Michael R. McElroy v. Sandra W. Cooke, etc. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
MICHAEL R. McELROY
MEMORANDUM OPINION *
v. Record No. 0481-96-4 PER CURIAM
OCTOBER 1, 1996
SANDRA W. COOKE, F/K/A
SANDRA McELROY
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Marcus D. Williams, Judge
(Harvey H. Perritt, Jr., on brief), for
appellant.
No brief for appellee.
Michael R. McElroy appeals the decision of the circuit court
awarding an increase in child support payable to Sandra W. Cooke.
McElroy raises the following issues on appeal: (1) whether the
trial court erred when it failed to impute income to Cooke
following a voluntary reduction in her work hours; (2) whether
the trial court erred when it failed to impute income to Cooke
for rental income; (3) whether the trial court erred when it
failed to consider the tax consequences to Cooke of a negative
cash flow attributable to the rental property; and (4) whether
the trial court erred in finding Cooke no longer owned the rental
property. Upon reviewing the record and McElroy's opening brief,
we conclude that this appeal is without merit. Accordingly, we
summarily affirm the decision of the trial court. Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Cooke sought an increase in child support following a
reduction in insurance coverage for the costs of psychological
counseling for the parties' two children. The trial court found
that a material change in circumstances had occurred which
warranted an increase in support.
Voluntary Reduction of Hours
McElroy contends that the trial court erred by failing to
impute income to Cooke following her reduction in work hours.
Under Code § 20-108.1(B), there is a rebuttable presumption that
the amount of child support computed under Code § 20-108.2
guidelines is correct. However, after computing the presumptive
amount, a court may determine that "application of such
guidelines would be unjust or inappropriate in a particular
case." Code § 20-108.1(B). Such a deviation
shall be determined by relevant evidence
pertaining to the following factors affecting
the obligation, the ability of each party to
provide child support, and the best interests
of the child:
* * * * * * *
3. Imputed income to a party who is
voluntarily unemployed or voluntarily
under-employed . . . .
Id. "In setting an award of child support, the 'primary issue
before a trial judge is the welfare and best interest of the
child, not the convenience or personal preference of a parent.'"
Brody v. Brody, 16 Va. App. 647, 651, 432 S.E.2d 20, 22 (1993)
(citation omitted). "The guidelines include voluntary
2
underemployment as only one of several factors to be considered
in adjusting the presumptive child support amount." Barnhill v.
Brooks, 15 Va. App. 696, 701, 427 S.E.2d 209, 212 (1993).
Cooke reduced her work hours "basically based on my children
and on the advise of [their therapist]." Both sons have serious
emotional and learning disabilities which require therapy at
least every week. The therapist testified that "99% of the
effort involved with the children [was] carried out by Mrs.
Cooke." Cooke testified that she also cared for her elderly
parents who had suffered strokes, but McElroy failed to point to
any evidence that this care was the reason Cooke reduced her work
hours.
The trial court found a change in circumstances due to the
limited number of therapy sessions covered by Cooke's insurance.
The testimony relating to Cooke's reduction in hours indicated
that it was based upon her children's needs. Those needs were
established by credible evidence, including the testimony of the
children's therapist. Based upon the record before us, we cannot
say that the trial court abused its discretion by refusing to
impute income to Cooke based upon her reduced work hours.
Rental Property
McElroy argues that the trial court erred when it refused to
impute income to Cooke arising from rental property formerly
owned by her and her new husband. We disagree.
Cooke testified that she and her new husband no longer
3
owned the rental property and that its rental income had never
exceeded its expenses. While McElroy contends that Cooke did not
prove they no longer owned the property, Cooke's testimony
concerning the negative income was uncontested.
The trial court found that "the sale itself appears to be
one that is not adequately explained by [Cooke or McElroy], but I
don't doubt the credibility that she's not receiving income from
that property." The trial court heard the testimony of the
parties and determined their credibility. "The weight which
should be given to evidence and whether the testimony of a
witness is credible are questions which the fact finder must
decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351
S.E.2d 598, 601 (1986). We will not reverse the trial court's
credibility determination. Therefore, as the trial court found
credible Cooke's testimony that there was no rental income, it
did not abuse its discretion in refusing to impute additional
income to Cooke on this basis.
Moreover, as the court found there was insufficient evidence
concerning Cooke's ownership of the property, the court did not
err in refusing to determine ownership or any related tax
consequences.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
4