Niblett v. Niblett

• Citation: 779 S.E.2d 839,65 Va.App. 616
• Decision Date: 15 December 2015
• Docket Number: Record No. 0716–15–1.
• Court: Court of Appeals of Virginia
• Parties: Amanda Swanson NIBLETT v. Jason Daniel NIBLETT.

65 Va.App. 616

779 S.E.2d 839

Amanda Swanson NIBLETT

v.Jason Daniel NIBLETT.

Record No. 0716–15–1.

Court of Appeals of Virginia, Richmond.

Dec. 15, 2015.

Breckenridge Ingles, Gloucester (Monique W. Donner; Martin, Ingles & Hensley, LTD, on briefs), for appellant.

Richard C. Langhorne, Gloucester, for appellee.

Present: PETTY, BEALES, JJ., and FRANK, Senior Judge.

PETTY, Judge.

Amanda Swanson Niblett ("mother") appeals the trial court's refusal to impute income to Jason Daniel Niblett ("father"), for purposes of establishing father's initial child support obligation, after the court found father was voluntarily unemployed because of his incarceration. We conclude the trial court erred in not considering father's recent past earnings; accordingly, we reverse and remand to the trial court.

I. 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, 835 (2003). In this case, father was the prevailing party in the trial court.

Mother and father were married on or about May 8, 2010 and have two children. Mother was granted a divorce on the grounds of father's adultery with a minor female who was residing in the home of the parties. Father was convicted of crimes related to his sexual conduct with the minor female and sentenced to an active three-year penitentiary sentence. He has remained incarcerated since his arrest in March 2014.

Father testified that before he was incarcerated he had worked for nine and a half years as a car salesman. He also testified that he had some training in vehicle reconditioning and had a two-year degree in arts and sciences. In 2013, father earned approximately $85,700 as a commissioned car salesman. After father's arrest in March 2014, his employer continued to pay him a base salary of $3000 per month through December 2014. Father's 2014 W–2 listed wages of approximately $54,500 from this job.

At the April 3, 2015 hearing regarding child support, the parties did not dispute that due to father's incarceration he had no income for purposes of calculating the presumptive child support amount. Nevertheless, mother argued that father was voluntarily unemployed because he voluntarily chose the conduct that resulted in his incarceration. Mother therefore argued that the trial court should impute father's pre-incarceration income to him, and thus deviate from the presumptive child support guidelines.

Father argued that he would have no source of income until he was released from confinement. Father further argued that it was speculative whether any car dealership would hire him in the future now that he had two felony convictions and was required to register as a sex offender. Father urged that even if the court found that father was voluntarily unemployed, it should nevertheless refuse to impute income because future earnings were speculative.

In response, mother argued that although future income might be speculative, case law requires the court to look to past wages, and to consider what father "was making before his criminal acts got him locked up." Mother asked the court to impute those recent past earnings to father.

The court found father was voluntarily unemployed because he was unable to work due to his own voluntary acts. The court declined to impute income, however. The court reasoned that based on this Court's opinion in Donnell v. Donnell, 20 Va.App. 37, 455 S.E.2d 256 (1995), it was precluded from imputing income. Although the court was "not sure [it] like[d] that result," it reasoned that "to pick an amount out of the air, essentially, as to what his income would be would be speculating as against the requirements of the Jacobs[ v. Jacobs, 219 Va. 993, 995, 254 S.E.2d 56, 58 (1979),] and the Payne[ v. Payne, 5 Va.App. 359, 363, 363 S.E.2d 428, 430 (1987),] case[s]." The court then awarded the presumptive statutory minimum amount of $104 per month. Mother timely appealed.

II. ANALYSIS

A. STANDARD OF REVIEW

"We begin our analysis by recognizing the well-established principle that all trial court rulings come to an appellate court with a presumption of correctness. Thus, we will not invalidate a court's decree unless the only reasonable interpretation thereof requires invalidation." Stiles v. Stiles, 48 Va.App. 449, 453, 632 S.E.2d 607, 609 (2006) (quoting Riggins v. O'Brien, 263 Va. 444, 448, 559 S.E.2d 673, 675–76 (2002) ).

