COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, AtLee and Senior Judge Clements
UNPUBLISHED
KEVIN S. GODWIN
MEMORANDUM OPINION*
v. Record No. 0004-15-1 PER CURIAM
OCTOBER 20, 2015
KATHY L. GODWIN
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
(Charles E. Haden, on brief), for appellant.
(Shannon D. Lemm; Hofheimer Family Law Firm, P.C., on brief),
for appellee.
Kevin S. Godwin (husband) appeals a final decree of divorce. Husband argues that the trial
court erred by (1) imputing income to him for spousal support purposes and (2) allowing Kathy L.
Godwin (wife) to call husband’s former employer as a witness after she rested her case and husband
rested his case because the witness was not a rebuttal witness. Upon reviewing the record and
briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily
affirm the decision of the trial court. See Rule 5A:27.
BACKGROUND
“When reviewing a trial court’s decision on appeal, we view the evidence in the light
most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”
Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003) (citations omitted).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Husband and wife married on September 14, 2001 and separated on November 20, 2012.
In June 2013, husband filed a complaint for divorce. Wife filed an answer and cross bill, to
which husband filed an answer.
On May 30, 2014, husband and wife entered into a marital and separation agreement.
They reserved the issue of spousal support for the trial court to determine.1
The parties appeared before the trial court on May 30, 2014. Wife requested an award of
spousal support for a defined duration.
Wife presented evidence from several witnesses on May 30, 2014. The trial court heard
that during the marriage, wife worked at Georgia Pacific. In 2007, she was in a car accident.
She sustained injuries that exacerbated nerve damage from a previous car accident. As a result
of the accident in 2007, wife is unable to work. She receives approximately $1,900 per month in
disability.
Wife also presented evidence that husband worked “off and on” during the marriage.
Husband last worked at Gill’s Refrigeration and Air Conditioning. He earned $19 per hour and
worked forty hours per week.
After hearing from several witnesses, counsel and the court agreed to continue the case
until June 9, 2014. The trial court explained that husband would testify at that time and
“Mr. Gill may be available at that time.” Husband’s former employer, Richard Gill, was
summoned to appear on May 30, 2104, but he was not present.
On June 9, 2014, the parties appeared before the trial court. Husband elected not to
testify. Wife called Gill to testify. Husband objected because wife rested her case and husband
presented his case. Husband argued that wife should not be allowed to call Gill as her witness
1
The parties also reserved the issues of wife’s request for attorney’s fees and costs and
husband’s request for the payment of medical bills. These issues were not appealed, so this
Court will not address the trial court’s rulings on these issues.
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because it was “improper” to reopen wife’s case and Gill was not a rebuttal witness. The trial
court overruled husband’s objection.
Gill testified and described husband as an “excellent worker.” He said that husband
worked for him from April through October 2012. He also explained that husband quit this job
after he had “an altercation” with a project manager.
After hearing the parties’ argument, the trial court took the matter under advisement. On
June 10, 2014, the trial court issued a letter opinion. It awarded spousal support to wife in the
amount of $700 per month for six years. Husband filed objections to the letter opinion, and wife
responded. On October 15, 2014, the trial court issued another letter opinion. It clarified and
supplemented its June 10, 2014 letter opinion, but did not alter the spousal support award. On
November 7, 2014, the trial court entered an order memorializing its rulings. On December 22,
2014, the trial court entered a final decree of divorce, which included the spousal support award.
This appeal followed.
ANALYSIS
I. Assignment of error #1
Husband argues that the trial court erred by imputing income to him for spousal support
purposes. Husband contends he was not voluntarily unemployed. He asserts that he injured his
back after he left his employment with Gill’s Air Conditioning and was unable to work.
Furthermore, he argues that even if he could work, wife failed to prove that there were available
jobs for him.
A trial court has broad discretion in awarding spousal support, and its ruling will not be
overturned unless there is an abuse of discretion. Brooks v. Brooks, 27 Va. App. 314, 317, 498
S.E.2d 461, 463 (1998) (citations omitted). “Whether a person is voluntarily unemployed or
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underemployed is a factual determination.” Blackburn v. Michael, 30 Va. App. 95, 102, 515
S.E.2d 780, 784 (1999).
