McKee v. McKee

664 S.E.2d 505, 52 Va. App. 482, 2008 Va. App. LEXIS 378

• Court: Court of Appeals of Virginia
• Decided: August 5, 2008
• Docket: 0739071
• Status: Published

Opinions

ROBERT J. HUMPHREYS, Judge.

UPON A REHEARING EN BANC

This matter comes before the Court on a rehearing en banc following a divided panel opinion of this Court. Brian McKee (“husband”) appeals from a final decree of divorce, terminating his marriage to Barbara McKee (“wife”). He presents three issues for en banc review, all stemming from the circuit court’s award of spousal support to wife. He claims that the circuit court abused its discretion by (1) refusing to impute income to wife, (2) basing its award of support on speculative expenses claimed by wife and (3) providing for wife’s mortgage payment in the spousal support award.¹ In regard to husband’s second issue presented, we affirm the circuit court’s decision without further elaboration as the Court is evenly divided.² In regard to husband’s first and third issues presented, we affirm the circuit court for the following reasons.

I. Background

On appeal, we view the evidence in the light most favorable to wife, the party prevailing below. Congdon v. Congdon, 40 Va.App. 255, 258, 578 S.E.2d 833, 835 (2003). So viewed, the evidence in this case establishes the following.

Husband and wife married on August 22, 1987. Their marriage produced three children. In 1991, husband and wife agreed that wife would stop working in order to stay home •with their children. Husband is an ophthalmologist and, as such, was able to support the family solely on his salary. Throughout the marriage, wife stayed at home raising the couple’s three children, while husband focused on his professional pursuits. On April 3, 2004, husband abandoned the marriage. On June 29, 2004, wife filed for divorce.

The parties subsequently entered into a separation agreement (“the Separation Agreement”) that settled all matters pertaining to the distribution of the couple’s property. As part of the Separation Agreement, husband agreed to convey his interest in the marital home to wife. Wife agreed to become “solely responsible” and to “indemnify and hold Husband harmless from any liability” for the home’s $200,000 mortgage. As part of the agreement, husband and wife waived their right to equitable distribution by a court. The couple also made it explicit in the Separation Agreement that the agreement was to have no effect on several unresolved issues, including spousal support. In a paragraph entitled “EXTENT OF AGREEMENT” the Separation Agreement declared:

Husband and Wife further acknowledge that this Agreement does not contain any provisions as it relates to spousal support____ Husband and Wife agree that the terms of this Agreement shall have no effect on his or her claims or positions related to these matters and that each does hereby reserve all claims or position he or she has related to such matters which shall be determined by subsequent agreement between the parties or by determination by a court of competent jurisdiction. Husband and Wife further agree that neither waives any claim or position he or she has related to such matters despite any general or specific releases or waivers contained elsewhere in this Agreement.

On November 28, 2005, the circuit court held a hearing to address the issues left unresolved by the Separation Agreement. Wife’s attorney explained that wife intended to borrow $250,000 against the home in order to pay off the remaining $200,000 owed on the original mortgage and make necessary repairs to the home. In the expense sheet wife provided to the court, she listed $1,500 in monthly housing expenses attributable to the new $250,000 mortgage. Husband argued that wife was not entitled to spousal support covering her mortgage payment because she had agreed to assume the mortgage in the Settlement Agreement. Husband claimed that the court was bound by Gamble v. Gamble, 14 Va.App. 558, 421 S.E.2d 635 (1992), to exclude the mortgage payment from its determination of spousal support.

Also at the hearing, husband argued that the circuit court should impute income to wife because she was qualified to work and was not doing so. In support of husband’s position, Frances Charles DeMark (“DeMark”), a “vocational expert,” testified regarding wife’s earning capacity. He estimated that the annual earnings of respiratory therapists range from $40,000 to $52,000. DeMark testified that he had easily located advertisements of current openings for respiratory therapists at various hospitals in the area. He also stated that he “would imagine that there’s [sic] also some openings in doctor’s offices.” DeMark concluded that wife could earn at least $30,000 to $40,000 per year working as a full-time respiratory therapist. However, he conceded that, in order to care for her three children before and after school, as she did while married, wife would only be able to work part-time. DeMark did not testify as to whether part-time work was available to a respiratory therapist, nor did he provide any specific information about the availability of jobs or wife’s salary potential outside the field of respiratory therapy.