"The determination of child support is a matter of discretion for the circuit court, and therefore we will not disturb its judgment on appeal unless plainly wrong or unsupported by the evidence." Oley v. Branch, 63 Va.App. 681, 699, 762 S.E.2d 790, 799 (2014). Child support decisions, like "[s]pousal support determinations[,] typically involve fact-specific decisions best left in the 'sound discretion' of the trial court." Brandau v. Brandau, 52 Va.App. 632, 641, 666 S.E.2d 532, 537 (2008) (quoting McKee v. McKee, 52 Va.App. 482, 489, 664 S.E.2d 505, 509 (2008) (en banc )). The court's discretion, however, is not without bounds. The General Assembly has included mandatory steps that a court must follow when exercising its discretion in calculating child support. See generally Code § 20–108.1. As a result, the court's calculation of child support obligations is a combination of mandatory steps and broad discretion. "[U]nless it appears from the record that the circuit court judge has abused his discretion by not considering or by misapplying one of the statutory mandates, the child support award will not be reversed on appeal." Milam v. Milam, 65 Va.App. 439, 451, 778 S.E.2d 535, 541 (2015).

An abuse of discretion ... can occur in three principal ways: when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment.

Landrum v. Chippenham & Johnston–Willis Hosps., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011) (alteration in original) (quoting Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir.1984) ).

B. THE STATUTORY SCHEME FOR DETERMINING CHILD SUPPORT

"The court's paramount concern when awarding child support is the best interest of the children." Stiles, 48 Va.App. at 456, 632 S.E.2d at 611 ; L.C.S. v. S.A.S., 19 Va.App. 709, 717, 453 S.E.2d 580, 585 (1995) ("In setting an award of child support, the 'primary issue before a trial court judge is the welfare and best interests of the child, not the convenience or personal preference of a parent.' " (quoting Brody v. Brody, 16 Va.App. 647, 651, 432 S.E.2d 20, 22 (1993) )). "The court must consider the basic needs of the child, the parent's ability to pay, and to the extent that the parent is able to provide more than the basic necessities of life, the degree to which the child should reasonably share in his or her parents' prosperity." Conway v. Conway, 10 Va.App. 653, 658, 395 S.E.2d 464, 466–67 (1990).

1. The Rebuttable Presumption

The starting point in any award of child support is the presumptive calculations set out in Code § 20–108.2. In calculating child support, a "court is [first] required to determine the presumptive child support amount by using the statutory guidelines." Id. "The guidelines in Code § 20–108.2 require a court to calculate the 'presumptive amount of child support as a percentage of the parents' combined gross monthly incomes.' " L.C.S., 19 Va.App. at 717, 453 S.E.2d at 585 (quoting Barnhill v. Brooks, 15 Va.App. 696, 699, 427 S.E.2d 209, 212 (1993) ). "The amount of child support under the child support guidelines must be based on the parents' actual gross income." West v. West, 53 Va.App. 125, 135, 669 S.E.2d 390, 395 (2008) (citing Code § 20–108.2(C) ). "There is a rebuttable presumption that the amount determined in accordance with the statutory guidelines, Code § 20–108.2, is the correct award." Brooks v. Rogers, 18 Va.App. 585, 591, 445 S.E.2d 725, 728 (1994).

2. Imputation of Income for Voluntary Unemployment

Nevertheless, the amount calculated by applying the guidelines is presumptive only; other evidence may be sufficient to rebut that presumption. Section 20–108.1 expressly identifies fourteen factors that are relevant in determining if the trial court is warranted in varying from the presumptive amount, and the statute additionally provides authority for the court to consider "[s]uch other factors as are necessary to consider the equities for the parents and child." Code § 20–108.1(B)(15). One of the Code § 20–108.1 factors is: "Imputed income to a party who is voluntarily unemployed or voluntarily under-employed...." Code § 20–108.1(B)(3).

Even "[b]efore the presumptive guidelines came into effect and the law specifically allowed the imputation of income, the Virginia Supreme Court had already recognized that the key factor [in determining child support] was the spouse's ability to pay and not necessarily the amount of actual earnings."¹ Bishop Cochran v. Cochran, 14 Va.App. 827, 830, 419 S.E.2d 419, 421 (1992) (citing Hawkins v. Hawkins, 187 Va. 595, 600, 47 S.E.2d 436, 439 (1948) ). Section 20–108.1(B)(3)"does not expressly require the court to impute income to a parent found to be voluntarily unemployed, but such a reading is implicit both in the text of the statute itself and in this Court's prior opinions interpreting that text." Hamel v. Hamel, 18 Va.App. 10, 12–13, 441 S.E.2d 221, 222 (1994) ; see also Blackburn v. Michael, 30 Va.App. 95, 103, 515 S.E.2d 780, 784 (1999) (reversing a trial court's refusal to impute income to voluntarily unemployed mother for spousal support purposes even though it had imputed income for child support purposes). This requirement naturally flows from the principle that "[t]he general rule in Virginia is that the amount...