COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Fitzpatrick
Argued at Alexandria, Virginia
GARY SARGENT
v. Record No. 1981-94-4 OPINION BY
JUDGE JOHANNA L. FITZPATRICK
PATRICIA VAUGHT SARGENT AUGUST 22, 1995
FROM THE CIRCUIT COURT OF FREDERICK COUNTY
James L. Berry, Judge
Peter W. Buchbauer (Douglas M. Swift, Jr.; James J.
McGuire; Swift & Buchbauer, P.C., on briefs), for
appellant.
Mark A. Vann (Thomas J. Chasler; Chasler, Adrian and
Bowman, P.L.C., on brief), for appellee.
Gary Sargent (husband) appeals the trial court's decisions
on custody, support, and grounds of divorce. He contends that
the trial court erred in: (1) failing to give adequate
consideration to the desire of the parties' son, Matthew, to live
with his father and awarding custody of Matthew to Patricia
Vaught Sargent (wife); (2) failing to impute income to wife in
determining child and spousal support; (3) refusing to include an
earned income tax credit and pendente lite spousal support in
wife's income for purposes of computing child and spousal
support; (4) awarding wife a divorce based on separation for more
than one year; and (5) failing to consider wife's desertion when
awarding spousal support. Finding no error, we affirm the trial
court on all issues.
BACKGROUND
The parties were married on March 6, 1976. They had two
children, Dustin, born August 16, 1981, and Matthew, born May 16,
1985. On July 9, 1993, wife filed for divorce on the ground of
cruelty, and on July 12, 1993, she left the marital home.
Husband filed for divorce on the ground of desertion on July 26,
1993. 1
On July 27, 1993, the court appointed a guardian ad litem
for the two children in connection with the divorce proceeding.
The guardian filed a report on August 2, 1993 in anticipation of
the pendente lite hearing scheduled for August 4, 1993,
recommending that Dustin remain with his father and Matthew
remain with his mother. In an August 11, 1993 pendente lite
order, the court placed the children in the joint custody of the
parties, with husband having primary care of Dustin and wife
having primary care of Matthew. The August 11, 1993 order also
provided for payment of temporary spousal and child support by
husband.
At a July 29, 1994 final hearing, several witnesses,
including wife, testified that Matthew preferred to live with his
father. The guardian ad litem relied on her second, detailed
report filed July 14, 1994, in which she stated:
[Matt] expressed the wish that he live with
his father, and the guardian is under the
impression that Matt feels that if he lives
with him he will have more time to play with
his cousins (who live nearby) and Dustin.
* * * * * * *
1
The record in this case was a written statement of facts
pursuant to Rule 5A:8(c).
2
Despite Matt's verbalized preference, the
guardian recommends that Matt remain in the
physical custody of Mrs. Sargent. The
guardian feels that Matt is doing well in her
custody now and that many of Matt's reasons
about living in his father's house can be
addressed by expanding visitation,
particularly in the summer. In addition, it
is troubling to the guardian that Dustin
harbors much resentment towards his mother,
and the guardian feels that there is a chance
that Matt could also formulate similar
resentment if he lived primarily with Dustin
and his father.
Wife testified that Matthew received good grades, A's and B's,
and that her work schedule allowed her to spend considerable time
with Matthew after school. She also noted that Dustin's grades
were not as good, and she felt this was because his father did
not spend enough time with him after school. Matthew's classroom
aide and wife's sister testified that Matthew and his mother had
a good relationship and that wife was a good mother to Matthew.
The parties stipulated that husband's current salary was
$4,025 per month and wife's current salary was $754.96 per month.
The evidence established that, when the parties first married in
1976, wife was a factory worker and earned over $11,600 in 1980.
