Kulvinder Kaur v. Gurbrinder Singh Dhillon ( 2021 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges O’Brien, Malveaux and Senior Judge Annunziata
KULVINDER KAUR
MEMORANDUM OPINION* BY
v. Record No. 0254-21-4 JUDGE ROSEMARIE ANNUNZIATA
NOVEMBER 16, 2021
GURBRINDER SINGH DHILLON
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
James E. Plowman, Jr., Judge
Khalid Mahmood for appellant.
No brief or argument for appellee.
Kulvinder Kaur (wife) appeals the parties’ final decree of divorce. Wife argues that the
circuit court erred by imputing income to her, not considering Gurbrinder Singh Dhillon’s
(husband) actual income, and not awarding her spousal support. She further contends that the
circuit court erred by awarding husband the annual child tax credit in alternate years. Lastly, she
asserts that the circuit court erred by not awarding her attorney’s fees. We find no error and affirm
the decision of the circuit court.
BACKGROUND
“When reviewing a trial court’s decision on appeal, we view the evidence in the light
most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”
Nielsen v. Nielsen, 73 Va. App. 370, 377 (2021) (quoting Congdon v. Congdon, 40 Va. App.
255, 258 (2003)).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
The parties married in India on August 9, 2015. Wife had been living in the United
States and returned to Virginia a few months after the wedding, but husband remained in India
for approximately two years until he was able to obtain a visa. Wife sponsored husband for his
green card. Thereafter, one child was born in 2018.
The parties separated on February 17, 2019. The Loudoun County Juvenile and
Domestic Relations District Court (the JDR court) subsequently ordered husband to pay $825 as
monthly spousal support to wife. Approximately one year after their separation, husband filed a
complaint for divorce, which was later amended. Wife filed an answer and counter complaint
for divorce.
The parties appeared before the circuit court for custody, visitation, and support issues.
The circuit court awarded joint legal custody of the child to the parties and primary physical
custody to wife. The circuit court continued the JDR court’s spousal support award to wife and
ruled that it would consider spousal support at the parties’ final hearing for divorce and equitable
distribution.
Several months later, the parties appeared before the circuit court for a two-day hearing
on the issues of the grounds for divorce, equitable distribution, spousal support, and attorney’s
fees. The circuit court heard evidence about husband’s and wife’s income and employment
history. Husband testified that he started working one month after he arrived in the United
States; at the time of the circuit court hearing, he was employed full time as a security guard,
earning approximately $2,990 per month. Husband explained that he no longer was eligible for
overtime because of company changes. A supervisor corroborated husband’s testimony that the
company had cut overtime.
Husband further explained that in addition to his security guard job, he previously had
worked for DoorDash. Husband testified that he had stopped working for DoorDash in late 2020
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because the work decreased with the COVID-19 pandemic and his expenses outweighed his
income. He also wanted to spend more time with his child.
The circuit court received into evidence copies of husband’s 2018 and 2019 income tax
returns, as well as his 2020 bank statements and paystubs, showing his income and business
expenses. The circuit court also received copies of wife’s 2018 and 2019 income tax returns, as
well as her income and expense statement.
Before the parties’ child was born, wife worked full time at Gate Gourmet, a food service
business to airlines, and part time at Wendy’s restaurant, earning a total of approximately $2,600
per month. Wife permanently left Gate Gourmet in October 2018 and left Wendy’s for a
two-month maternity leave in November 2018. Wife returned to work at Wendy’s in January
2019, after the child’s birth, but stopped working altogether seven weeks later.
Husband maintained that he could care for the child anytime he was not working. Wife
did not think that she could find a job to match her schedule, and she did not “trust” husband to
take care of the child. Wife admitted that since she stopped working, she had not tried obtaining
any education or training to advance her earning capacity, other than taking “some” English as a
second language classes at church. She also confirmed that she had not looked for any jobs since
she stopped working at Wendy’s restaurant.1
At the conclusion of all the evidence, husband argued that the parties had been married
for approximately forty-two months, and he lived in India for twenty-seven of those months.
Husband asserted that neither party had supported the other while they lived apart, and while
they lived together in Virginia, they both contributed toward the living expenses. Husband
emphasized that he had paid wife spousal support for twenty-two months. Husband requested
1
At the time of the circuit court hearing, husband believed that wife was working with
her uncle, who was a real estate agent, but she denied working for him.
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that the circuit court terminate his spousal support obligation because wife was capable of
working. Husband also asked to be awarded the child tax deduction since wife was not working
and that the circuit court deny wife’s request for attorney’s fees.
Wife requested spousal support for three years until the child entered school. She asked
the circuit court to include in husband’s income the amounts he previously earned from overtime
and DoorDash. Relying on Code § 20-108.1(B)(3), wife argued that the circuit court could not
impute income to her because their child was not in school.2 Wife further emphasized that
husband had failed to present any evidence of jobs that were available to her. Wife requested the
child tax deduction since she was the primary custodian and argued that husband should pay her
attorney’s fees and costs.