In regard to her earning capacity, wife testified that, although she is a registered therapist, she is not licensed to practice respiratory care in Virginia. She explained that when she previously worked as a respiratory therapist, Virginia did not require licensure. She testified further: “Today I believe continuing education credits and licensure is required [to practice respiratory care].” When asked about the licensure issue, DeMark testified that he did not know whether wife would have to become licensed or complete continuing education courses in order to work as a respiratory therapist. When asked, “Did you check to see what the education requirements were for somebody who had not worked for 14 years?,” DeMark responded simply “No.”

Wife also testified that she had applied to work as a substitute teacher in the public school system and was “on the list” to substitute at her children’s private school.

After the presentation of evidence by both parties, the circuit court granted spousal support to wife. The court denied husband’s request that the court impute income to wife stating:

I mean, it’s somewhat incredible to think that you can be out of the job market for the length of time that [wife has], and get a job earning 45 to 55, 60 thousand dollars a year. I mean, that would be the most remarkable thing I could imagine right now. I mean it’s just not—I mean, I can see you working somewhere, but the market is simply not that. I don’t think the expert has enough documentation to say that those things are readily and easily available and suitable, and I also don’t think it’s required.

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I’m not saying that [wife] shouldn’t try to work ... but I’m not sure that the law says the moment your husband leaves the wife has to go to work, under these circumstances.

The court also held that Gamble did not prohibit the consideration of wife’s mortgage payment in determining spousal support and accounted for the mortgage payment in the spousal support award.

Husband appealed the circuit court’s decision. A divided three-judge panel of this Court held that the circuit court abused its discretion by applying an improper legal standard in determining that income should not be imputed to wife. Relying on Gamble, the panel unanimously held that the circuit court erred by considering wife’s mortgage payment in determining spousal support.

By order dated February 29, 2008, this Court granted wife’s petition for rehearing en banc and stayed the mandate of the panel decision.

II. Analysis

A. Imputation of Income

“A court may under appropriate circumstances impute income to a party seeking spousal support.” Srinivasan v. Srinivasan, 10 Va.App. 728, 734, 396 S.E.2d 675, 679 (1990). “The decision to impute income is within the sound discretion of the trial court and its refusal to impute income will not be reversed unless plainly wrong or unsupported by the evidence.” Blackburn v. Michael, 30 Va.App. 95, 102, 515 S.E.2d 780, 784 (1999). Husband claims that wife was voluntarily unemployed and that the circuit court abused its discretion by refusing to impute income to wife. He claims that the circuit court abused its discretion as a matter of law by applying an erroneous legal standard when it refused to impute income. In the alternative, he argues that, based on the evidence, the circuit court was bound to impute income to wife. We disagree on both counts.

Generally, “one who seeks spousal support is obligated to earn as much as he or she reasonably can to reduce the amount of the support need.” Srinivasan, 10 Va.App. at 734, 396 S.E.2d at 679. However, so long as the spouse seeking support has not “unreasonably refused to accept employment,” the spouse is “entitled to a reasonable time to secure employment.” Id. Furthermore, in determining whether to impute income, the circuit court “must look to current circumstances and what the circumstances will be ‘within the immediate or reasonably foreseeable future,’ not to what may happen in the future.” Id. at 735, 396 S.E.2d at 679 (quoting Young v. Young, 3 Va.App. 80, 81-82, 348 S.E.2d 46, 47 (1986)).

In support of his argument that the circuit court applied an erroneous standard, husband points to the following statement made by the circuit court in its ruling. The court stated:

This is not a case of imputed income so much as it is some sort of challenge that you are voluntarily underemployed or unemployed, and that law imposes a duty upon you to be employed.

I don’t think that’s what the law is.

However, husband neglects the rest of the circuit court’s holding in which the court goes on to say:

I’m not saying that [wife] shouldn’t try to work and that that wouldn’t be helpful for your mind and give you some challenges, and that you shouldn’t look forward to that, but I’m not sure that the law says the moment your husband, leaves the wife has to go to work, under these circumstances.

The obligations and the resources of the parties, that each of you has done in this marriage make it so that [husband] should understand that while he may leave, the responsibilities to the three children and the wife reiriain for a reasonable length of time. I can’t predict ... what is going to happen in the future, and I think it would be unwise to do. All I can do is make my best decision today.

(Emphasis added).

