COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Willis
Argued at Norfolk, Virginia
JOHN C. LUMPKIN
v. Record No. 1660-94-1 MEMORANDUM OPINION*
BY JUDGE JOSEPH E. BAKER
SUZANNE MARIE KAZMARSKI LUMPKIN JULY 25, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
N. Wescott Jacob, Judge Designate
John C. Lumpkin, pro se.
Henry M. Schwan for appellee.
John C. Lumpkin (husband) appeals from a decree of the
Circuit Court of the City of Norfolk (trial court) that granted
Suzanne Marie Kazmarski Lumpkin (wife) a divorce on the grounds
of adultery and desertion and made support and equitable
distribution awards. Husband contends that in making the various
awards, the trial court erroneously failed to impute income to
wife; wrongfully ordered him to pay an excessive amount of
spousal and child support; mistakenly accepted the testimony of
the less credible appraisal witness; and erroneously failed to
credit him for monies he gave wife to be applied to her attorney
fees.
In a counter appeal, wife asserts that the trial court erred
when it failed to impute income to husband due by reason of
husband having paid an excessive amount of salary to a secretary
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*Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
with whom wife alleges husband was having an affair, and by
failing to deviate from the child support guidelines in order to
account for the counseling needs of one of their two children.
Finding no reversible error, we affirm the judgment of the trial
court.
As the parties are knowledgeable of the extensive record in
this case, we state only those facts essential to an
understanding of this opinion. The divorce decree was entered on
August 5, 1994. It found that husband had committed adultery
with the secretary who wife contends was paid an excessive amount
of salary as an employee in a business owned by husband. In
1986, when wife became pregnant with the second child born of the
marriage, wife stopped working at her registered nurse
profession. She testified that her continued unemployment was
due to the need to take care of the children. Husband claims
that her refusal to work at her profession was caused by her
attorney's advice not to seek work until after the case was
completed. In this appeal, husband does not contest the grounds
upon which the divorce was granted.
I. Failure to Impute Income
Husband argues that wife could earn in excess of $18,000
annually, yet she refuses to seek employment. In addition, he
asserts that wife will be able to earn income from the property
she receives from her equitable distribution share. Wife
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contends that the two children are at a tender age, and that one
child presently requires special attention due to an emotional
illness. Further, she asserts, the amount of income, if any,
from property she may receive is not yet computable. The trial
court reviewed the evidence and declined to impute any income to
wife "at this time." Thus, that door remains open for future
change upon a showing that consideration should be given. Upon
our review of the record, we cannot say that the trial court's
decision was plainly wrong or without evidence to support it.
See Code § 8.01-680; Thomas v. Thomas, 217 Va. 502, 504, 229
S.E.2d 887, 889 (1976).
Wife contends that the secretary with whom husband was
having an affair was overpaid in relation to other secretaries
employed in husband's business. Husband presented evidence that
the trial court found tended to show that the secretary had
earned her salary. Upon review of the record, we cannot say that
judgment of the trial court was plainly wrong or without evidence
to support it. Id.
II. Rebuttal Evidence
Husband advised the trial court that a witness would testify
that wife had been told by her attorney to not seek work until
the case had been completed, and proffered the witness to
corroborate that statement. The trial court did not decline to
consider the proffered evidence but responded, "Good. We won't
hear it. That's fine. That settles that one." It is clear that
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the trial court was aware of the alleged statement and concluded
that upon the whole record, wife was justified in not seeking
employment "at that time." Upon this record we find no
reversible error in the decision.
III. Inclusion of Spousal Support
Husband concedes that Code § 20-108.2(C) permits spousal
support to be considered as income to the recipient in
calculating the child support obligations of the parties only if
the spousal support is paid pursuant to a preexisting order or
written agreement. Neither of these conditions are shown to be
relevant to this case. Accordingly, the trial court did not err
in refusing to consider the amount of spousal support awarded to
wife when it determined the appropriate child support award.
IV. Spousal and Child Support
Husband further contends that the support awards were
excessive based upon the trial court's finding that his average
annual income was $72,000. Wife argues that the awards were
within the guidelines and reasonable based upon husband's actual
income. She bases that claim upon evidence that shows husband's
annual income has been on the rise for the past five years, and
that his latest annual income was $93,000.
Premised upon an income of $6,000 per month, the trial court
ordered husband to pay spousal support of $18,000 annually, or
$1,500 per month. Based upon $6,000 gross monthly income, the
guidelines disclose that an award of support for two children
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should be $1,186. There is evidence in the record concerning one
child's health that justified the trial court's actual child
support award of $1,255 per month plus health insurance coverage.
A trial court is vested with broad discretion in fixing the
amount of support, and its decision will not be disturbed unless
it is clear that some injustice has been done. Lapidus v.
Lapidus, 226 Va. 575, 580, 311 S.E.2d 786, 789 (1984). We find
no abuse of trial court discretion in making the support awards.
V. Credit for Attorney Fees
Husband testified that he gave wife $4,500 to be applied to
his attorney fees obligation. Wife testified that husband had
agreed the children were to attend private school and that
without warning husband stopped paying tuition. She further
testified, and husband agreed, that he knew wife used the $4,500
to make the tuition payments. We cannot say that the trial court
was plainly wrong when it denied husband credit of $4,500 toward
his attorney fees obligation.
Accordingly, for the reasons stated, the judgment of the
trial court is affirmed.
Affirmed.
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