COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bumgardner and
Senior Judge Hodges
GEORGE P. BROOKS
MEMORANDUM OPINION *
v. Record No. 1810-00-1 PER CURIAM
JANUARY 9, 2001
CAROLE W. BROOKS
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Alan E. Rosenblatt, Judge
(Carl W. Isbrandtsen; Carl W. Isbrandtsen,
P.C., on brief), for appellant.
(Barry Dorans; W. Brantley Basnight, III;
Wolcott, Rivers, Wheary, Basnight & Kelly,
P.C., on brief), for appellee.
George P. Brooks (husband) appeals from a final decree of
divorce entered by the Circuit Court for the City of Virginia
Beach (circuit court). He contends the circuit court erred in
setting the amount of spousal support and child support payable to
Carole W. Brooks (wife). Upon reviewing the record and the briefs
of the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the judgment of the circuit
court. See Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Background
The parties were married on June 29, 1974. Wife worked
full-time as a school teacher until 1977, at which time she quit
to stay home with the couple's eldest daughter. Except for
working briefly part-time when the couple's first child was a
baby, wife did not work outside the home during the marriage.
After the parties separated in January 1997, wife went back
to school to renew her teaching certificate. As of the date of
the hearing before the circuit court, wife was apparently
eligible to be, but had not yet been, re-certified. Although
wife conceded that she could earn $27,500 as a teacher, there
was no evidence presented regarding the availability of teaching
positions in wife's field (English and drama).
In support of her request for spousal support, wife
prepared a statement of expenses, which included a number of
expenses related to the couple's children, one of whom was away
at college. Excluding expenses related to the daughters and
including the expense of purchasing a new car, wife calculated
her monthly expenses to be approximately $4,800. 1
In the last full year before the parties separated, husband
earned $202,966.74. At the commissioner's hearing, husband
1
This figure did not include an allowance for the taxes
wife would have to pay on the alimony. On a March 10, 1999
expense statement, wife estimated that her annual income taxes
would be $6,835. This is apparently the amount of taxes she
anticipated paying on the $5,850 per month spousal support she
requested.
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testified that his monthly income was $26,668. By the time of
the circuit court hearing, husband's monthly income had risen to
approximately $31,166.
Husband's expert witness, Mark DesRoches, testified that a
person could expect a rate of return of 7% in a reasonably safe
investment "in this market." 2 Wife testified that she had no
experience in investing. Husband conceded that, recently, many
of his investments had rates of return significantly lower than
7%.
Noting that wife was not yet certified as a teacher and the
absence of evidence regarding available employment, the
commissioner recommended that income not be imputed to wife for
the purpose of calculating spousal support. The commissioner
found that wife's listed monthly expenses--including an
allowance for the purchase of a new car, but excluding expenses
related to the daughters--were reasonable. The commissioner in
chancery recommended that wife be awarded $5,000 per month in
spousal support "under present circumstances, i.e., prior to the
allocation of assets under equitable distribution."
The commissioner found that the monthly child support
obligation of the parties was $1,457 (excluding health insurance
coverage). The commissioner recommended husband to pay 81% of
this amount, or $1,148. In calculating this amount under the
2
DesRoches testified on May 11, 1999.
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child support guidelines, the commissioner did not impute any
income to wife, although he did factor in wife's $5,000 monthly
spousal support.
After the commissioner issued his report, but prior to the
hearing before the circuit court, the parties reached an
agreement regarding equitable distribution of the marital
property. As part of that agreement, husband agreed to pay wife
$550,000.
The circuit court found that the parties were equally
responsible for the breakup of the marriage. The court agreed
with the commissioner's finding that income should not be
imputed to wife. Although agreeing that wife would eventually
have to obtain employment, the court found that wife was not yet
re-certified as a teacher and there was no evidence that she
would be successful in seeking employment at that time. The
court also agreed with the commissioner's finding regarding the
reasonableness of wife's claimed expenses, commenting that they
were "relatively modest for the parties under these
circumstances."
In deciding the amount of spousal support, the circuit
court indicated that it was considering husband's significant
ability to pay, as well as the lifestyle to which the parties
became accustomed over nearly twenty-three years of marriage.
The court also stated that it was considering the award wife
received as a result of the equitable distribution agreement,
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noting that "without the settlement, the amount of spousal
support the Court would have awarded Mrs. Brooks would be
significantly higher."
The circuit court rejected appellant's assertion that it
should, in essence, "impute" investment income to wife at a 7%
rate of return on the equitable distribution payment. The court
questioned whether someone without experience in investing could
expect such a rate of return. The court stated that investment
income could not be imputed to wife until she had a "track
record" with investing the equitable distribution monetary
award.
The court concluded: "Considering all of these factors and
all of the other statutory factors, I think that the amount of
support that was set by the commissioner, $5,000 is still a
reasonable and appropriate amount."
Spousal Support
Husband contends the circuit court erred in 1) awarding
spousal support to wife without considering the equitable
distribution award; 2) failing to impute investment income to
wife based on a 7% rate of return on wife's equitable
distribution cash award; 3) assessing wife's needs and expenses;
and 4) not imputing wage income to wife. We disagree.