After hearing the evidence and arguments, the circuit court granted husband a divorce
based on the parties living separate and apart for more than one year. The circuit court further
ordered each party to keep the property each had in their possession. Considering that husband
took the child tax deduction in 2019, the circuit court ordered that the child tax deduction could
be taken by wife in 2020 and subsequent even years, and by husband in odd years.
The circuit court next considered wife’s request for spousal support. The circuit court
found that the parties’ marriage was “only three and a half years” and that they were “living
together for less than two years.” The circuit court described the marriage as “a very, very short
marriage” and found that “both parties were fairly self-sufficient.”
The circuit court found wife’s request for three more years of spousal support to be
“completely unreasonable” because such an order would require husband to pay spousal support
“for longer than the duration of the marriage.” The circuit court held that husband’s
2
Husband argued that the presumptive child support guidelines made an allowance for
childcare costs, but spousal support had its own factors.
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responsibility for wife’s support was not of “an indefinite duration.” The circuit court found that
wife was voluntarily underemployed and had made “no effort” over the preceding two years “to
seek any kind of employment at all when it’s been available to her in the past.” The circuit court
determined that the parties’ incomes had been “relatively the same” when wife was working.
The circuit court rejected wife’s request to impute the DoorDash income to husband. The
circuit court explained that husband’s employment with DoorDash was a “second job” that was
“time that he could be spending with his son and avoiding the parties’ collective expense for
childcare.” The circuit court also found reasonable that husband no longer had overtime
available to him at his security guard job, considering the COVID-19 pandemic. After
considering the length of the marriage and the parties’ ability to “sustain themselves prior to and
during the marriage and after,” the circuit court declined to order continuing spousal support and
found that husband’s spousal support payments for the prior twenty-two months were
“sufficient.” Husband’s spousal support obligation terminated effective February 28, 2021.
The circuit court further ordered that each party be responsible for their own attorney’s
fees and costs. On March 10, 2021, the circuit court entered the final decree of divorce. This
appeal followed.
ANALYSIS
Spousal Support
Wife argues that the circuit court erred by terminating spousal support. She asserts that
the circuit court erred by imputing income to her and calculating husband’s income incorrectly.
A court has “broad discretion in setting spousal support and its determination will not be
disturbed except for a clear abuse of discretion.” Wyatt v. Wyatt, 70 Va. App. 716, 719 (2019)
(quoting Giraldi v. Giraldi, 64 Va. App. 676, 681 (2015)). “In determining the appropriate amount
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of spousal support, the trial court must consider the needs of the requesting party and the other
spouse’s ability to pay.” Id. (quoting Alphin v. Alphin, 15 Va. App. 395, 401 (1992)).
Here, the circuit court considered the “very, very short” duration of the marriage, as well as
the fact that for the first couple of years, wife lived in Virginia, while husband lived in India. The
circuit court found that the parties were “fairly self-sufficient” and were “able to provide for
themselves without the continued and overlapping support of the other spouse.” The circuit court
heard evidence about the parties’ employment history and received copies of their 2018 and 2019
income tax returns. Wife testified that she took a two-month maternity leave, worked for seven
weeks, and then stopped working. She claimed that she was unable to work because no relatives
were available to watch the parties’ child. Wife admitted that she had not looked for employment
after she stopped working. The circuit court found that wife was voluntarily underemployed.
“‘Unless the trial judge misapplies the legal standard or misallocates the burden of proof,
the question of “[w]hether a person is voluntarily unemployed or underemployed is a factual
determination.”’” Nielsen, 73 Va. App. at 383 (alteration in original) (quoting Broadhead v.
Broadhead, 51 Va. App. 170, 180 (2008)). “Under appropriate circumstances, a trial court may
impute income to a spouse when calculating a support award.” Collins v. Leeds, 69 Va. App. 1,
8 (2018). “‘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 9 (quoting McKee v. McKee,
52 Va. App. 482, 493 (2008) (en banc)).
Wife argues that husband “did not introduce any evidence” concerning the availability of,
and salary for, jobs available to her at the time of the circuit court hearing. She contends that the
circuit court erred when it relied on her 2018 tax return and imputed that income to her.
“Imputed income may be calculated from evidence showing a higher-paying former job
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voluntarily quit by the parent, from evidence showing that more lucrative work is currently
available to the parent, or from evidence showing recent past earnings.” Niblett v. Niblett, 65
Va. App. 616, 628 (2015).
“The recent past earnings of a voluntarily unemployed parent often provides the most
reasonable estimate of earning capacity.” Id. at 628-29. The circuit court had heard evidence
that wife had worked at Gate Gourmet for minimum wage and at Wendy’s restaurant until the
birth of the parties’ child. It was reasonable for the circuit court to impute income to wife based
on her recent past earnings and infer that wife could find another job at a comparable salary.
