Broadhead v. Broadhead

• Decision Date: 29 January 2008
• Docket Number: Record No. 0396-07-2.
• Parties: Tom A. BROADHEAD, Jr. v. Anne E. BROADHEAD.
• Court: Virginia Court of Appeals

655 S.E.2d 748

51 Va. App. 170

Tom A. BROADHEAD, Jr. v. Anne E. BROADHEAD.

Record No. 0396-07-2.

Court of Appeals of Virginia.

January 29, 2008.

Larry D. Diehl (Edward D. Barnes; Brandy M. Poss; Barnes & Diehl, P.C., Chesterfield, on briefs), for appellant.

Deanna D. Cook (Bremner, Janus, Cook & Stone, on brief), Richmond, for appellee.

Present: FRANK and CLEMENTS, JJ., and COLEMAN, S.J.

FRANK, Judge.

Tom A. Broadhead, Jr., father, petitioned the trial court to reduce his child support obligation to his former wife, Anne E. Broadhead, mother, based on a reduction in his earnings. After an ore tenus hearing, the trial court determined that father was voluntarily underemployed, comparing his current position and salary level to that he held at the time of the initial award. Accordingly, the trial court imputed income to father.¹ Based on its findings, the trial court ordered a reduction in child support from $890 to $800 per month. On appeal, father contends that the trial court erred in finding that he was voluntarily underemployed and in imputing income to him from the job he held at the time of the initial award. Both parties request an award of attorney's fees and costs associated with this appeal. For the following reasons, we reverse the decision of the trial court and remand for the trial court to determine whether father is voluntarily underemployed in his current position, in accordance with this opinion. Further, we decline to award attorney's fees and costs to either party.

BACKGROUND

Father and mother married in 1985 and had two children, one born in 1994 and one born in 1996. The trial court entered a final decree of divorce on April 3, 2001, and pursuant to an agreement by the parties, ordered father to pay $1,800 per month in child support to mother.² Both parties shared physical and legal custody of the children.

On January 31, 2003, the parties amended their agreement as to child support, reducing the amount father paid to mother to $890 per month.³ The parties never sought an order from the trial court reflecting this reduction; however, both parties abided by the new agreement for the next two years. During the instant proceedings in the trial court, mother maintained that, though the parties' 2003 agreement had never been entered as an order in court, she was bound by their agreement and did not seek any increase in the support amount.

In 2005, both parties filed motions seeking primary physical custody of the children, and mother also filed a motion seeking sole legal custody and seeking a change in support. On April 25, 2006, the trial court entered a consent decree resolving these issues, and the parties maintained joint legal and joint physical custody of the children. The trial court also granted mother's motion to withdraw her petition to amend child support.

On May 24, 2006, father filed a motion to decrease child support. In response, on June 2, 2006, mother filed a motion to increase child support and a motion for wage assignment. The trial court heard evidence ore tenus on August 28, 2006.

Father testified that, at the time the final decree was entered, he was working for Capital One in Richmond in the corporate counsel department, as the assistant general counsel in charge of the business line groups. Father earned about $150,000 in salary, with a potential to earn large bonuses. Between his salary and annual bonus, father earned approximately $250,000 in 2001. Mother also worked at Capital One at that time, earning approximately $61,000 per year. Both father and mother resided in the Richmond area.

In 2002, Capital One transferred father to a position heading the government regulatory regulation group, which operated as the lobbying arm for the company. Father had requested to retain his original position, as he did not have the "training and background to be an effective leader" of the regulatory regulation group. Father testified that the position required one to have fifteen to twenty years of experience in federal lobbying and governmental relations, while father had "virtually none." However, father stated that Capital One had instituted a policy of switching mid-to senior-level managers into different roles to "broaden their experience." Based on this policy, he was transferred.

