Zubair A. Saleem v. Afshan Ghias Saleem, a/k/a et a ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, * Judges Baker and Annunziata
Argued at Alexandria, Virginia
ZUBAIR AHMAD SALEEM
v. Record No. 0443-97-4
AFSHAN GHIAS SALEEM, A/K/A
AFSHAN NOREEN QURESHI
OPINION BY
CHIEF JUDGE JOHANNA L. FITZPATRICK
JANUARY 20, 1998
AFSHAN GHIAS SALEEM, A/K/A
AFSHAN NOREEN QURESHI
v. Record No. 0444-97-4
ZUBAIR AHMAD SALEEM
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael P. McWeeny, Judge
Lawrence D. Gaughan (Gaughan & Schargorodski,
on briefs), for Zubair Ahmad Saleem.
Bruce Richard Eells (John P. Snider;
Matthews & Snider, on briefs), for Afshan
Ghias Saleem, a/k/a Afshan Noreen Qureshi.
These are appeals from a modification of child support
decree entered by the Circuit Court of Fairfax County (trial
court). Zubair Saleem (husband) contends the trial court erred
in: (1) applying the support law of New York to determine his
child support obligation for his daughter, Nadia; and (2) failing
to impute income to Afshan Saleem (wife).
Wife filed a cross-appeal contending the trial court erred
*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
in: (1) determining that the law of Virginia would control the
duration of husband's support obligation; and (2) making findings
of fact that are not supported in the trial record.
I. Background
Husband and wife were married in Pakistan on December 30,
1974. Three children were born of the marriage: Nadia, born
March 6, 1980; Seth, born July 10, 1982; and Gibran, born May 28,
1984. The parties separated, entered into a property settlement
agreement (PSA) on November 13, 1986, and were divorced by final
decree on May 17, 1988.
The PSA provided for joint legal custody of the children,
with their principal residence from the date of the parties'
separation to May 28, 1991 with wife. After May 28, 1991, the
principal residence of the parties' two sons would be with
husband. Husband agreed to pay child support for the three
children while they lived with wife. The payments would continue
until "the change of residence of [the boys], at which time
[wife] shall be solely responsible for [the daughter's] support
and [husband] shall be solely responsible for [the sons'] support
. . . ." The child support provision also included the following
language: "In any event, [husband's] and [wife's] obligation for
child support shall terminate whenever a child dies, reaches the
age of 18 years, or otherwise becomes emancipated, whichever
comes first."
On August 9, 1988, the parties executed an amendment to the
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PSA, which was incorporated into the trial court's modification
decree of March 25, 1989. The amendment changed the principal
residence of all three children to husband and terminated his
child support obligation as of August 15, 1988. Paragraph two of
the amendment and modification decree contained the following
provision regarding the parties' child support obligations:
In the event that the principal residence of
one or two of the children should revert to
[wife], any provision of said child support
shall be subject to further agreement by the
parties, and if no agreement is reached, such
support shall be determined on the basis of
the laws of the jurisdiction(s) in which the
children are residing at that time.
(Emphasis added).
By order dated February 23, 1996, custody of the parties'
daughter was awarded to wife. The parties could not reach an
agreement regarding the terms of husband's child support
obligation for Nadia, and wife filed a motion for support,
alleging a change of circumstances.
Prior to trial, the parties filed a preliminary motion
requesting that the trial court determine which state's law would
apply to the computation of Nadia's support. In its July 29,
1996 opinion letter, the trial court referred to paragraph two of
the Amendment and found as follows:
It is clear . . . that the parties
contemplated the possibility of the children
being "split" between two jurisdictions and
on the plain meaning of the language intended
the law of each jurisdiction to apply to the
child or children in that jurisdiction.
Thus, New York law will apply to Nadia and
Virginia law will apply to the boys.
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A hearing regarding child support and visitation was held on
August 19, 1996. Testimony was presented regarding the
daughter's expenses, wife's employment history, and her recent
efforts to find work. Wife last worked in 1990, made
approximately $26,000 per year and was asked to resign from this
position as well as from an earlier job. At the conclusion of
the hearing, the court indicated that it did not think it had
jurisdiction to order child support for the daughter beyond "the
Virginia 18 or 19 rule."