Wife also argues that when the circuit court terminated her spousal support, it did not
consider that she had a young child for whom she was the primary custodian. She emphasizes
that if she worked, then she would have the additional cost of childcare. Contrary to wife’s
arguments, however, the record demonstrates that the circuit court considered childcare and
found that husband’s previous offer to care for the child while wife worked had been “rejected”
by wife.
In addition, wife contends that the circuit court erred by not including husband’s overtime
or DoorDash income into his total salary. Wife asserts that the circuit court erred by not
considering his “total income according to his year 2020 pay checks” from DoorDash and the
security guard job. She emphasized that it was husband’s burden to offer any evidence of
reasonable business expenses for his 2020 income. Wife acknowledges that husband testified
that overtime was no longer available to him at his security guard job and that he no longer
worked at DoorDash. Nevertheless, she argues that the circuit court should have calculated his
income based on his overtime and DoorDash income.
In deciding whether to impute income, the circuit court had to examine the “current
circumstances.” Collins, 69 Va. App. at 9. The circuit court accepted husband’s evidence that
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overtime was no longer available to him at his job as a security guard. The circuit court also
found that husband’s DoorDash job was a “second job and the money he makes from that second
job is time that he could be spending with his son and avoiding the parties’ collective expense for
childcare.” The circuit court declined to attribute DoorDash income to husband. The record
supports the circuit court’s findings.
In terminating the spousal support award, the circuit court considered the length of the
parties’ marriage and that it was not husband’s responsibility to support wife for an “indefinite
duration.” “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.’” deCamp v. deCamp, 64 Va. App.
137, 151 (2014) (quoting Srinivasan v. Srinivasan, 10 Va. App. 728, 734 (1990)). The circuit
court found that wife had made no efforts to find employment for two years even though “it’s
been available to her in the past.” The circuit court further found that husband’s payment of
spousal support “for the last 22 months [was] sufficient . . . .”
Based on the evidence presented, the circuit court did not abuse its discretion by finding
that wife was voluntarily underemployed, declining to impute income to husband, and
terminating the spousal support award.
Child tax credit
Wife argues that the circuit court erred by ordering that the parties alternate claiming the
child as a dependent for tax purposes. On November 6, 2020, the circuit court entered a custody
and child support order. The entry of the custody and support order did not resolve all
outstanding issues because several months later, the parties appeared before the circuit court on
the issues of the grounds for divorce, equitable distribution, spousal support, and attorney’s fees.
During that hearing, husband and wife each requested being allowed to claim the child for tax
purposes. The circuit court ordered that the parties would alternate the child tax credit.
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On appeal, wife asserts that the circuit court erred in alternating the child tax credit
because as the child’s primary physical custodian, she should have the child tax credit. Wife
argues that the circuit court “should have considered both parties[’] income and financial
resources . . . ,” but she does not challenge the court’s authority to award the exemption to a
non-custodial parent on appeal.
The circuit court had the discretion to order the parties to “execute all appropriate tax
forms or waivers to grant to the other party the right to take the income tax dependency
exemption and any credits resulting from such exemption for any tax year or future years, for
any child . . . of the parties for federal and state income tax purposes.” Code § 20-108.1(E).
Considering the totality of the record, including the parties’ relatively comparable earning
capacity, the circuit court did not abuse its discretion in alternating the child tax credit.
Attorney’s fees
Wife argues that the circuit court erred by not awarding her attorney’s fees, especially
considering her limited financial resources. Wife presented evidence that she had paid $7,500 to
her attorney as part of a flat fee agreement.
“[A]n award of attorney’s fees is a matter submitted to the trial court’s sound discretion
and is reviewable on appeal only for an abuse of discretion.” Allen v. Allen, 66 Va. App. 586,
601 (2016) (alteration in original) (quoting Richardson v. Richardson, 30 Va. App. 341, 351
(1999)); see also Conley v. Bonasera, 72 Va. App. 337, 350 (2020). “[T]he key to a proper
award of counsel fees [is] reasonableness under all of the circumstances revealed by the record.”
Conley, 72 Va. App. at 350 (alteration in original) (quoting McGinnis v. McGinnis, 1 Va. App.
272, 277 (1985)).
Here, the circuit court found that it did not have “enough information” to determine
whether either party “caused a lengthy or protracted or unreasonable” delay in the litigation.
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Accordingly, it held that each party would be responsible for their own attorney’s fees. Thus, the
record establishes that the circuit court considered the circumstances and did not abuse its
discretion in denying her request for attorney’s fees.
CONCLUSION
For the foregoing reasons, the circuit court’s ruling is affirmed.
Affirmed.
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