William Bernard SimmonsvJoanne(Lindsey)Hairston,et ( 2001 )

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
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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
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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
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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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