Leslie Warren Nichols v. Lorinda K. Nichols (Bosch)

• Court: Court of Appeals of Virginia
• Decided: April 28, 1998
• Docket: 1441974
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Coleman and Senior Judge Duff Argued at Alexandria, Virginia

LESLIE WARREN NICHOLS MEMORANDUM OPINION * v. Record No. 1441-97-4 BY JUDGE CHARLES H. DUFF APRIL 28, 1998 LORINDA K. NICHOLS (BOSCH)

FROM THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY William Shore Robertson, Judge Susan C. Minkin for appellant.

Julia S. Savage (Walker, Jones, Lawrence, Duggan & Savage, on brief), for appellee.

Leslie Warren Nichols (father) appeals the decision of the

circuit court denying his petition to recalculate child support

payable to Lorinda K. Nichols (mother) on behalf of the parties'

two children. Father contends that the trial court erred by (1)

failing to impute income to mother; (2) failing to calculate the

guideline amount of child support or to make adequate written

findings supporting its deviation from the guidelines; and (3)

ruling that changed circumstances resulting from father's new

family could not justify a reduction in his child support

payments. We affirm the decision of the trial court.

As the party seeking to modify the current child support

payment, father bore the burden to prove by a preponderance of

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. the evidence both a material change in circumstances and that the

change warranted a reduction in his payments. See Antonelli v.

Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 118-19 (1991). See

also Code § 20-108. "In discharging this burden, [the party]

seeking a reduction in support payments must also make a full and

clear disclosure about his ability to pay, and he must show his

claimed lack of ability to pay is not due to his own voluntary

act or because of his neglect." Antonelli, 242 Va. at 154, 409

S.E.2d at 119. Imputation of Income

Father contends that the trial court erred when it failed to

impute income to mother because she was underemployed. See Code

§ 20-108.1(B)(3). "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." Calvert v. Calvert, 18 Va. App. 781,

784-85, 447 S.E.2d 875, 876-77 (1994). In a prior order, the

trial court encouraged mother to seek full-time employment.

However, mother presented evidence that her current part-time

employment schedule of four different jobs reduced or eliminated

certain expenses, such as child care, which she would incur

working full-time. Mother estimated she would need to earn

$35,000 annually to cover those increased expenses and still

receive the same net income. Moreover, she worked approximately

the same number of part-time hours as she worked at the time of

2 the previous hearing. Cf. Brody v. Brody, 16 Va. App. 647, 432

S.E.2d 20 (1993) (imputing income to mother who quit a full-time

position). The trial court found that it would not be

cost-effective for mother to work full-time. "The judgment of

the trial court concerning the extent to which the wife's earning

capacity should affect . . . child support awards will not be set

aside unless it appears from the evidence that such judgment is

plainly wrong or without evidence to support it." Kaufman v. Kaufman, 7 Va. App. 488, 494, 375 S.E.2d 374, 377 (1988).

Because credible evidence supports the court's finding, we find

no error.

Written Findings

Under Code § 20-108.1(B), the amount of child support

calculated pursuant to the guidelines set out in Code § 20-108.2

is presumed to be correct. See Richardson v. Richardson, 12 Va.

App. 18, 21, 401 S.E.2d 894, 896 (1991). Any deviations from the

guidelines are to be set out in written findings which explain

why the guidelines would be inappropriate or unjust. Id. at

21-22, 401 S.E.2d at 896-97.

The previously set child support deviated from the

guidelines. The trial court found that father failed to present

sufficient evidence of changed circumstances warranting a

modification of the previously set child support. Therefore, as

the trial court found insufficient evidence to warrant a change

in the child support payments, it was not required to recalculate

3 the basic guideline payment or reiterate in writing its reasons

for deviating from that amount. See Hiner v. Hadeed, 15 Va. App.

575, 577, 425 S.E.2d 811, 812 (1993).

4 Father's Circumstances

Among the factors to be evaluated by the trial court

considering a deviation from the guideline amount of child

support is the "[a]ctual monetary support for other children,

other family members or former family members." Code

§ 20-108.1(B)(1). See Farley v. Liskey, 12 Va. App. 1, 3-4, 401

S.E.2d 897, 898-99 (1991). Father presented evidence that his

living expenses had increased since the last hearing, but

admitted that the increased expenses resulted from the need to

accommodate his new wife and her child. Father also admitted

that his new wife does not receive any child support. No

evidence showed that expenses attributable to the parties' sons

had increased. We find no error in the trial court's conclusion

that father's voluntary assumption of additional financial

obligations on behalf of his new family did not justify a

reduction in the amount of support paid for his sons. Accordingly, the decision of the circuit court is affirmed.

Considering all of the circumstances presented, we deny mother's

motion for attorney's fees and costs expended in this appeal. Affirmed.

5 Coleman, J., dissenting.

In my opinion, the appellant proved material changes in

circumstance that were sufficient to have required the trial

court to recalculate and redetermine the parents' respective

child support obligations. Accordingly, I dissent from the

majority holding.