When calculating the amount of spousal support to be awarded, the court may “impute
income to a party” who “choose[s] a low paying position that penalizes the other spouse.”
Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990); see Code
§ 20-107.1(E)(9) (requiring the court to consider the “earning capacity, including the skills,
education and training of the parties and the present employment opportunities for persons
possessing such earning capacity” in computing the amount of spousal support); Stubblebine v.
Stubblebine, 22 Va. App. 703, 708, 473 S.E.2d 72, 74 (1996) (en banc) (“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.”).
Wife presented evidence that husband frequently quit his jobs during the marriage. She
testified that he would decide to “take a break” from working and collect unemployment. He last
worked at Gill’s Air Conditioning where he earned approximately $40,000 per year. His
employer said that husband was an “excellent worker.” However, husband voluntarily quit this
job and did not seek further employment.
Husband contends he was unable to work due to back problems. However, the trial court
found that “there was no reliable testimony to support that position.” “It is well established that
the trier of fact ascertains a witness’ credibility, determines the weight to be given to their
testimony, and has the discretion to accept or reject any of the witness’ testimony.” Street v.
Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en banc) (citation omitted).
The trial court further held that husband had the ability to pay spousal support, but “chose
not to work or pay.” Contrary to husband’s arguments, the trial court could use husband’s past
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earnings to determine how much he was capable of earning. See Brody v. Brody, 16 Va. App.
647, 651, 432 S.E.2d 20, 22 (1993) (“[A] trial court may impute income based on evidence of
recent past earnings.”).
Based on the evidence, the trial court did not err in imputing income to husband and
ordering him to pay spousal support to wife.
II. Assignment of error #2
Husband argues that the trial court erred in allowing wife to call Gill as a witness after
she rested her case-in-chief and husband rested his case. Husband contends the trial court’s
decision to reopen wife’s case was “arbitrary” and Gill’s testimony was a “surprise” to him.
“Motions to reopen an evidentiary record or to reconsider a prior ruling involve matters
wholly in the discretion of the trial court.” Thomas v. Commonwealth, 62 Va. App. 104, 109,
742 S.E.2d 403, 406 (2013) (citations omitted).
In addition to considering newly discovered evidence and legal
error as the primary bases for the exercise of discretion in
reopening a hearing, Virginia courts have also included among the
factors to be applied in the analysis whether a party seeking
rehearing had “ample opportunity to present evidence” at the initial
hearing; whether the moving party’s request to take additional
evidence was timely; whether the moving party asserted the claim
requiring rehearing at the initial hearing; and whether the grant of a
motion to reopen a hearing would cause prejudice, delay,
confusion, inconvenience, surprise or injustice to the opposing
party.
Shooltz v. Shooltz, 27 Va. App. 264, 269 n.1, 498 S.E.2d 437, 440 n.1 (1998) (internal citations
omitted).
At the May 30, 2014 hearing, the parties agreed they would continue the case for husband
to testify and for wife to call Gill to testify since he did not appear at the last court date. On June
9, 2014, husband elected not to testify, and wife called Gill to testify. Husband objected. The
trial court reminded husband that they had agreed to this procedure at the last hearing. It also
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stated it would exercise its discretion in allowing wife to call Gill to testify. The trial court
explained that if Gill had appeared on May 30, 2014, wife would have called him in her
case-in-chief.
Contrary to husband’s arguments, the decision was not arbitrary, and there was no
surprise when wife called Gill to testify. The parties had discussed the fact that Gill was
summoned to appear at the May 30, 2014 hearing, but he was not present. They had agreed that
wife could call him at the June 9, 2014 hearing.
Accordingly, the trial court did not abuse its discretion in allowing wife to call Gill as a
witness.
III. Appellate attorney’s fees and costs
Wife asks this Court to award her attorney’s fees and costs incurred on appeal. See
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Having reviewed
and considered the entire record in this case, we hold that wife is entitled to a reasonable amount
of attorney’s fees and costs, and we remand for the trial court to set a reasonable award of
attorney’s fees and costs incurred by wife in this appeal.
CONCLUSION
For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.
We remand this case to the trial court for determination and award of the appropriate appellate
attorney’s fees and costs, which also should include any additional attorney’s fees and costs
incurred at the remand hearing.
Affirmed and remanded.
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