Saxon v. Zirkle, s. 12–FM–69

• Decision Date: 14 August 2014
• Docket Number: 12–FM–971.,Nos. 12–FM–69,12–FM–560,12–FM–386,12–FM–235,s. 12–FM–69
• Citation: 97 A.3d 568
• Parties: Lori A. SAXON, Appellant, v. Todd D. ZIRKLE, Appellee, and Jane Khoury and Olivia Baker, Appellees.
• Court: D.C. Court of Appeals

97 A.3d 568

Lori A. SAXON, Appellant,

v.Todd D. ZIRKLE, Appellee,andJane Khoury and Olivia Baker, Appellees.

Nos. 12–FM–69, 12–FM–235, 12–FM–386, 12–FM–560, 12–FM–971.

District of Columbia Court of Appeals.

Argued Feb. 20, 2014.

Decided Aug. 14, 2014.

Robert Maxwell for appellant.

Todd D. Zirkle, pro se.

Peter N. Mann, Washington, DC, filed a brief for appellee Todd D. Zirkle.

Jane Khoury of the District of Columbia Volunteer Lawyers Project, with whom Olivia Baker was on the brief, pro se.

Before EASTERLY and McLEESE, Associate Judges, and FERREN, Senior Judge.

McLEESE, Associate Judge:

Following two bench trials, the trial court granted Ms. Saxon and Mr. Zirkle an absolute divorce, denied Ms. Saxon's request for alimony, awarded the parties joint legal custody of their child, modified Mr. Zirkle's child-support obligations, and imposed sanctions against Ms. Saxon and her counsel, in the form of attorney's fees to be awarded to the District of Columbia Volunteer Lawyers Project (“DCVLP”).¹ In these appeals, Ms. Saxon challenges the trial court's imputation of $24,000 a year in income to Ms. Saxon, for purposes of determining alimony, child support, and sanctions. Ms. Saxon further argues that that the trial court erred by awarding fees to DCVLP. We affirm.

I

The following facts are undisputed. Ms. Saxon and Mr. Zirkle married in the District of Columbia and had one child. In November 2009, Ms. Saxon and Mr. Zirkle separated. Mr. Zirkle filed a complaint in Superior Court seeking custody of the child. The trial court subsequently ordered Mr. Zirkle to pay $1,368 per month in child support. The trial court also appointed two volunteer attorneys associated with DCVLP to serve as pro bono guardians ad litem (“GALs”) for the child in all matters concerning custody and visitation. The appointment order provided that the GALs “shall have all rights of a party to the case” and “shall serve without compensation.”

In January 2011, Mr. Zirkle filed for divorce in the Superior Court. The trial court bifurcated the divorce trial from the custody trial. After the divorce trial, the trial court issued a judgment of absolute divorce, denying Ms. Saxon's request for alimony payments. In denying the request, the trial court imputed income to Ms. Saxon in the amount of $24,000, becauseMs. Saxon had been “voluntarily unemployed” since the separation.

After the custody trial, the trial court issued an order reducing Mr. Zirkle's child-support obligation from $1,368 to $980 per month. Among other things, the reduction reflected Ms. Saxon's imputed income of $24,000. The trial court also awarded joint legal custody of the child to Ms. Saxon and Mr. Zirkle, with Ms. Saxon having primary physical custody of the child and Mr. Zirkle having a right of reasonable visitation and the right to make final decisions regarding the child's safety and general welfare.

During the course of the lengthy pretrial proceedings, DCVLP moved for sanctions against Ms. Saxon and her counsel under Superior Court Domestic Relations Rule 11 (authorizing imposition of sanctions, including requirement to pay attorney's fees of opposing party, where party or attorney files frivolous or abusive motions). The trial court granted the motion, on the ground that Ms. Saxon and her counsel had filed motions that were not well-grounded in fact and that were intended to cause delay and to needlessly increase the cost of the litigation. The trial court required Ms. Saxon and her attorney to pay DCVLP $10,740 to compensate the GALs for the work they did in responding to those motions and in litigating the issue of sanctions.

II.

We address first Ms. Saxon's challenges to the trial court's decisions to impute $24,000 in income to Ms. Saxon in determining alimony, child support, and Rule 11 sanctions. “A trial court has a considerable measure of discretion in determining the appropriate amount of alimony and child support based on its determination of net income.” Araya v. Keleta, 65 A.3d 40, 48 (D.C.) (internal quotation marks omitted), cert. denied, ––– U.S. ––––, 134 S.Ct. 426, 187 L.Ed.2d 282 (2013). “That determination will not be disturbed on appeal unless the [trial] court clearly abused its discretion.” Id. (internal quotation marks omitted). Furthermore, we defer to the trial court's findings of fact unless they are “plainly wrong or without evidence to support [them].” D.C.Code § 17–305(a) (2012 Repl.).

