Marlene Niemiec v. Commonwealth, DSS, DSCE

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Elder
Argued at Alexandria, Virginia
MARLENE NIEMIEC
OPINION BY
v. Record No. 1744-97-4 JUDGE LARRY G. ELDER
JUNE 2, 1998
COMMONWEALTH OF VIRGINIA, DEPARTMENT
OF SOCIAL SERVICES, DIVISION OF
CHILD SUPPORT ENFORCEMENT, ex rel.
JOHN R. NIEMIEC
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Arthur B. Vieregg, Jr., Judge
Kevin E. Smith (Schumack & Smith, on briefs),
for appellant.
William K. Wetzonis, Special Counsel (Nancy
J. Crawford, Regional Special Counsel;
Richard Cullen, Attorney General; William H.
Hurd, Deputy Attorney General; Robert B.
Cousins, Jr., Senior Assistant Attorney
General; Craig M. Burshem, Regional Special
Counsel, on brief), for appellee.
Marlene Niemiec ("mother") appeals the trial court's order
requiring her to pay $440 per month in child support to John R.
Niemiec ("father") through the Division of Child Support
Enforcement ("division"). She contends the trial court erred
when it imputed income to her when calculating her child support
obligation. For the reasons that follow, we reverse.
I.
FACTS
The parties were married in 1984, had two daughters, and
divorced in 1995. As part of its divorce decree, the trial court
awarded custody of the parties' children to father and entered no
order regarding child support.
On February 12, 1997, the Division of Child Support
Enforcement ("division") filed a motion on behalf of father
seeking a court order requiring mother to pay child support to
father through the division. On June 20, 1997, the trial court
held a hearing on the division's motion. The record in this case
does not contain transcripts of the hearing, and the evidence
presented by the parties has been summarized in a written
statement of facts. According to this statement, father
testified that mother worked part-time as a day care provider
during the parties' marriage. He testified that she cared for
between two and five children at a time and "received significant
compensation."
Mother testified that, since December 1996, she had been
employed part-time as an administrative assistant. She earned $9
per hour, and her employer generally limited her to no more than
twenty hours work per week. Occasionally, she had been allowed
to work thirty hours per week. The parties stipulated that her
current actual income was $780 per month. Mother testified that,
while the parties were married, she stayed at home to care for
their children and "earned money as a day care provider for other
children." She testified that, following the parties' divorce in
November 1995, she actively looked and applied for "full-time
work and better jobs." As of the date of the hearing, all of her
attempts were unsuccessful. She testified that she was still a
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licensed day care provider in Virginia but that she had not
sought employment in this field, either full time or part-time.
Mother testified that she did not suffer from any physical or
mental impairments that would prevent her from working full time.
A child support worksheet included in the record indicates
that, based on the parties' current actual incomes, the
presumptively correct amount of mother's child support obligation
was $252.05. The division argued that the trial court should
depart upward from the guideline amount because mother was
voluntarily underemployed. In support of its argument, the
division calculated the presumptively correct amount of mother's
obligation based on the assumption that she worked forty hours
per week at her current hourly wage. Based on this amount of
income, mother's child support obligation under the guidelines
was $463.94 per month.
At the conclusion of the presentation of evidence, the trial
court found that the presumptively correct amount of mother's
child support obligation was $252. The trial court found that
"there has been no evidence to demonstrate that [mother] is not
able to work a full-time (40-hour) position." The trial court
found that she was voluntarily underemployed and imputed
additional income to her of $780 per month. The trial court
found that, based on monthly income of $1,560 per month, the
presumptively correct amount of mother's child support obligation
was $464 per month. The trial court then found that mother had
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previously incurred debts to support the children and awarded her
a monthly credit of $24 to pay off these debts. It then ordered
mother to pay father $440 per month in child support through the
division.
II.
IMPUTATION OF INCOME
Mother contends the trial court erred when it deviated
upward from the presumptively correct amount of her child support
obligation by imputing income to her. She argues the evidence
was insufficient to support the trial court's finding that she
was voluntarily underemployed. We agree.
In any proceeding to determine a parent's child support
obligation, "there is a rebuttable presumption that the amount
determined in accordance with the statutory guidelines, Code
§ 20-108.2, is the correct award." Brooks v. Rogers, 18 Va. App.
585, 591, 445 S.E.2d 725, 728 (1994). If the presumptive amount
is unjust or inappropriate, the trial court may deviate from it
based upon the factors found in Code § 20-108.1. See Watkinson
v. Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 473-74 (1991).