When reading the circuit court’s entire statement in context, it is clear that it did not hold that wife never has to return to work. The court merely held, consistent with Srinivasan, that the law does not require wife to return to work immediately in order to avoid the imputation of income. Under that proper standard, the court held that husband’s responsibilities to his wife of seventeen years who, by mutual agreement, had not worked in fifteen years “remain for a reasonable length of time.” In light of the present circumstances and not “what may happen in the future,” id., the circuit court held that wife’s failure to secure employment did not require the imputation of income. Based upon the record before us, we hold that the circuit court exercised its discretion appropriately and did not apply an erroneous legal standard.

Nor did the circuit court abuse its discretion by refusing to impute income to wife. “The burden is on the party seeking the imputation to prove that the other parent was voluntarily foregoing more gainful employment, either by producing evidence of a higher-paying former job or by showing that more lucrative work was currently available.” Joynes v. Payne, 36 Va.App. 401, 421, 551 S.E.2d 10, 19-20 (2001). The party seeking the imputation is required to present evidence “sufficient to enable the trial judge reasonably to project what amount [of income] could be anticipated.” Id. at 421, 551 S.E.2d at 20. Husband, as the party seeking the imputation, had the burden to prove that “more lucrative work was available” to wife, as well as the amount of income she could reasonably earn.

Husband did not present any credible evidence that wife was voluntarily unemployed or of wife’s earning potential. Husband presented only one witness, DeMark, to testify regarding wife’s job prospects. After listening to DeMark’s opinions about wife’s earning capabilities, the circuit court specifically found that DeMark’s assessment was “somewhat incredible.” Referring to DeMark’s predictions, the circuit court stated, “I mean, that would be the most remarkable thing I could imagine right now.... I don’t think the expert has enough documentation to say that those things are readily and easily available and suitable.” “The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.” Sandoval v. Commonwealth, 20 Va.App. 133, 138, 455 S.E.2d 730, 732 (1995). Husband had the burden of proving that wife was voluntarily forgoing employment. He presented one witness, and the circuit court found that witness’ testimony was not credible.

Moreover, DeMark’s testimony was largely irrelevant because the evidence is uncontradicted that wife is not licensed in Virginia as a respiratory care provider. The only job openings and potential salaries that DeMark testified to were job openings and salaries for respiratory therapists. Wife, however, is not eligible to work as a respiratory therapist because she is not licensed to do so. It is “unlawful for any person not holding a current and valid license from the State Board of Medicine to practice as a respiratory care practitioner.” Code § 54.1-2955. Although wife previously worked as a respiratory therapist, she did so before Virginia required respiratory therapists to be licensed.³ Wife is not currently able to practice that profession and is therefore not eligible for any of the jobs about which husband presented specific evidence regarding wife’s potential income. Husband, thus, did not meet his burden of proving that “more lucrative work was currently available” to wife. Joynes, 36 Va.App. at 421, 551 S.E.2d at 20.

In determining whether to impute income, the circuit court “must look to current circumstances and what the circumstances will be within the immediate or reasonably foreseeable future.” Srinivasan, 10 Va.App. at 735, 396 S.E.2d at 679. The current circumstances are that wife cannot legally work as a respiratory therapist. She is currently trying to find employment that will not interfere with her maternal responsibilities. She has applied to be a substitute teacher in the public school system and has placed her name on the list of substitute teachers at her children’s private school. The circuit court found that husband failed to meet his burden to prove she is voluntarily unemployed, and the record supports that conclusion. Under these circumstances, we cannot say that the circuit court was plainly wrong or abused its discretion in refusing to impute income to wife. See Theismann v. Theismann, 22 Va.App. 557, 573, 471 S.E.2d 809, 817 (holding that the circuit court did not abuse its discretion in refusing to impute income to a spouse where the spouse “had made preliminary efforts at reentering the workforce and that she had not refused any offers of employment”), aff'd on reh’g en banc, 23 Va.App. 697, 479 S.E.2d 534 (1996).

B. Spousal Support

“Whether and how much spousal support will be awarded is a matter of discretion for the trial court.” Barker v. Barker, 27 Va.App. 519, 527, 500 S.E.2d 240, 244 (1998). “In determining the amount of an award, the court must consider all of the factors set forth in Code § 20-107.1.” Stubblebine v. Stubblebine, 22 Va.App. 703, 707, 473 S.E.2d 72, 74 (1996). Where the trial court has considered all of the statutory factors, and has provided written findings and conclusions identifying the statutory factors that support its ruling, we will not disturb that decision on appeal absent a clear abuse of discretion. Robinson v. Robinson, 50 Va.App. 189, 648 S.E.2d 314 (2007).

