COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Bumgardner Argued at Alexandria, Virginia
STEPHEN GLEN McCORD MEMORANDUM OPINION * BY v. Record No. 1714-98-4 JUDGE RUDOLPH BUMGARDNER, III JULY 27, 1999 KAREN SUE McCORD
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Jonathan C. Thacher, Judge
Robert B. Machen for appellant.
Peter M. Fitzner (John P. Snider; Matthews, Snider, Norton & Fitzner, on brief), for appellee.
Stephen G. McCord appeals the divorce decree granting Karen
Sue McCord spousal support. He alleges the trial court erred in
(1) failing to consider the appropriate statutory factors; (2)
using pendente lite support guidelines instead of the statutory
guidelines; (3) failing to consider the impact of the equitable
distribution award on his ability to pay; (4) failing to
consider the actual needs of the wife; and (5) failing to impute
income to the wife. Finding no error, we affirm the trial
court's award.
We view the evidence in the light most favorable to the
wife and will not disturb the court's decision unless it is
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. plainly wrong or without evidence to support it. See Carter v.
Carter, 223 Va. 505, 508-09, 291 S.E.2d 218, 220 (1982). So
viewed, the evidence established that the parties married in
1983, and the husband adopted the wife's daughter in 1988. They
separated in 1996, and since then the wife has resided in her
parents' home in Maryland. The husband and the daughter have
resided in the marital home, a three-bedroom home in Falls
Church.
The forty-five-year-old wife had a high school diploma and
worked full time until 1990 earning $27,000 annually as an
office manager for the Department of Navy. She was a GS-8
civilian governmental employee with 19.5 years of service. The
forty-four-year-old husband had a college degree and worked as a
Navy contract specialist earning approximately $81,000. In
1990, the parties agreed that the wife would quit her job. The
husband believed she would pursue her education; she believed
she would spend time with her daughter. The husband paid the
bills, and the wife took care of her daughter, housekeeping, and
the garden. From 1993 until the parties separated, the wife
worked part-time earning $8 per hour in a doctor's office.
Pursuant to a property settlement agreement, the husband
bought the wife's equity in the marital home for $34,500, and
awarded her twenty-five percent of his pension. He also paid
her $4,500 because she liquidated a pension during the marriage
to pay for his Jeep and household bills. The husband's current
- 2 - monthly expenses include $1,566 on the mortgage, $1,000 to the
wife, and the eighteen-year-old daughter's living expenses. He
had a credit card balance of approximately $6,000.
The wife testified that upon moving to Maryland she
submitted several dozen resumes to medical offices, responded to
newspaper advertisements, and inquired about government
employment. In October 1996, a friend told her she could be
reinstated at a GS-5 or GS-6 level and revest her pension.
However, no government positions were available for her.
In June or August 1997, the wife started working part-time
at a doctor's office, first at twelve and then at twenty-six
hours per week. She earned $788 per month, and full-time work
may be forthcoming. The wife did not submit any employment
applications for the three months prior to accepting her current
employment. She has not furthered her education and has no
intention of doing so. Her monthly expenses of $2,606.65
included anticipated costs of $675 per month in rent and $250 in
health insurance.
The husband contends that the wife was capable of earning
$30,000 per year with the government and chose not to do so. He
testified that upon re-employment with the government, she could
buy back her pension right, and after eleven years she would
have full retirement benefits by age fifty-five. He alleged she
did not accept re-employment because of the cost to reinstate
the pension.
- 3 - First, we consider whether the trial court erred in
determining that spousal support was appropriate. The trial
court must consider the statutory factors of Code § 20-107.1,
but is not "required to quantify or elaborate exactly what
weight or consideration it has given to each of the statutory
factors." Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d
422, 426 (1986).
In awarding the wife spousal support, the trial court
highlighted some of the factors it considered significant. It
found that the parties both contributed to the family's
well-being during the thirteen-year marriage, the husband had
greater earning capacity, the wife left full-time employment in
1990 with the husband's consent, their current employment was
the same as before the separation, and both were in good health.
The court is not required to recite each statutory factor.
Because its finding was based on the evidence, we find no abuse
of discretion. See id.
Next, we consider whether the court erred in setting the
amount of the award. The husband contends that the court failed
to consider his ability to pay and to consider the wife's actual
need. In setting a support award, the court must consider the
statutory factors of Code § 20-107.1, see Rowe v. Rowe, 24 Va.