Wife has a high school education. Husband also worked in a
factory full-time and attended college at night, obtaining his
degree in about eight years. In 1983, at husband's request, wife
stayed home to care for Dustin and the household. Except for a
brief return to factory work, wife was a homemaker until 1990,
when she became a teacher's aide at Matthew's school. As a
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teacher's aide, wife works 182 days per year, seven hours per
day. At the hearing, husband testified that he believed that
wife could earn $22,000 if she returned to the full-time factory
work that she performed in the early years of the marriage. He
also presented evidence showing that wife would be entitled to an
earned income tax credit of $1434 if she had custody of Matthew.
Wife testified that she felt it was in Matthew's best interests
that she continue working as a teacher's aide and that a factory
job would entail irregular hours and child care expenses.
In the divorce decree of July 29, 1994, the trial court:
(1) awarded wife a divorce on the ground of separation for more
than one year pursuant to Code § 20-91(9)(a); (2) allowed wife to
retain physical custody of Matthew; (3) refused to impute
additional income to wife when computing child and spousal
support; and (4) awarded wife spousal support. Husband appeals
each of these findings.
CUSTODY OF MATTHEW
Husband argues that the trial court erred in failing to
consider adequately Matthew's preference to live with him. See
Code § 20-124.3(7). We disagree.
Code § 20-124.2(B) requires that, "[i]n determining custody,
the court shall give primary consideration to the best interests
of the child." The court must consider the factors in Code
§ 20-124.3 in deciding what custody arrangement is in the child's
best interests, including:
1. The age and physical and mental
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condition of the child, giving due
consideration to the child's changing
developmental needs;
2. The age and physical and mental
condition of each parent;
3. The relationship existing
between each parent and
each child, giving due
consideration to the
positive involvement with
the child's life, the
ability to accurately
assess and meet the
emotional, intellectual
and physical needs of the
child; 4. The needs of
the child, giving due
consideration to other
important relationships
of the child, including
but not limited to
siblings, peers and
extended family members;
5. The role which each parent has played
and will play in the future, in the
upbringing and care of the child;
6. The propensity of each parent to
actively support the child's contact and
relationship with the other parent, the
relative willingness and demonstrated ability
of each parent to maintain a close and
continuing relationship with the child, and
the ability of each parent to cooperate in
matters affecting the child;
7. The reasonable preference of the
child, if the court deems the child to be of
reasonable intelligence, understanding, age
and experience to express such a preference;
8. Any history of family abuse as that
term is defined in § 16.1-228; and
9. Such other factors as the court deems
necessary and proper to the determination.
(Emphasis added). Although a child's preference "should be
considered and given appropriate weight," it does not control the
custody determination and is just one factor to be considered.
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Bailes v. Sours, 231 Va. 96, 99, 340 S.E.2d 824, 826 (1986). As
long as the trial court examines the factors, it is not "required
to quantify or elaborate exactly what weight or consideration it
has given to each of the statutory factors." Woolley v. Woolley,
3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986).
In the divorce decree, the trial court stated: "[T]he Court
has considered the factors set out in Section 20-124.3 of the
Code of Virginia . . . . [Wife] has prevailed on Factors 3, 5 and
6. The Court is of the opinion that Matthew is not of sufficient
age to express a preference." The court was presented with
uncontroverted evidence from several sources that Matthew, who
was nine at the time of the hearing, preferred to live with his
father. The guardian ad litem recommended that Matthew remain in
the physical custody of his mother after personally meeting with
him on several occasions and determining his wish that he live
with his father so that he could play with his brother and
cousins more frequently. The trial court was fully apprised of
the child's wishes but specifically found that Matthew was not of
sufficient age to decide with whom he should live and that other
factors favored the mother retaining custody. The record proved
that Matthew was nine years of age. Moreover, the record
contains evidence from which the trial judge could have concluded
that factors 3, 5, and 6 outweighed other considerations.
Matthew's preference to live with his father was but one
consideration for the trial judge and did not control the
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determination of which placement would be in Matthew's best
interests. We hold that the trial court properly considered the
statutory factors and awarded custody of Matthew to wife.