Husband claims that the circuit court abused its discretion by considering wife’s mortgage payment in the spousal support award. He argues that Gamble mandates that when a spouse, as part of a divorce, receives ownership of the marital home with an outstanding mortgage, that spouse cannot seek support to pay the mortgage on that home. Husband argues that, in such cases, circuit courts can never consider a spouse’s mortgage payment in determining spousal support. We disagree.

We consider our holding in Gamble a narrow one, based on unique facts. The chancellor in Gamble awarded the marital home to the wife as part of the distribution of property under Code § 20-107.3. 14 Va.App. at 561, 421 S.E.2d at 637. Along with her receipt of the marital home, the wife became liable for two mortgages encumbering the home. Id. at 576, 421 S.E.2d at 646. Those mortgage payments totaled $881 per month. Id. The chancellor then awarded the wife spousal support in the amount of $850. Id. However, in doing so, the chancellor committed several errors. First, the chancellor erred by failing to consider all of the wife’s income. Id. at 575, 421 S.E.2d at 645. The wife was renting a room in her home, for which she received $250 per month. The chancellor did not include that $250 in its determination of the wife’s spousal support need. Next, the chancellor’s award of $850 to the wife resulted in the wife having more disposable income than the husband. Id. When that was brought to the chancellor’s attention, the chancellor found that fact to have little significance. Finally, the chancellor also erroneously credited the wife with making one of the mortgage payments, when the husband was actually making the payment. Id. at 576, 421 S.E.2d at 646.

In light of all of those missteps by the chancellor, we held that the chancellor “effectively provided the financial means by which [the wife] could satisfy the monthly mortgage obligations on the marital property she sought and received [through equitable distribution].” Id. We noted further that “the chancellor’s reasoning [led] us to the conclusion that the award was fashioned primarily for that purpose.” Id. We held that the chancellor abused his discretion by awarding spousal support for the sole purpose of satisfying the wife’s mortgage payment. The chancellor was required to award spousal support in light of all of the factors in Code § 20-107.1, not solely the wife’s mortgage expenses.

Gamble does not stand for the proposition that a circuit court cannot consider a spouse’s mortgage payment in determining that spouse’s need for support. In fact, we clearly held in Gamble that the chancellor erred, not by considering the wife’s mortgage payments, but by misallocating the mortgage expenses in determining the wife’s need:

[T]he chancellor considered the monetary award and the required conveyance of the marital home to Mrs. Gamble and “the fact that she will be responsible for both the first and second mortgage payments” on that property in the total monthly amount of $881. The record reflects that the first mortgage payment of $372 monthly was an obligation listed on Mrs. Gamble’s expense sheet that the chancellor considered in determining her obligations and net monthly income under factor one. Thus, the second mortgage payment of $509 monthly, rather than $881, would have been the maximum amount properly considered by the chancellor under factor eight. Moreover, because Mr. Gamble had previously been making this second mortgage payment, the chancellor necessarily had to have considered that fact when making the adjustment to Mrs. Gamble’s monthly expenses under factor one. In short, either Mr. Gamble has less disposable net income than determined by the chancellor because he has not been credited with making the second mortgage payment or Mrs. Gamble has more disposable income than determined by the chancellor because she has been credited with an obligation that she does not have.

Id. (emphasis added). Not only did we explicitly hold that the chancellor could have “properly considered” the wife’s obligation on the mortgage, we remanded the case “[because] we [were] unable to determine that the amount of the award would be the same had the chancellor properly considered ... the payment of the second mortgage.” Id. at 577, 421 S.E.2d at 647. The chancellor erred by improperly crediting the wrong spouse with the mortgage obligation, not by considering the wife’s mortgage obligations.

The facts of this case illustrate quite well the inequity that would occur if we interpreted Gamble to mean what husband says it means. Husband claims that wife cannot include her $1,500 mortgage payment in her list of expenses, because the mortgage encumbers property she received as part of the divorce. At the same time, husband listed a $5,000 mortgage payment on his expense sheet that he presented to the circuit court'. That $5,000 amounted to over one third of husband’s total expenses and reduced his ability to pay by 25%. It would be fundamentally unfair to allow husband to reduce his ability to pay by including his mortgage payment as an expense, while refusing to allow wife to demonstrate her financial need by listing her mortgage payment as an expense.