On appeal, we view the evidence in the light most favorable
to the party prevailing below. Piatt v. Piatt, 27 Va. App. 426,
430, 499 S.E.2d 567, 569 (1998). "We accord great deference to
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the trial court's findings of fact and will not disturb them
unless they are plainly wrong or without evidence to support
them." Vissicchio v. Vissicchio, 27 Va. App. 240, 249-50, 498
S.E.2d 425, 430 (1998).
"A spouse's entitlement to support and the amount of the
award are matters within the sound discretion of the trial
court. In determining the amount of an award, the court must
consider all of the factors set forth in Code § 20-107.1."
Stubblebine v. Stubblebine, 22 Va. App. 703, 707, 473 S.E.2d 72,
74 (1996) (en banc) (citation omitted). "When the record
discloses that the trial court considered all of the statutory
factors, the court's ruling will not be disturbed on appeal
unless there has been a clear abuse of discretion." Gamble v.
Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635, 644 (1992).
A. Failure to Consider Equitable Distribution Award
In determining the amount of support one spouse should pay
another, a circuit court must consider any equitable
distribution award made pursuant to Code § 20-107.3. Code
§ 20-107.1(E)(8).
The circuit court specifically stated that it was
considering the equitable distribution award in determining
wife's entitlement to spousal support. Indeed, the court stated
that it would have awarded even more spousal support, but for
the size of wife's equitable distribution award. Especially
considering the great disparity between husband's income and
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wife's earning potential, we cannot say the circuit court abused
its discretion.
B. Imputing Investment Income
"[A] trial court is not required to accept the opinion of
an expert. 'It is well established that the trier of fact
ascertains [an expert] witness' credibility, determines the
weight to be given to their testimony, and has the discretion to
accept or reject any of the witness' testimony.'" Piatt, 27 Va.
App. at 434-35, 499 S.E.2d at 571 (citations omitted).
Although DesRoches testified that one could expect a 7%
rate of return for money invested in reasonably safe
investments, husband conceded that many of his investments had
failed to reach that benchmark and wife testified that she had
no experience in investing money. Moreover, the circuit court
did not find that wife's investment income could never be
considered. Rather, the court concluded that DesRoches'
estimates were excessive under the circumstances and that it
would be too speculative to estimate what rate of return wife
might eventually earn on her money. The court did not abuse its
discretion, therefore, in refusing to impute investment income
to wife.
C. Assessment of Wife's Needs and Expenses
A circuit court's award of spousal support "should not be
interfered with by an appellate court unless it is clear that
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some injustice has been done." Papuchis v. Papuchis, 2 Va. App.
130, 133, 341 S.E.2d 829, 831 (1986).
The evidence proved that husband's income was significant
and more than sufficient to pay the spousal support award. Wife
had given up her career to stay home with the couple's children
and had been out of the work force, for all intents and
purposes, for twenty-three years. Furthermore, the evidence
proved that wife made substantial non-monetary contributions to
the family during the marriage. The trial court found that
wife's needs were modest--especially compared with the standard
of living the parties enjoyed during the last years of the
marriage. We cannot say that this decision was plainly wrong or
that the court abused its discretion in weighing the statutory
factors.
Appellant complains that the circuit court improperly
considered expenses related to the couple's children in
determining the amount of support to which wife was entitled.
There is nothing in the record supporting this assertion.
Indeed, the commissioner stated that he was specifically not
considering expenses related to the daughters. Moreover,
husband was responsible for only 81% of the child support
obligation calculated under the statutory schedule. Thus, wife
was directly responsible for a percentage of expenses related to
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the youngest child and the court was entitled to consider this
fact in fashioning a spousal support award. 3
D. Imputing Wage Income to Wife
"[A] court may impute income to a party who is voluntarily
unemployed or underemployed. Imputation of income is based on
the principle that a spouse should not be allowed to choose a
low paying position that penalizes the other spouse or any
children entitled to support." Calvert v. Calvert, 18 Va. App.
781, 784-85, 447 S.E.2d 875, 876-77 (1994) (citations omitted).
"[I]n setting support awards, [a court] must look to current
circumstances and what the circumstances will be 'within the
immediate or reasonably foreseeable future,' not to what may
happen in the future." Srinivasan v. Srinivasan, 10 Va. App.
728, 735, 396 S.E.2d 675, 679 (1990). Where a spouse has not
worked during a marriage and where there is no evidence that she
has unreasonably refused employment, a trial court does not
abuse its discretion by granting that spouse a reasonable period
of time to secure employment before imputing income. See id.
At the time of the hearing, wife was not yet re-certified
to teach and there was no evidence that she had refused any
offers of suitable employment. The circuit court recognized
that wife would eventually have to go back to work. We cannot
say the court abused its discretion by refusing to impute income
3
Based on the commissioner's calculations, wife's "share"
of the child support obligation was $309 per month.
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to wife before she had a reasonable period of time to re-enter
the job market.
Child Support
Husband contends that the circuit court erred in
determining his child support obligation due to its failure to
impute income to wife. For the same reasons the circuit court
did not abuse its discretion in refusing to impute income for
purposes of calculating spousal support, the court did not abuse
its discretion in calculating the parties' child support
obligations.
Accordingly, for the reasons stated above, the judgment of
the circuit court is affirmed.
Affirmed.
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