On December 13, 1996, the trial court entered a final order
regarding child support for the parties' daughter and determined
"pursuant to its letter opinion of July 29, 1996 . . . made part
of the record herein, that New York law shall apply to how child
support is calculated for [the daughter], and that the Virginia
procedure for split custody shall be applied." The order further
provides:
Virginia law shall apply to the duration of
the child support award for all three
children . . . and . . . this Court is bound
by the limitations of [Code § 20-124.2(C)] as
to the period for which child support is
payable. . . . [T]here was no stipulation
either in the [Property Settlement] Agreement
or the Amendment which extends the child
support obligation ". . . beyond when it
would otherwise be terminated as provided by
law." There is therefore no authority to
vary the provisions of [Code § 20-124.2(C)].
Additionally, the trial court found "no basis to impute
income to [wife]. . . . [I]t is not a question of how much. It
is a question of whether or not it falls under the Brody rule."
4
See Brody v. Brody, 16 Va. App. 647, 432 S.E.2d 20 (1993). Both
parties appeal this ruling. 1
II. Application of New York Child Support Procedure
Husband initially contends the trial court erred in using
the New York child support formula to establish his support
obligation for Nadia without first establishing the presumptive
amount of support as required by Code § 20-108.1. We agree.
"The starting point . . . for determining the child support
obligation of a party, whether initially or at a modification
hearing, is to compute the presumptive amount using the schedule
found in Code § 20-108.2(B)." Watkinson v. Henley, 13 Va. App.
151, 158, 409 S.E.2d 470, 473 (1991). In any such proceeding, a
trial court must first determine the presumptive amount of child
support before considering any other factors. See Richardson v.
Richardson, 12 Va. App. 18, 401 S.E.2d 894 (1991). One factor
1
Wife contends that Rule 5A:18 bars our consideration of
husband's appeal concerning the application of the New York
support law. This contention is without merit. Husband argued
this issue throughout the proceedings, and he specifically noted
the following on the December 13, 1996 decree:
Objection to calculating child support amount
for Nadia A. Saleem pursuant to New York law;
objection to not imputing income to
Complainant; objection to court's finding
Defendant's gross monthly income at $7,068.00
and not allowing any deduction of gross
amount due to FICA withholdings allowed
pursuant to New York law or for costs
incurred in producing income; objection to
adding $200.00 monthly in extra-ordinary
medical expenses to Complainant's expenses
for Nadia A. Saleem.
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which may be considered in determining whether to deviate from
the established amount is "[a] written agreement between the
parties which includes the amount of child support." Code
§ 20-108.1(B)(16).
[A] trial court need not award child support
in the statutorily presumptive amount if a
deviation from such an amount is justified.
However, it must determine the guideline
amount and then may compare this amount with
the provisions of the separation agreement.
If the factors . . . justify an award based
upon the provisions of the separation
agreement . . . it may then enter an award in
the amount provided.
Scott v Scott, 12 Va. App. 1245, 1249, 408 S.E.2d 579, 582
(1991). See Alexander v. Alexander, 12 Va. App. 691, 406 S.E.2d
666 (1991).
The trial court had no statutory authority to establish
child support using the law and procedure of a different forum
without following the procedure outlined in Code § 20-108.1. The
parties' contractual agreement may not confer such authority when
it is not otherwise granted by statute. A parent's ability to
unilaterally determine the child support amount and the procedure
for arriving at that obligation have been legislatively
curtailed. Our child support guidelines were enacted by the
General Assembly in furtherance of national policy intended to
"assure that both the child's needs and the parent's ability to
pay are considered in determining the amount of support awards
and to decrease the disparity in . . . awards." Richardson, 12
Va. App. at 20, 401 S.E.2d at 895. "The language of the statute
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reflects the General Assembly's decision to adopt the income
shares model for child support guidelines." Farley v. Liskey, 12
Va. App. 1, 4, 401 S.E.2d 897, 899 (1991).
We find no authority for wife's position that the parties
may override the legislative scheme by agreeing to establish a
different process for arriving at the appropriate support amount
or that any error in failing to follow the mandatory procedure
was harmless. Code § 20-108.1 provides a rebuttable presumption
that the guidelines in Code § 20-108.2 establish the correct
amount of child support. Code § 20-108.1(B)(16) authorizes a
trial court to deviate from the presumptive guideline amount upon
consideration of "[a] written agreement between the parties which
includes the amount of child support." However, this variance
provision has limited scope and can be considered only after the
procedure mandated by the statute is followed, that is, only
after a calculation of the presumptive amount is made.
