COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Baker *
Argued at Norfolk, Virginia
ROBERT MICHAEL EWING
MEMORANDUM OPINION** BY
v. Record No. 1461-97-1 JUDGE RICHARD S. BRAY
AUGUST 11, 1998
PATRICIA LYNN EWING
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Russell I. Townsend, Jr., Judge
Robert M. Ewing, pro se.
Patricia L. Ewing, pro se.
The instant cause was before the trial court upon motion of
Robert Michael Ewing (father) seeking a reduction of child
support previously awarded to Patricia Lynn Ewing (mother).
Father alleged changed circumstances arising from "significant
reduction of [his] income . . . coupled with a substantial
increase in [mother's] income . . . ." Finding the requisite
change in circumstances, the court reduced the earlier award but,
nevertheless, aggrieved father by imputing income to him and
otherwise calculating the modified support. Father appeals,
alleging numerous substantive and procedural errors. Finding no
error, we affirm the order.
*
Judge Baker participated in the hearing and decision of
this case prior to the effective date of his retirement on July
31, 1998 and thereafter by his designation as senior judge
pursuant to Code § 17-116.01.
**
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary for
disposition of the appeal.
In accordance with well established principles, we review
the evidence in the "light most favorable to the party prevailing
below," mother in this instance. Pommerenke v. Pommerenke, 7 Va.
App. 241, 244, 372 S.E.2d 630, 631 (1988) (citation omitted).
When the court hears the evidence ore tenus, "its finding is
entitled to great weight and will not be disturbed unless plainly
wrong or without evidence to support it." Id. A presumption
exists that the court properly considered the evidence and
applied the law. See Williams v. Williams, 14 Va. App. 217, 221,
415 S.E.2d 252, 254 (1992).
Father initially contends that the court erroneously
departed from the statutory guidelines of Code § 20-108.2 by
imputing income to him without ascertaining the "presumptively
correct amount" and properly explaining the deviation. Father's
arguments, however, are belied by the record.
A trial court addressing a material change in circumstances
which requires modification of the original support order must
first calculate the presumptive amount fixed by the statutory
guidelines, deviating only after concluding, with written
justification, that such award would be "unjust or inappropriate"
in consideration of those factors specified in Code § 20-108.1.
See Watkinson v. Henley, 13 Va. App. 151, 158, 409 S.E.2d 470,
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473-74 (1991); Code §§ 20-108.1, -108.2. Here, the record
discloses that the court expressly found the requisite changed
circumstances and that the loss of father's income would reduce
his guideline obligation to "zero." 1 However, in consideration
of father's recent employment and earnings history, the court
departed from the guidelines by imputing income to him, a finding
sufficiently justified by the court in the disputed order which
must be affirmed, if supported by the evidence. See Code
§ 20-108.1(B)(3), (11), (12).
It is well established that a parent may not voluntarily or
neglectfully compromise income to the detriment of support
obligations to children. Brody v. Brody, 16 Va. App. 647, 651,
432 S.E.2d 20, 22 (1993); see also Auman v. Auman, 21 Va. App.
275, 279, 464 S.E.2d 154, 156 (1995). Thus, income may be
imputed to a parent to promote the welfare of his or her children
through a support order reasonable and appropriate to the
circumstances. See Code § 20-108.1(B)(3), (11), (12). In
addition to the several statutory factors relevant to imputation,
we have also recognized "recent past earnings" as a relevant
consideration. Brody, 16 Va. App. at 651, 432 S.E.2d at 22; see
Code § 20-108.1(B)(3), (11), (12).
Here, father is an articulate, educated professional, with
1
Father did not properly preserve an objection to the
omission of this calculation from the order, and we decline to
consider this issue on appeal. See Jacques v. Commonwealth, 12
Va. App. 591, 593, 405 S.E.2d 630, 631 (1991); Rule 5A:18.
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marketable skills evidenced by recent, well compensated
employment. Although without work at the time of the hearing,
father had been employed during the preceding year pursuant to a
contract which had ended in accordance with its terms only
several weeks previously. He offered little evidence of a job
search either in anticipation of or after termination. Such
evidence, when considered with the entire record, justified the
imputation of $40,000 annual income to father, a sum less than
his most recent earnings and reasonable under the circumstances.
Father further complains that the trial court prevented him
from presenting evidence pertinent to the imputation issue.
However, we are unable to consider this question because father
failed to proffer or avouch such evidence for the record, thereby
precluding proper appellate review for error. See Smith v.
Hylton, 14 Va. App. 354, 357-58, 416 S.E.2d 712, 715 (1992).
Father next argues that the court incorrectly determined his
child support obligation by failing to deduct previously ordered
spousal support from his gross income, by requiring him to share
"ordinary" medical expenses in addition to fixed support and by
adding expenses of "child care" not in evidence. Our review of
the record does not disclose an obligation of spousal support of
father to mother or an imposition of medical expenses contrary to
statute, and mother's uncontroverted testimony sufficiently
established monthly child care expenses of $141. Hence, we find
no merit in father's contentions.
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Lastly, father seeks an award of attorney's fees incidental
to these proceedings. Finding no merit in father's appeal or
circumstances otherwise supporting his claim, we decline such
relief.
Accordingly, we affirm the disputed order.
Affirmed.
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Robert M. Ewing v. Patricia L. Ewing
Combined Opinion