Father stated that he was not very successful in his new position, and, in March 2003, he and his superiors reached a "mutual agreement" that father should leave that position so that Capital One could fill his role with someone "who had experience." Father's old position at Capital One in the corporate counsel department was no longer available, and he did not possess the proper business experience to transfer to another department. Under the terms of father's departure, he received severance pay for one year, at the same level of salary he had when employed, payment of his tuition to obtain a master's degree in business administration, and a statement by Capital One that father was leaving through no fault of his own.

While father was receiving his severance pay from Capital One, he took the opportunity to establish a private equity fund where he was the principal investor, shareholder, and partner. While working for this company, which currently operates under the name Mirabilis Ventures, father took no salary. Based on the bonus and severance pay he received from Capital One, father earned $283,000 in 2003. Father continued to pay $890 per month in child support to mother pursuant to their January 2003 agreement.

In August 2004, father began working in Baltimore with CitiFinancial as its general counsel. Father found this job through a recruiter. CitiFinancial paid father $160,000 in salary, with the potential to earn up to 100% of his salary in bonuses each year, for a potential total of $320,000. Father worked in Baltimore Monday through Friday, but continued to live in Richmond on the weekends to spend time with his children.

Initially, the children spent Monday and Tuesday with father's new wife while father worked in Baltimore. This arrangement prompted mother to file her motion seeking primary physical custody of the children.

In order to maintain joint physical custody of his children, father worked out an arrangement with CitiFinancial to work at home on Mondays and Tuesdays. This arrangement lasted four to five months, at which time CitiFinancial decided that they needed father in Baltimore full-time. Father determined that he was not willing to change his custody arrangement with his children, and resigned his position in August 2005.

Father returned to the same recruiter who had found him the job with CitiFinancial, but father testified that the recruiter found nothing available in the Richmond area at his salary level, given his experience. Father testified that he also reviewed the jobs advertised in the newspaper and on online job-posting websites, but that he could not find "any jobs in the Richmond area . . . that pa[id] anything like Capital One does."⁴ Father further stated that he "wasn't willing to work where [he] wouldn't be able to have custody of [his] children."

A few weeks after he left his position with CitiFinancial, father began working again for the private equity fund Mirabilis as a "senior strategist." Father's base salary was $150,000, "with the possibility of bonuses based on company performance." Father was paid a bonus of $20,000 in 2006 based on the company's performance in 2005. At the time of the August 2006 hearing, father was still working at Mirabilis.

At the hearing to change child support, mother conceded that she should have income imputed to her, as she voluntarily left her position at Capital One and was currently "underemployed." Mother also conceded that, based on the evidence at the hearing, there was not "sufficient evidence to grant [mother] an increase" in child support. However, mother argued that father did not meet his burden to prove that there was a material change in circumstances to reduce child support from $890 per month.

In an order dated January 17, 2007, the trial court found that there was a material change in circumstances since the 2001 order, in that both parties were earning substantially less money in 2006 than they had been in 2001.⁵ The trial court determined that, under the child support guidelines using the actual current income of both parties, father would be required to pay mother $751 per month. However, the trial court found that both parties were "voluntarily underemployed." The trial court noted specifically that father was not underemployed for leaving CitiFinancial, as "he left that position to retain his custody rights with his children at a time when there was a pending custody motion filed by [mother], because [father] worked out of town." Instead, the trial court found that father was voluntarily underemployed "because he voluntarily left Capital One where he was making a greater amount of money." The trial court never determined whether father was underemployed in his current position.

The trial court imputed income to mother in the amount of $7,750 per month, reflecting her level of salary and bonuses when she left Capital One in December 2005. The trial court then imputed income to father in the amount of $23,333 per month, reflecting his level of salary and bonuses when he left Capital One in March 2003. As a result of that imputed income, the trial court ordered father to pay mother $800 per month.

This appeal follows.

ANALYSIS

Voluntarily Underemployed

Father argues that the trial court erred in finding that he was voluntarily underemployed, and subsequently deviating from the child support guidelines.

"Under familiar principles we view [the] evidence and all reasonable inferences in the light most favorable to the prevailing party below. Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal...