William Bernard SimmonsvJoanne(Lindsey)Hairston,et

• Court: Court of Appeals of Virginia
• Decided: March 20, 2001
• Docket: 1145003
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Humphreys and Agee Argued at Salem, Virginia

WILLIAM BERNARD SIMMONS MEMORANDUM OPINION * BY v. Record No. 1145-00-3 JUDGE RUDOLPH BUMGARDNER, III MARCH 20, 2001 JOANNE (LINDSEY)(SIMMONS) HAIRSTON, F/K/A JOANNE (LINDSEY) SIMMONS

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY Charles B. Flannagan II, Judge

John B. Coleman (David L. Scyphers; Scyphers & Austin, P.C., on brief), for appellant.

Thomas R. Scott, Jr. (Benjamin A. Street; Street, Street, Street, Scott & Bowman, on brief), for appellee.

William Bernard Simmons and JoAnne Hairston were divorced

by decree entered February 2, 1998. The final decree, not

entered until April 18, 2000, set child support at $1,051.87 per

month. The father contends the trial court erred in computing

the child support because it (1) failed to give him credit for

support he provided a third child, (2) failed to impute

sufficient income to the mother, and (3) failed to use the

shared custody guidelines when fixing child support. He also

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. appeals the award of attorney's fees to the mother. Finding no

error, we affirm.

The parties were married February 20, 1983 and had two

children. They separated in May 1995, and the mother filed for

divorce in May 1996. The husband fathered a third child

out-of-wedlock in December 1996. At the time of the support

hearing, the father lived with the mother of the third child and

voluntarily paid her $2,000 per month support.

The father contends he should receive credit for the

support paid his third child. The "actual monetary support a

party pays for other children" is a factor the trial court must

consider when computing child support. Code § 20-108.1(B);

Farley v. Liskey, 12 Va. App. 1, 3-4, 401 S.E.2d 897, 898-99

(1991). The record shows the trial court did consider that

factor: "I will be revisiting the suggestion that there is

another child that the Court should be taking into

consideration. . . . I do find that an appropriate

consideration, but I don't have a rote formula for doing so. It

will depend on all the various circumstances that exist."

Code § 20-108.1(B) does not require the trial court to give

a credit or an offset equal to the support the husband paid for

his third child; it only requires consideration of that fact.

The trial court was considering that factor as it noted while

fixing the support at $1,051.87, "father was voluntarily

furnishing almost twice as much support for his third child and

- 2 - the mother of that child than for the two children which are the

subject of this proceeding." The trial court has broad

discretion in awarding child support, and its awards will not be

reversed on appeal unless plainly wrong or unsupported by the

record. Auman v. Auman, 21 Va. App. 275, 277, 464 S.E.2d 154,

155 (1995). The trial court did not err in its method of

calculation, and it did not abuse its discretion as it

considered the husband's support of his third child.

The father contends the trial court imputed insufficient

income to the wife. The trial court did impute $1,000 to the

wife, but the husband argues the trial court should have imputed

at least $2,000. The mother was a college graduate who became

an insurance agent during the marriage. Her earnings were as

high as $40,000 to $77,775. When she produced that, she

generated significant premiums from her husband's company and

the companies that dealt with it. That premium base evaporated

with the divorce litigation. Her income as an insurance agent

also decreased because of changes in the insurance industry that

increased competition for business.

By February 1999, the wife stopped selling insurance and

sought other employment but was only working thirty hours per

week. The husband's salary had remained at $65,000 for the last

few years, but he eliminated his debt service expense by

declaring personal bankruptcy. The mother had increased

expenses due to her daughter's illness and the need to pay for

- 3 - her own health insurance. The father's bankruptcy left her

solely responsible for their joint obligations.

The party seeking to impute income has the burden of proof.

Brody v. Brody, 16 Va. App. 647, 651, 432 S.E.2d 20, 22 (1993).

No evidence supported imputing $2,000 income to the wife. The

husband offered no evidence about the employment opportunities

available to the wife given her education and experience. The

trial court imputed income of $1,000 per month but found "the

evidence before me does not make a case for imputing income

beyond" that amount. The trial court noted the wife's high

income as an insurance agent "was artificial" and no evidence

suggested that it could be duplicated.

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.'"

Blackburn v. Michael, 30 Va. App. 95, 102, 515 S.E.2d 780, 784

(1999) (citation omitted). The record shows that it did this.

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.

Code § 20-108.1(B)(3); Saleem v. Saleem, 26 Va. App. 384, 393,

494 S.E.2d 883, 887 (1998); Stubblebine v. Stubblebine, 22 Va.

App. 703, 707, 473 S.E.2d 72, 74 (1996) (en banc) (court's

- 4 - decision is presumptively correct). Given the circumstances of

this case, we find no error in the trial court's decision.

Next, the father contends the trial court erred by using

the sole custody guidelines rather than the shared custody

guidelines. The father did not raise an objection before the

trial court or except to the final order. During oral argument,

the father conceded that he had not objected. Accordingly, we

will not address this issue. Rule 5A:18; Lee v. Lee, 12 Va.

App. 512, 515, 404 S.E.2d 736, 737 (1991) (en banc); Ohree v.

Commonwealth, 26 Va. App. 299, 308-09, 494 S.E.2d 484, 488-89

(1998).

Finally, we consider whether the trial court erred in

awarding the mother $2,500 in attorney's fees. The wife

incurred legal fees of $13,140.88 in this case. The trial court

awarded the wife legal fees of $2,500, less than twenty percent

of her expense. The trial court has broad discretion so long as

the attorney's fees award is reasonable under the circumstances.

Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558

(1987); McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d

159, 162 (1985). Based on the circumstances and equities of

this case, we cannot say the trial court abused its discretion

in making this award.

Accordingly, we affirm.

Affirmed.

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