Additionally, Code § 20-108.1(B)(16) refers to a written
agreement that sets forth a different amount, not a different
process. Thus, even if the parties specifically agreed to apply
New York law, the New York guidelines could only be used to
suggest an alternate amount of child support. Once the trial
court determined the presumptive amount under the Virginia
guidelines it could consider whether the New York amount was
authorized by the parties' agreement as a deviation from the
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guidelines under Code § 20-108.1(B)(16). 2 The trial court erred
in finding that the parties' agreement controlled whether "New
York law shall apply to how child support is calculated for
[Nadia]."
III. Duration of Support
In her cross-appeal, wife argues that once the trial court
used New York law to determine the amount of support for Nadia,
it was also bound to apply New York law to the duration issue.
Her argument is without merit, because the trial court erred in
substituting New York law for the Virginia guidelines. The
parties' agreement to apply New York law merely supplied an
alternate amount of child support and was relevant only as a
factor under Code § 20-108.1(B)(16). Since the trial court's
reliance on the child support law of New York was misplaced,
wife's argument to extend that reliance fails.
Wife also argues that the plain meaning of the amendment
provision that "if no agreement is reached, such support shall be
determined on the basis of the laws of the jurisdiction(s) in
which the children are residing" demonstrates the parties' intent
that all aspects of the relevant jurisdiction's support statutes
2
Husband's contention that the agreement is so ambiguous
that it should not be a reason to deviate from the presumptive
amount is without merit. The language demonstrates the parties'
intention that the law of the jurisdiction in which the children
resided at the time would be considered. This agreement is a
factor to which the trial court may refer as a reason to deviate
if it concludes that "application of [the guidelines] would be
unjust or inappropriate." Cooke v. Cooke, 23 Va. App. 60, 63,
474 S.E.2d 159, 160 (1996) (citation omitted).
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apply, including duration. While "the court may confirm a
stipulation or agreement of the parties which extends a support
obligation beyond when it would otherwise terminate as provided
by law," Code § 20-124.2(C), we find no evidence to indicate that
husband and wife intended that support for two of the children
would terminate at nineteen while support for the other would
last until twenty-one. The relevant provision in the Amendment
has no such plain meaning, and the original PSA included the
explicit provision that "[i]n any event, [the parties']
obligation for child support shall terminate whenever a child
dies, reaches the age of 18 years, or otherwise becomes
emancipated, whichever comes first." The trial court did not err
in applying Virginia law and finding that child support would
continue until the age of nineteen or high school graduation,
whichever first occurs. 3
IV. Imputed Income
Additionally, husband contends the trial court erred in
failing to impute income to wife. "A trial court has discretion
to impute income to [a party] who is voluntarily unemployed."
Bennett v. Commonwealth, 22 Va. App. 684, 691, 472 S.E.2d 668,
672 (1996). See Code § 20-108.1(B)(3). The trial court's
decision not to impute income "will be upheld on appeal unless it
is plainly wrong or unsupported by the evidence." Bennett, 22
3
Because we reverse and remand on the issue of the proper
amount of child support, wife's additional argument regarding the
trial court's record is moot.
9
Va. App. at 691-92, 472 S.E.2d at 672 (citation omitted). In the
instant case, wife gave uncontradicted testimony that she was
asked to resign from her prior employment and that she has made a
limited effort to obtain work in New York. The trial court's
decision not to impute income is supported by evidence and was
not an abuse of discretion. Nonetheless, the question of
imputation must be addressed anew on remand. Imputation of
income is a factor to be considered in deciding whether to
deviate from the presumptive amount of child support, and "[a]ny
child support award must be based on circumstances existing at
the time the award is made." Sargent v. Sargent, 20 Va. App.
694, 703, 460 S.E.2d 596, 600 (1995).
We hold that it was error to award child support based on
New York law without first determining whether the presumptive
amount of support calculated pursuant to the Virginia child
support guidelines was inappropriate. Additionally, in the
absence of an explicit agreement extending child support, it was
not error to limit the duration of support under Code
§ 20-124.2(C). Finally, the trial court did not err in refusing
to impute income to wife. For the foregoing reasons, we affirm
in part, reverse in part, and remand.
Affirmed in part,
reversed in part,
and remanded.
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