App. 123, 139, 480 S.E.2d 760, 767 (1990), and balance the
wife's financial needs, her age and health, and her ability to
earn against the husband's ability to pay, considering his
- 4 - income and his ability to earn. See Via v. Via, 14 Va. App.
868, 870, 419 S.E.2d 432, 433 (1992). The amount awarded will
not be disturbed on appeal unless plainly wrong or without
evidence to support it. See Moreno v. Moreno, 24 Va. App. 190,
194-95, 480 S.E.2d 792, 794 (1997).
The husband has failed to show that the amount of support
was not commensurate with the guidelines used by the trial
court. Contrary to his assertion, the court was aware of his
monthly income and expenses. Based on the evidence of both
parties' income and expenses, their respective earning capacity,
the standard of living during the marriage, the duration of the
marriage, the contributions of each to the well-being of the
family, and the fact that both parties are employed in the same
capacity as when they separated, we find no error.
The husband also contends the court failed to consider the
wife's actual needs. He specifically notes that the wife's
expenses include rent and health insurance that she is not
currently paying. In setting support awards, courts 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." Srinivasan v. Srinivasan, 10
Va. App. 728, 735, 396 S.E.2d 675
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COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Bumgardner Argued at Alexandria, Virginia
STEPHEN GLEN McCORD MEMORANDUM OPINION * BY v. Record No. 1714-98-4 JUDGE RUDOLPH BUMGARDNER, III JULY 27, 1999 KAREN SUE McCORD
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Jonathan C. Thacher, Judge
Robert B. Machen for appellant.
Peter M. Fitzner (John P. Snider; Matthews, Snider, Norton & Fitzner, on brief), for appellee.
Stephen G. McCord appeals the divorce decree granting Karen
Sue McCord spousal support. He alleges the trial court erred in
(1) failing to consider the appropriate statutory factors; (2)
using pendente lite support guidelines instead of the statutory
guidelines; (3) failing to consider the impact of the equitable
distribution award on his ability to pay; (4) failing to
consider the actual needs of the wife; and (5) failing to impute
income to the wife. Finding no error, we affirm the trial
court's award.
We view the evidence in the light most favorable to the
wife and will not disturb the court's decision unless it is
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. plainly wrong or without evidence to support it. See Carter v.
Carter, 223 Va. 505, 508-09, 291 S.E.2d 218, 220 (1982). So
viewed, the evidence established that the parties married in
1983, and the husband adopted the wife's daughter in 1988. They
separated in 1996, and since then the wife has resided in her
parents' home in Maryland. The husband and the daughter have
resided in the marital home, a three-bedroom home in Falls
Church.
The forty-five-year-old wife had a high school diploma and
worked full time until 1990 earning $27,000 annually as an
office manager for the Department of Navy. She was a GS-8
civilian governmental employee with 19.5 years of service. The
forty-four-year-old husband had a college degree and worked as a
Navy contract specialist earning approximately $81,000. In
1990, the parties agreed that the wife would quit her job. The
husband believed she would pursue her education; she believed
she would spend time with her daughter. The husband paid the
bills, and the wife took care of her daughter, housekeeping, and
the garden. From 1993 until the parties separated, the wife
worked part-time earning $8 per hour in a doctor's office.
Pursuant to a property settlement agreement, the husband
bought the wife's equity in the marital home for $34,500, and
awarded her twenty-five percent of his pension. He also paid
her $4,500 because she liquidated a pension during the marriage
to pay for his Jeep and household bills. The husband's current
- 2 - monthly expenses include $1,566 on the mortgage, $1,000 to the
wife, and the eighteen-year-old daughter's living expenses. He
had a credit card balance of approximately $6,000.
The wife testified that upon moving to Maryland she
submitted several dozen resumes to medical offices, responded to
newspaper advertisements, and inquired about government
employment. In October 1996, a friend told her she could be
reinstated at a GS-5 or GS-6 level and revest her pension.
However, no government positions were available for her.
In June or August 1997, the wife started working part-time
at a doctor's office, first at twelve and then at twenty-six
hours per week. She earned $788 per month, and full-time work
may be forthcoming. The wife did not submit any employment
applications for the three months prior to accepting her current
employment. She has not furthered her education and has no
intention of doing so. Her monthly expenses of $2,606.65
included anticipated costs of $675 per month in rent and $250 in
health insurance.
The husband contends that the wife was capable of earning
$30,000 per year with the government and chose not to do so. He
testified that upon re-employment with the government, she could
buy back her pension right, and after eleven years she would
have full retirement benefits by age fifty-five. He alleged she
did not accept re-employment because of the cost to reinstate
the pension.