SUPPORT
(1) IMPUTATION OF INCOME
Husband next argues that the trial court erred in refusing
to impute income to wife when determining both child and spousal
support. The trial court awarded wife child support based on the
child support guidelines of Code § 20-108.2 and refused to impute
additional income to wife in calculating the amount. The court
also awarded wife spousal support after it considered all of the
factors listed in Code § 20-107.1. We recognize that decisions
concerning both child and spousal "support rest within the sound
discretion of the trial court and will not be reversed on appeal
unless plainly wrong or unsupported by the evidence." Calvert v.
Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875, 876 (1994).
A trial court may impute income to the spouse receiving
child or spousal support under appropriate circumstances. See
Code § 20-108.1(B)(3) (child support); Srinivasan v. Srinivasan,
10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990) (spousal
support). In child support cases, Code § 20-108.1 provides a
rebuttable presumption that the amount of child support indicated
by the guidelines contained in Code § 20-108.2 is the correct
support amount. See Barnhill v. Brooks, 15 Va. App. 696, 699,
427 S.E.2d 209, 212 (1993). A court must consider the factors in
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Code § 20-108.1(B) in deciding whether to deviate from the
presumptive amount. These factors include "[i]mputed income to a
party who is voluntarily unemployed or under employed." Code
§ 20-108.1(B)(3). Any child support award must be based on
circumstances existing at the time the award is made. Payne v.
Payne, 5 Va. App. 359, 364, 363 S.E.2d 428, 431 (1987).
In determining spousal support, the trial court must
consider the earning capacity of the parties. Code
§ 20-107.1(1).
The party seeking spousal support must earn
as much as he or she reasonably can to reduce
the amount of the support needed, and may not
choose a low-paying position that penalizes
the other spouse. Under appropriate
circumstances, a court may impute income to
the party seeking spousal support.
Konefal v. Konefal, 18 Va. App. 612, 614, 446 S.E.2d 153, 154
(1994) (citation omitted) (emphasis added).
The record established that wife had a monthly shortfall of
over $900 and showed her need for both spousal and child support.
Husband had the ability to pay support. However, he argues that
wife's job as a teacher's aide resulted in a voluntary cut in pay
from the factory job that wife held when the parties were first
married, and as such, wife was not utilizing her full earning
capacity. Wife testified that a factory job, if available, would
involve irregular hours and additional child care expenses. As a
teacher's aide with hours similar to Matthew's school hours, she
could spend time with Matthew after school and did not have to
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pay for child care.
The only evidence of wife's potential earnings in a factory
job was husband's opinion that she could earn $22,000. No
evidence was presented about the availability of a factory
position or the hours or shifts that would be required.
Additionally, wife's most recent work experience during the past
four years was as a teacher's aide. Imputation of income is
within the trial judge's discretion and is just one factor to be
considered in setting child and spousal support amounts. In this
case, credible reasons supported the trial judge's decision that
imputation of income was not appropriate, and no abuse of
discretion occurred.
(2) INCLUSION OF TAX CREDIT AND PENDENTE LITE SUPPORT
Husband contends that, in calculating wife's income for
support analysis, the trial court should have included: (1) an
earned income tax credit of $1434, and (2) the spousal support
under the preexisting pendente lite order.
Code § 20-108.2(C) provides the definition of "gross income"
for purposes of the child support statute:
For purposes of this section, "gross
income" shall mean all income from all
sources, and shall include, but not be
limited to, income from salaries, wages,
commissions, royalties, bonuses, dividends,
severance pay, pensions, interest, trust
income, annuities, capital gains, social
security benefits except as listed below,
workers' compensation benefits, unemployment
insurance benefits, disability insurance
benefits, veterans' benefits, spousal
support, rental income, gifts, prizes or
awards. Gross income shall be subject to
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deduction of reasonable business expenses for
persons with income from self-employment, a
partnership, or a closely held business.
"Gross income" shall not include benefits
from public assistance programs as defined in
§ 63.1-87, federal supplemental security
income benefits, or child support received.
