a position
in software engineering in the "embedded,
data/telecommunications field" with a desired salary of $92,000
per year. The evidence did not show that appellant's inability
to pay child support was "not due to his own voluntary act or
because of his neglect" in failing to obtain employment. See
id. In addition, the trial judge based the amount of imputed
income on the amount of income appellant was earning immediately
prior to his termination. "Where a parent is 'voluntarily
unemployed or voluntarily underemployed' a trial court may
impute income based on evidence of recent past earnings." Brody
v. Brody, 16 Va. App. 647, 651, 432 S.E.2d 20, 22 (1993)
(citation omitted).
Furthermore, although appellant argues the trial judge
misapplied the burden of proof in this case, the trial judge
specifically found that appellee "has borne the burden . . . of
showing that income should be imputed to [appellant]." The
party seeking to impute income has the burden of proof. Id.
Appellant also contends the record does not support the
trial judge's finding that he had a history of frequent job
changes. Appellant's resume indicates that he has been employed
at three different companies since 1998. From that evidence,
the trial judge could conclude that appellant has a history of
frequent job changes. Moreover, the evidence showed that
appellant is a trained professional, with viable skills, over
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twenty years of experience in the field of software engineering,
and a recent history of well-compensated employment. Therefore,
the trial judge had sufficient evidence to impute income to
appellant. Accordingly, we affirm the trial judge's decision.
Affirmed.
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Thomas Miklovic v. Deborah L Napier
Combined Opinion