- 3 - First, we consider whether the trial court erred in
determining that spousal support was appropriate. The trial
court must consider the statutory factors of Code § 20-107.1,
but is not "required to quantify or elaborate exactly what
weight or consideration it has given to each of the statutory
factors." Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d
422, 426 (1986).
In awarding the wife spousal support, the trial court
highlighted some of the factors it considered significant. It
found that the parties both contributed to the family's
well-being during the thirteen-year marriage, the husband had
greater earning capacity, the wife left full-time employment in
1990 with the husband's consent, their current employment was
the same as before the separation, and both were in good health.
The court is not required to recite each statutory factor.
Because its finding was based on the evidence, we find no abuse
of discretion. See id.
Next, we consider whether the court erred in setting the
amount of the award. The husband contends that the court failed
to consider his ability to pay and to consider the wife's actual
need. In setting a support award, the court must consider the
statutory factors of Code § 20-107.1, see Rowe v. Rowe, 24 Va.
App. 123, 139, 480 S.E.2d 760, 767 (1990), and balance the
wife's financial needs, her age and health, and her ability to
earn against the husband's ability to pay, considering his
- 4 - income and his ability to earn. See Via v. Via, 14 Va. App.
868, 870, 419 S.E.2d 432, 433 (1992). The amount awarded will
not be disturbed on appeal unless plainly wrong or without
evidence to support it. See Moreno v. Moreno, 24 Va. App. 190,
194-95, 480 S.E.2d 792, 794 (1997).
The husband has failed to show that the amount of support
was not commensurate with the guidelines used by the trial
court. Contrary to his assertion, the court was aware of his
monthly income and expenses. Based on the evidence of both
parties' income and expenses, their respective earning capacity,
the standard of living during the marriage, the duration of the
marriage, the contributions of each to the well-being of the
family, and the fact that both parties are employed in the same
capacity as when they separated, we find no error.
The husband also contends the court failed to consider the
wife's actual needs. He specifically notes that the wife's
expenses include rent and health insurance that she is not
currently paying. In setting support awards, courts 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." Srinivasan v. Srinivasan, 10
Va. App. 728, 735, 396 S.E.2d 675, 679 (1990) (quoting Young v.
Young, 3 Va. App. 80, 81-82, 348 S.E.2d 46, 47 (1986)).
The evidence showed that the wife's expense report was
based on circumstances in the reasonably near future. She
- 5 - planned to rent an apartment and testified that rent in the area
was approximately $675 per month. Upon divorce, she would have
to pay her own health insurance. The wife's expenses of $2,606
were not purely speculative. Our review of the record reveals
no evidence that the court abused its discretion in determining
the amount of the support award.
Finally, we consider whether the trial court erred in
failing to impute income to the wife. In setting spousal
support, a court may impute income to a party voluntarily
underemployed. See Calvert v. Calvert, 18 Va. App. 781, 784,
447 S.E.2d 875, 876 (1994); Stubblebine v. Stubblebine, 22 Va.
App. 703, 710, 473 S.E.2d 72, 75 (1996) (en banc). Whether a
person is voluntarily underemployed is a factual determination.
In evaluating a request to impute income, the trial court must
"consider [the parties'] earning capacity, financial resources,
education and training, ability to secure such education and
training, and other factors relevant to the equities of the
parents and the children." Niemiec v. Dept. of Soc. Servs.,
Div. of Child Support Enforcement, 27 Va. App. 446, 451, 499
S.E.2d 576, 579 (1998). Furthermore, the husband has the burden
of proving that the wife was voluntarily foregoing more gainful
employment. See id.
The husband mentioned that the wife could work at a GS-5 or
GS-6 level. However, he did not know the salary ranges or if
opportunities were actually available. He presented no evidence
- 6 - regarding wife's specific skills or the value of those skills.
The wife testified that she looked for full-time employment and
wanted to move out of her parents' home. The evidence showed
that the wife was leading a lifestyle below the one she was
accustomed to during the marriage. The husband failed to
establish that the wife was voluntarily underemployed or that
she had rejected full-time employment.
The trial court found that the wife worked part-time as she
had prior to the parties' separation, that there existed a
possibility that she could work full-time in her current
employment, and that the husband had greater earning capacity
and the ability to pay. The evidence supports the refusal to
impute income to the wife.
For the foregoing reasons, we affirm the trial court's
award of spousal support.
Affirmed.
- 7 -