Leslie Warren Nichols v. Lorinda K. Nichols (Bosch) ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Coleman and
Senior Judge Duff
Argued at Alexandria, Virginia
LESLIE WARREN NICHOLS
MEMORANDUM OPINION *
v. Record No. 1441-97-4 BY JUDGE CHARLES H. DUFF
APRIL 28, 1998
LORINDA K. NICHOLS (BOSCH)
FROM THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY
William Shore Robertson, Judge
Susan C. Minkin for appellant.
Julia S. Savage (Walker, Jones, Lawrence,
Duggan & Savage, on brief), for appellee.
Leslie Warren Nichols (father) appeals the decision of the
circuit court denying his petition to recalculate child support
payable to Lorinda K. Nichols (mother) on behalf of the parties'
two children. Father contends that the trial court erred by (1)
failing to impute income to mother; (2) failing to calculate the
guideline amount of child support or to make adequate written
findings supporting its deviation from the guidelines; and (3)
ruling that changed circumstances resulting from father's new
family could not justify a reduction in his child support
payments. We affirm the decision of the trial court.
As the party seeking to modify the current child support
payment, father bore the burden to prove by a preponderance of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the evidence both a material change in circumstances and that the
change warranted a reduction in his payments. See Antonelli v.
Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 118-19 (1991). See
also Code § 20-108. "In discharging this burden, [the party]
seeking a reduction in support payments must also make a full and
clear disclosure about his ability to pay, and he must show his
claimed lack of ability to pay is not due to his own voluntary
act or because of his neglect." Antonelli, 242 Va. at 154, 409
S.E.2d at 119.
Imputation of Income
Father contends that the trial court erred when it failed to
impute income to mother because she was underemployed. See Code
§ 20-108.1(B)(3). "Imputation of income is based on the
principle that a spouse should not be allowed to choose a low
paying position that penalizes the other spouse or any children
entitled to support." Calvert v. Calvert, 18 Va. App. 781,
784-85, 447 S.E.2d 875, 876-77 (1994). In a prior order, the
trial court encouraged mother to seek full-time employment.
However, mother presented evidence that her current part-time
employment schedule of four different jobs reduced or eliminated
certain expenses, such as child care, which she would incur
working full-time. Mother estimated she would need to earn
$35,000 annually to cover those increased expenses and still
receive the same net income. Moreover, she worked approximately
the same number of part-time hours as she worked at the time of
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the previous hearing. Cf. Brody v. Brody, 16 Va. App. 647, 432
S.E.2d 20 (1993) (imputing income to mother who quit a full-time
position). The trial court found that it would not be
cost-effective for mother to work full-time. "The judgment of
the trial court concerning the extent to which the wife's earning
capacity should affect . . . child support awards will not be set
aside unless it appears from the evidence that such judgment is
plainly wrong or without evidence to support it." Kaufman v.
Kaufman, 7 Va. App. 488, 494, 375 S.E.2d 374, 377 (1988).
Because credible evidence supports the court's finding, we find
no error.
Written Findings
Under Code § 20-108.1(B), the amount of child support
calculated pursuant to the guidelines set out in Code § 20-108.2
is presumed to be correct. See Richardson v. Richardson, 12 Va.
App. 18, 21, 401 S.E.2d 894, 896 (1991). Any deviations from the
guidelines are to be set out in written findings which explain
why the guidelines would be inappropriate or unjust. Id. at
21-22, 401 S.E.2d at 896-97.
The previously set child support deviated from the
guidelines. The trial court found that father failed to present
sufficient evidence of changed circumstances warranting a
modification of the previously set child support. Therefore, as
the trial court found insufficient evidence to warrant a change
in the child support payments, it was not required to recalculate
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the basic guideline payment or reiterate in writing its reasons
for deviating from that amount. See Hiner v. Hadeed, 15 Va. App.
575, 577, 425 S.E.2d 811, 812 (1993).
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Father's Circumstances
Among the factors to be evaluated by the trial court
considering a deviation from the guideline amount of child
support is the "[a]ctual monetary support for other children,
other family members or former family members." Code
§ 20-108.1(B)(1). See Farley v. Liskey, 12 Va. App. 1, 3-4, 401
S.E.2d 897, 898-99 (1991). Father presented evidence that his
living expenses had increased since the last hearing, but
admitted that the increased expenses resulted from the need to
accommodate his new wife and her child. Father also admitted
that his new wife does not receive any child support. No
evidence showed that expenses attributable to the parties' sons
had increased. We find no error in the trial court's conclusion
that father's voluntary assumption of additional financial
obligations on behalf of his new family did not justify a
reduction in the amount of support paid for his sons.
Accordingly, the decision of the circuit court is affirmed.
Considering all of the circumstances presented, we deny mother's
motion for attorney's fees and costs expended in this appeal.
Affirmed.
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Coleman, J., dissenting.
In my opinion, the appellant proved material changes in
circumstance that were sufficient to have required the trial
court to recalculate and redetermine the parents' respective
child support obligations. Accordingly, I dissent from the
majority holding.
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