Hayden Wayne Sizemore v. Kathryn Mae Kirk Sizemore ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bumgardner and
Senior Judge Hodges
HAYDEN WAYNE SIZEMORE
MEMORANDUM OPINION *
v. Record No. 1136-01-3 PER CURIAM
DECEMBER 11, 2001
KATHRYN MAE KIRK SIZEMORE
FROM THE CIRCUIT COURT OF SCOTT COUNTY
Ford C. Quillen, Judge
(Robert Austin Vinyard, on brief), for
appellant.
(Jeffery A. Sturgill; Sturgill & Kennedy, on
brief), for appellee.
Hayden Wayne Sizemore (husband) appeals the decision of the
circuit court ordering him to pay Kathryn Mae Kirk Sizemore (wife)
spousal support based upon imputed income. On appeal, husband
contends the trial court abused its discretion by imputing to him
income from his former business and ordering him to pay wife
ongoing spousal support. Upon reviewing the record and briefs of
the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
See Rule 5A:27.
On appeal, we view the evidence and all reasonable
inferences in the light most favorable to appellee as the party
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990).
Procedural Background
The parties were married on June 23, 1973. After living
separate and apart for over one year, wife was awarded a no-fault
divorce on December 8, 1998. In the final decree of divorce,
husband was ordered to pay wife support in the amount of $4,000
per month. On February 28, 2000 the circuit court reduced
husband's spousal support obligation to $750 per week, effective
December 6, 1999. Thereafter, husband moved the court to
reconsider its findings. After extensive hearings concerning the
financial condition of the parties and businesses involved, the
court imputed to husband income of $20,000 per year on account of
income earned by his present wife in her capacity as owner of
husband's former business. The court reduced husband's support
obligation to $1,000 per month effective July 1, 2001 and assessed
a total arrearage of support owed by husband to wife of $35,950.
Analysis
"The decision to impute income is within the sound
discretion of the trial court and its [decision] will not be
reversed unless plainly wrong or unsupported by the evidence."
Blackburn v. Michael, 30 Va. App. 95, 102, 515 S.E.2d 780, 784
(1999) (citation omitted).
Over a short period of time following his divorce from
wife, husband's income had gone from approximately $500,000 per
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year to less than $20,000. Husband owned ambulance businesses
during the parties' marriage. After a period of time, husband
allegedly lost his control or ownership of these businesses and
later filed bankruptcy on behalf of himself and one of the
corporations, Good Neighbor Ambulance Services, Inc. Prior to
declaring bankruptcy, husband remarried and purchased an
expensive home with his new wife. After husband's spousal
support obligation went into arrears, husband conveyed his one
half interest in the new house to his present wife.
During the decline of husband's ambulance service business,
he began a business in the collection of accounts for other
ambulance services. Husband originally entirely owned the
business, later made his new wife a fifty-fifty partner, and now
claims no interest in the business whatsoever. Husband states
his new wife owns and operates the business out of their home.
However, husband's new wife also earns approximately $40,000
annually from full-time employment outside the home. Based upon
husband's prior direct involvement in the business, the court
imputed to him the amount of $20,000 annual income. The court
found husband's assertion that he was not presently involved in
the business and was not voluntarily underemployed incredible.
"The credibility of the witnesses and the weight accorded the
evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is presented."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,
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732 (1995). We find that in weighing the relative needs,
earning capacities and abilities of the parties, their ages, the
duration of the marriage, and the manner in which the parties
were accustomed to living during the marriage, the court did not
abuse its discretion in imputing income to husband or in
determining the spousal support award. Accordingly, we summarily
affirm the decision of the trial court. See Rule 5A:27.
Affirmed.
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