Following a divorce, a parent may not voluntarily pursue low
paying employment "to the detriment of support obligations to the
children." Brody v. Brody, 16 Va. App. 647, 651, 432 S.E.2d 20,
22 (1993); see also Auman v. Auman, 21 Va. App. 275, 279, 464
S.E.2d 154, 156 (1995). As such, except as provided in Code
§ 20-108.1(B)(3), a trial court determining child support is
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required to impute income to a parent who is found to be
voluntarily underemployed. See Hamel v. Hamel, 18 Va. App. 10,
12, 441 S.E.2d 221, 222 (1994); see also Code § 20-108.1(B)(3),
(11) (stating that "[i]mputed income to a party who is
voluntarily unemployed or voluntarily under-employed" and the
"[e]arning capacity . . . of each parent" are factors on which
the trial court may justify a deviation from the presumptively
correct amount of child support).
When asked to impute income to a parent, the trial court
must consider the parent's earning capacity, financial resources,
education and training, ability to secure such education and
training, and other factors relevant to the equities of the
parents and children. See Brooks, 18 Va. App. at 592, 445 S.E.2d
at 729 (citing Code § 20-108.1(B)). The burden is on the party
seeking the imputation to prove that the other parent was
voluntarily foregoing more gainful employment, either by
producing evidence of a higher-paying former job or by showing
that more lucrative work was currently available. See Brody, 16
Va. App. at 651, 432 S.E.2d at 22; Hur v. Virginia Dept. of
Social Services Div. of Child Support Enforcement ex rel. Klopp,
13 Va. App. 54, 61, 409 S.E.2d 454, 459 (1991); see also
Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119
(1991). The evidence must be sufficient to "enable the trial
judge reasonably to project what amount could be anticipated."
Hur, 13 Va. App. at 61, 409 S.E.2d at 459. "If a trial court
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imputes income to a party, it must make written findings
explaining why imputed income to the party would make it unjust
or inappropriate to award the presumptive amount of child
support." Brody, 16 Va. App. at 650, 432 S.E.2d at 21-22.
A trial court's decision to deviate from the presumptively
correct amount of child support based upon imputed income will
not be disturbed on appeal if it is supported by the evidence and
the trial court has not otherwise abused its discretion. See
Brooks, 18 Va. App. at 592, 445 S.E.2d at 729. The trial court's
award must be "based upon 'circumstances in existence at the time
of the award' and not upon speculation or conjecture." Id.
We hold that the evidence was insufficient to support the
trial court's conclusion that mother was voluntarily
underemployed. The summary of the evidence contained in the
written statement of facts indicates that a finding that mother
had voluntarily foregone higher-paying employment could only be
made by supplementing the evidence presented with surmise and
conjecture.
First, no evidence in the record indicates that mother
previously left higher-paying employment. Although a trial court
may impute income to a parent "based on evidence of recent past
earnings," Brody, 16 Va. App. at 651, 432 S.E.2d at 22, the
evidence of mother's past earnings did not establish that her
remuneration from her current part-time job as an administrative
assistant represented a reduction in income. The written
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statement of facts prepared by the parties states only that
mother worked part-time as a day care provider during the
parties' marriage and that she earned "significant compensation."
The statement of facts does not quantify how "significant"
mother's income was from this work. Moreover, both mother's
prior work as a day care provider and her current job as an
administrative assistant were part-time vocations, and the record
does not otherwise indicate that her income as a day care
provider was greater than her income as an administrative
assistant.
In addition, the evidence regarding the employment
opportunities currently available to mother does not support the
trial court's finding that she could earn twice her current
income by working forty hours per week. The record established
that mother could not double her income by working forty hours
per week for her current employer. Although mother earned $9 per
hour from her current job, the record established that her
employer never permitted her to work more than twenty-to-thirty
hours per week. In addition, the evidence in the record
regarding mother's search for better-paying employment does not
indicate that she failed to market herself adequately. Mother's
uncontradicted testimony established that she had "actively
look[ed] and appl[ied] for full-time work and better jobs" since
the parties' divorce and that all of her efforts had been
unsuccessful. Although mother had not sought full-time work as a
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day care provider, a position for which she was still licensed,
the record did not establish that such positions were available
or that her earnings from full-time work in this field would be
greater than her current income.
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For the foregoing reasons, we reverse the judgment of the
trial court.
Reversed.
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