The issue of imputation first arose at an alimony hearing. During the course of that hearing, the following evidence was admitted on that issue: Ms. Saxon had a bachelor's degree from college; had two real-estate licenses; had been in the real-estate profession for over twenty-four years; and had earned as much as $189,000 per year as a real-estate agent. Ms. Saxon testified that her income had dropped recently, because she had stayed home to home-school the child, but that the child was now in school. Ms. Saxon testified that she was trying to return to real estate, but that the real-estate market was depressed, which limited her ability to earn income. She had one current listing, which was her own home, and had earned little income as a real-estate agent since the market declined. She had earned only $850 in the past year from “odd jobs,” such as buying and selling antiques, and was living off of her $40,000 retirement. Ms. Saxon had explored the possibility of substitute teaching in Virginia. She had spoken with three principals in Virginia schools who told her that schools were “always looking for [substitutes].” Ms. Saxon also testified that she expected to be able to substitute teach. Without objection, the trial court took judicial notice of the fact that the minimum salary for a substitute teacher in Fairfax County, Virginia was approximately $24,000.

Based on this evidence, the trial court found that Ms. Saxon could have earned more income than she was currently earning, whether as a substitute teacher or as a real-estate agent. Specifically, the trial court found that Ms. Saxon was qualified and appeared to be employable, that there was no evidence that Ms. Saxon was looking diligently for employment, that she could earn at least $24,000 as a substitute teacher, and that she was voluntarily limiting her income. The trial court therefore imputed $24,000 in income to Ms. Saxon.

The issue of imputation arose again with respect to child support. At a hearing in January 2012, the trial court considered additional evidence about Ms. Saxon's efforts in real estate and buying and selling antiques. The trial court noted that it had already imputed $24,000 for purposes of alimony, and at the hearing Ms. Saxon did not object to the propriety of imputing the same amount of income to her for purposes of determining child support. As a result, based on the prior record and the additional evidence, the trial court again imputed $24,000 in income to Ms. Saxon. The trial court noted that to impute income for purposes of child support it had to find that the party to whom income was being imputed was “voluntarily unemployed or underemployed as a result of the parent's bad faith or deliberate effort to suppress income [or] to avoid or minimize the parent's child support obligation....” D.C.Code § 16–916.01(d)(10) (2012 Repl.). The trial court did not expressly make such a finding as to Ms. Saxon.

Finally, the imputation issue also arose when the trial court was determining Ms. Saxon's ability to pay the Rule 11 sanctions. The trial court relied on its previous discussions of imputed income in determining Ms. Saxon's earning potential, which informed the trial court's finding that Ms. Saxon had the ability to pay.

We conclude that there was sufficient evidence to support the conclusion that Ms. Saxon was voluntarily unemployed and that $24,000 in income should be imputed to her in all three contexts at issue. As to voluntary unemployment, there was evidence that Ms. Saxon had a bachelor's degree and prior work experience as a real-estate agent, had earned as much as $189,000 a year as a real-estate agent, and was not diligently looking for employment, even though she expected to be able to substitute teach. That evidence permitted the trial judge reasonably to conclude that Ms. Saxon had voluntarily limited her income for purposes of affecting the child-support determination. Cf. Freeman v. Freeman, 397 A.2d 554, 556 (D.C.1979) (record supported trial court's finding that husband voluntarily reduced income by quitting well-paying job and making minimal effort to find employment commensurate with skills).²

With respect to the amount of income imputed, Ms. Saxon herself indicated that she was exploring substitute teaching, had been told by three different principals that schools in Virginia were “always looking for [substitutes].” Furthermore, although there was no evidence or finding as to whether Ms. Saxon had all of the credentials required to qualify as a substitute teacher in Fairfax County, her acknowledged expectation that she would be able to substitute teach there provided sufficientsupport for the trial court's reliance on that prospect. In addition, Ms. Saxon does not dispute that the minimum salary for a substitute teacher in Fairfax County, Virginia is approximately $24,000. This evidence adequately supported the trial court's determination to impute $24,000 in income to Ms. Saxon.

We are not persuaded by Ms. Saxon's arguments to the contrary. First, Ms. Saxon argues, for the first time on appeal, that the trial court erred in placing the burden on her of showing that her unemployment was not voluntary. Rather, she argues, Mr. Zirkle—the party seeking to impute income—had the burden of proving that Ms. Saxon was voluntarily unemployed.³ Assuming without deciding that Ms. Saxon is correct, we conclude that any resulting error was harmless, because we are confident that the trial court's ruling did not turn on the statement about burden of proof....