Calvert v. Calvert

• Decision Date: 09 August 1994
• Docket Number: No. 0693-93-3,0693-93-3
• Citation: 18 Va.App. 781,447 S.E.2d 875
• Parties: Vernon Maxwell CALVERT, Jr. v. Kathleen May McLaughlin CALVERT. Record
• Court: Virginia Court of Appeals

Page 875

447 S.E.2d 875

18 Va.App. 781

Vernon Maxwell CALVERT, Jr. v. Kathleen May McLaughlin CALVERT.

Record No. 0693-93-3.

Court of Appeals of Virginia.

Aug. 9, 1994.

Margaret K. Garber, Roanoke (Harvey S. Lutins, Lutins and Shapiro, on brief), for appellant.

Edwin C. Stone, Radford (Stone, Hamrick, Harrison & Turk, on brief), for appellee.

Present: COLEMAN, KOONTZ and ELDER, JJ.

ELDER, Judge.

Vernon Maxwell Calvert, Jr., husband, appeals the trial court's spousal and child support awards to Kathleen May McLaughlin Calvert, wife. On appeal, he contends that the trial court erred in determining husband's annual income to be $50,000 in calculating child and spousal support, and in reclassifying a portion of the spousal support award as child support in order to lessen the tax consequences to wife. For the reasons that follow, we reverse and remand to the trial court for further proceedings.

I.

The parties married in 1967 and had three children, two of whom were emancipated at the time of the divorce. They separated on August 20, 1990, and wife filed for divorce on February 8, 1991. Both parties hold master's degrees. Wife works as a teacher. Until 1986, husband worked as an assistant hospital administrator, earning about $40,000 per year. At the time, the couple's combined income was more than $60,000. Husband voluntarily quit his job, "retir[ing] at age 43," stating that he "would much rather make non-taxable income."

In calculating spousal and child support, the commissioner noted that wife had urged him to impute income to husband based on his voluntary underemployment. The commissioner concluded "that it is not necessary to impute income to him.... [I]t appears that [husband] has a high degree of financial expertise ... and business acumen, and ... is capable of earning at least $50,000 per year at whatever business or profession he would set his mind to." After examining husband's income tax returns for the years through 1990, the commissioner found that husband's "income would be at least $50,000.00." In 1986, for example, his gross income from his administrative position and car wash earnings was $59,442. In calculating husband's income for 1987 to 1990, the commissioner considered income from gain, depreciation, business loss, section 179 expenses, interest income, and refinancing of the marital home. Using income levels of $30,500 for wife and $50,000 for husband, the commissioner calculated child support under the guidelines to be $827 per month. However, based on the standard of living of wife and child during the marriage and previous agreement for the payment of $1,200 per month, all of which was designated as child support, the commissioner recommended that the payments of $1,200 be reapportioned at $1,150 per month child support and $50 spousal support. The trial court agreed, noting that it was

appropriate to deviate from the guidelines because [husband] does not now have taxable income.... [Establishing] child support at a higher level and alimony at a lower level at the present time ... [will] minimize income taxes payable by [wife]. If [husband] begins to earn taxable income, he may petition this Court to revise the requirement for child support payments.

Husband excepted to the commissioner's report and the final decree.

II.

A.

Husband contests the method used to determine his income in calculating child and spousal support. Decisions concerning both types of 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. Young v. Young, 3 Va.App. 80, 81, 348 S.E.2d 46, 47 (1986) (child support); Collier v. Collier, 2 Va.App. 125, 129, 341 S.E.2d 827, 829 (1986) (spousal support). "In awarding spousal support, the chancellor ... is guided by the ... factors that are set forth in Code § 20-107.1. When the chancellor has given due consideration to these factors, his determination will not be disturbed on appeal except for a clear abuse of discretion." Collier, 2 Va.App. at 129, 341 S.E.2d at 829. In addition, "[t]hose spouses deemed entitled to support have the right to be maintained in the manner to which they were accustomed during the marriage, but their needs must be balanced against the other spouse's financial ability to pay." Dukelow v. Dukelow, 2 Va.App. 21, 26, 341 S.E.2d 208, 210 (1986).

The procedure for calculating child support is somewhat more rigid. In all such proceedings originating after July 1, 1989, the court must apply the provisions of Code §§ 20-107.2 and 20-108, which require calculation of a "presumptive" amount of child support as a percentage of the parents' combined gross monthly incomes. See, e.g., O'Brien v. Rose, 14 Va.App. 960, 963, 420 S.E.2d 246, 248 (1992). Code § 20-108.2 establishes a rebuttable presumption that this percentage is appropriate under the circumstances, and if the trial judge wishes to deviate from the presumptive amount for any of the reasons set forth in Code § 20-108.1, he or she must make findings of fact to justify the deviation. O'Brien, 14 Va.App. at 964, 420 S.E.2d at 248-49.

Under either statutory scheme, a court may impute income to a party who is voluntarily unemployed or underemployed. See Code §§ 20-107.1(1), 20-108.1(B)(3); Cochran v. Cochran, 14 Va.App. 827, 830, 419 S.E.2d 419, 421 (1992); Srinivasan v. Srinivasan, 10 Va.App. 728, 734, 396 S.E.2d 675, 679 (1990). Imputation of income is based on the principle that a spouse should not be allowed to choose a low paying position that penalizes the other spouse or any children entitled to support. See Cochran, 14 Va.App. at 830, 419 S.E.2d at 421; Srinivasan, 10 Va.App. at 734, 396 S.E.2d at 679.

In this case, the commissioner's findings as to husband's income are ambiguous. After stating that he was "of the opinion that it is not necessary to impute income to [husband]," the commissioner asserted that husband "is capable of earning at least $50,000.00 per year at whatever business or profession he would set his mind to." The commissioner then found, based on an examination of...