Under Virginia’s statutory scheme, a circuit court is required to consider 13 factors in determining whether and in what amount to award spousal support. Code § 20-107.1. Among those factors are each spouse’s financial obligations and needs, the standard of living established during the marriage, the decisions regarding employment made by the couple during the marriage, property interests of the parties, and the equitable distribution of the property. In light of those factors, it is clear that a spouse’s reasonable housing related expenses must be considered when determining that spouse’s needs, obligations, and ability to pay spousal support. That is not to say that those expenses must be included in the ultimate award, but Code § 20-107.1 requires that the court consider them. The mere fact that a spouse’s housing expenses arise out of former marital property does not alter that spouse’s need for housing.

Here, husband and wife agreed over fifteen years ago that wife would not work, in order to stay home with the children. The couple established a standard of living during the marriage that included living in a 6,100 square foot, $875,000 home. As part of the Settlement Agreement, husband agreed that wife would remain in the home following the divorce. He agreed further, that her assumption of the mortgage pursuant to the agreement would have “no effect” on her right to request spousal support. Remaining in that home after the divorce came at the expense of $1,500 per month. The circuit court properly considered that expense as part of wife’s financial needs and obligations.

In the alternative, husband argues that wife breached the Separation Agreement by listing her mortgage payment as an expense. He claims that the provision in the Separation Agreement that wife would “indemnify and hold Husband harmless from any liability” on the mortgage prevents her from listing the mortgage payment as an expense when requesting spousal support. He reasons that by requesting support to assist her in paying the mortgage, wife is not holding him harmless from liability on the mortgage. Husband is incorrect. The “indemnify and hold harmless” provision does not prevent wife from seeking spousal support for her reasonable housing expenses. Rather, it merely assures that wife bears the obligation of the debt by requiring her to indemnify husband for any claims made by their mortgage creditor in case of default. See Bomar v. Bomar, 45 Va.App. 229, 237 n. 1, 609 S.E.2d 629, 633 n. 1 (2005). The “indemnify and hold harmless” agreement applies to each spouse’s rights surrounding their liability to the mortgage creditor, and in no way limits either spouse’s right to seek spousal support under Code § 20-107.1.⁴

III. Conclusion

For the foregoing reasons, we hold that the circuit court did not abuse its discretion by refusing to impute income to wife or by considering wife’s mortgage obligations in awarding spousal support. Accordingly, we affirm the circuit court’s decision.

Affirmed.

1 . Both parties requested, and were denied, attorney’s fees in the initial appeal of this case to a three-judge panel. However, neither party reiterated that request in their briefs en banc. Our grant of wife's petition for en banc review voided the decision of the panel only as to the issues before us en banc. See Ferguson v. Commonwealth, 52 Va.App. 324, 663 S.E.2d 505 (2008). Because neither party raised the issue of attorney’s fees en banc, we reinstate the mandate of the panel opinion on that issue. Id.

2 . Chief Judge Felton, Judges Kelsey, McClanahan, Beales and Millette voted to affirm. Judges Elder, Humphreys, Clements, Haley and Petty voted to reverse.

3 . Code § 54.1-2955 was amended to its current version in 1998. Prior to 1998, the statute did not require that a person be licensed in order to practice respiratory care. It merely forbid uncertified persons from using certain professional titles. Specifically, it stated:

It shall be unlawful for any person not holding a current and valid certificate from the State Board of Medicine to claim to be a respiratory therapy practitioner or to assume the title "Respiratory Therapist,” "Respiratory Therapist Registered,” “Certified Respiratory Therapist,” “Respiratory Therapist Practitioner,” “Respiratory Practitioner,” or "Certified Respiratory Therapy Practitioner,” or any similar term or to assume the designations “R.T.,” "R.T.R.,” "C.R.T.,” "R.T.P.,” "R.P.” or "C.R.T.P.” However, a person who has graduated from a duly accredited educational program in respiratory therapy shall be exempt from the preceding prohibition until he has taken and received the results of an examination required by the Board or until one year from the date of graduation, whichever occurs sooner. This section shall not be construed to prohibit any person from claiming to practice respiratory therapy using the title "Respiratory Therapy Assistant, R.T.A.” or other titles licensed or certified by the Commonwealth.

4 . It should also be noted that husband’s argument along these lines is even more tenuous in light of the fact that the mortgage that wife agreed to indemnify and hold husband harmless for no longer exists. Pursuant to the Separation Agreement, wife refinanced the debt by taking out a new loan and paying off the original mortgage; effectively removing husband from any liability on the mortgage.