For purposes of this subsection, spousal
support included in gross income shall be
limited to spousal support paid pursuant to a
pre-existing order or written agreement and
spousal support shall be deducted from the
gross income of the payor when paid pursuant
to a pre-existing order or written agreement
between the parties to the present
proceeding.
(Emphasis added).
Husband argues that the trial court was required to include
a $1434 earned income tax credit as income. We disagree.
Potential tax benefits are not listed as part of gross income
under Code § 20-108.2. Moreover, the trial court did not err in
failing to accept husband's calculations of the potential value
of the tax credit in wife's future income tax filings.
Husband's contention that wife's pendente lite spousal
support award also must be used in computing future child support
is without merit. Code § 20-103(A) provides for pendente lite
support:
In suits for divorce, annulment and separate
maintenance, and in proceedings arising under
subdivision A 3 or L of § 16.1-241, the court
having jurisdiction of the matter may, at any
time pending a suit pursuant to this chapter,
in the discretion of such court, make any
order that may be proper (i) to compel a
spouse to pay any sums necessary for the
maintenance and support of the petitioning
spouse . . . .
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Thus, "[t]he legislature has provided a statutory scheme for the
support of a spouse during the pendency of a suit and thereafter.
The law provides for only two types of support, either pendente
lite pursuant to Code § 20-103 or support due a former spouse
pursuant to Code § 20-107.1." Weizenbaum v. Weizenbaum, 12 Va.
App. 899, 903, 407 S.E.2d 37, 40 (1991) (emphasis added).
Husband argues that wife's spousal support under the
pendente lite order is "spousal support paid pursuant to a
pre-existing order" and must be included in income for child
support calculation. Code § 20-108.2(C). "The plain, obvious,
and rational meaning of a statute is always preferred to any
curious, narrow or strained construction; a statute should never
be construed so that it leads to absurd results." Branch v.
Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992).
The rational definition of "preexisting order" in the context of
Code § 20-108.2(C) is an order that has continuing effect and
that provides a spouse with an income source. A pendente lite
support award, by its nature, ends when a spousal or child
support order is entered under Code § 20-107.1 or Code
§ 20-108.2. If the trial court included the pendente lite
support amount in wife's income for purposes of calculating a
more permanent support arrangement, wife would in effect be
charged with income that she no longer receives. Thus, we hold
that the court correctly excluded the pendente lite award when
determining the final child and spousal support amounts.
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GROUNDS OF DIVORCE
Lastly, husband asks that we reconsider the Supreme Court's
decision in Alls v. Alls, 216 Va. 13, 216 S.E.2d 16 (1975), 2 and
hold that the trial court erred in awarding wife a divorce on the
ground of a one-year separation when she originally filed on
cruelty grounds. This Court is bound by the holding in Alls. We
hold that, assuming that the evidence was sufficient to support
husband's allegation of desertion by wife, "the trial court was
not compelled 'to give precedence to one proven ground of divorce
over another.'" Williams v. Williams, 14 Va. App. 217, 220, 415
S.E.2d 252, 253-54 (1992) (quoting Robertson v. Robertson, 215
Va. 425, 426, 211 S.E.2d 41, 43 (1975)). "Where dual or multiple
grounds for divorce exist, the trial judge can use . . . sound
discretion to select the grounds upon which . . . to grant the
divorce." Lassen v. Lassen, 8 Va. App. 502, 505, 383 S.E.2d 471,
473 (1989). The evidence established that the parties had been
living separate and apart for more than one year, and the trial
court properly awarded wife a divorce on the ground of one-year
separation based on the evidence presented. Husband's argument
that the trial judge failed to consider wife's desertion in
determining whether to award spousal support is without merit
because the trial judge made no finding of desertion.
2
In Alls, the Supreme Court of Virginia held that "one spouse
is not guilty of legal desertion in separating from the other
after the institution of a suit for divorce or during its
pendency." 216 Va. at 14, 216 S.E.2d at 17.
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Accordingly, the decision of the trial court is affirmed.
Affirmed.
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