William Alberger v. Joyce Lee Alberger

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
WILLIAM ALBERGER
MEMORANDUM OPINION *
v. Record No. 2527-98-4 PER CURIAM
JUNE 15, 1999
JOYCE LEE ALBERGER
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
(Gwena Kay Tibbits; Law Offices of Gwena Kay
Tibbits, on briefs), for appellant.
(Michael A. Ward; Gannon, Cottrell & Ward,
P.C., on brief), for appellee.
William Alberger (husband) appeals the final decree of
divorce entered by the circuit court. Husband contends that the
trial court erred by (1) determining the amount of child support
by imputing income to him, failing to impute income to Joyce Lee
Alberger (wife), and requiring him to pay private school
tuition; (2) misapplying the factors set out in Code
§ 20-107.3(E) when granting wife a monetary award; (3) requiring
husband to pay debts associated with the marital residence until
the sale of the residence; (4) requiring husband to pay any
unsecured joint debts not satisfied by the proceeds of the sale
of the marital residence; (5) not awarding husband the marital
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
residence; and (6) not crediting husband with payments made on
the marital residence during the parties' separation. 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 the prevailing party
below . . . . 'The burden is on the party who alleges
reversible error to show by the record that reversal is the
remedy to which he is entitled.'" Lutes v. Alexander, 14 Va.
App. 1075, 1077, 421 S.E.2d 857, 859 (1992) (citation omitted).
Child Support
"The starting point for determination of each parent's
child support obligation is the amount calculated using the
schedule found in Code § 20-108.2(B); however, that amount is
subject to adjustment based on the factors found in Code
§ 20-108.1." Brody v. Brody, 16 Va. App. 647, 650, 432 S.E.2d
20, 21 (1993). Among the relevant factors which the trial court
may consider when deviating from the guideline amount are income
imputed to a party who is voluntarily unemployed or voluntarily
underemployed, and the parties' respective earning capacity,
obligations and needs, and financial resources. See Code
§ 20-108.1(B)(3) and (7). When the imputed income and the
resulting child support are "supported by the evidence and the
trial judge has not otherwise abused his or her discretion, the
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deviation . . . will be upheld on appeal." Richardson v.
Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991).
The evidence established that husband earned in excess of
$130,000 each year between 1993 and 1997. Although husband was
employed in a law firm at the time of the hearing, he was
leaving his employment at the end of August 1998. He admitted
that he was leaving voluntarily, that he had made few attempts
to seek employment with another firm, and that he planned to
open his own office. He testified that he would be bringing his
clients with him and that in each of his employment changes in
the past, "[w]hen I've left, the clients have – have come with
me, and – and they will do so." He also testified that one
client would pay $7,500 for four months, and another between
$5,000 and $7,000 a month.
Husband argued that he was not attempting to avoid his
obligation to support his child. Nonetheless, he was not free
to "make career decisions that disregard the needs of his
dependents and his potential obligation to them, and 'the risk
of his success at his new job [is] upon [him], and not upon [his
child].'" Auman v. Auman, 21 Va. App. 275, 279, 464 S.E.2d 154,
156 (1995) (citation omitted). Here, the evidence indicated
that husband's income had been above, and in some years well
above, $130,000 for each of the last five years. While the
trial court recognized that husband’s circumstances were
fluctuating, we cannot say it erred by imputing to husband a
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level of income well within husband’s most recent earning
history. "Where a parent is 'voluntarily unemployed or
voluntarily underemployed' a trial court may impute income based
on evidence of recent past earnings." Brody, 16 Va. App. at
651, 432 S.E.2d at 22.
Similarly, while the evidence indicated that wife's income
would increase if her position became permanent, we find no
error in the trial court's decision to use wife’s actual
earnings at the time of the hearing, rather than to impute to
her a potential increase in earnings.
Finally, the parties agreed that their son should continue
to attend private school. The trial court found that husband
was in the better position to pay for this expense. We find no
abuse of discretion in the trial court’s decision to require
husband to bear the cost of the private school tuition.
Equitable Distribution
Husband's remaining issues challenge the trial court's
equitable distribution decision. "Fashioning an equitable
distribution award lies within the sound discretion of the trial
judge and that award will not be set aside unless it is plainly
wrong or without evidence to support it." Srinivasan v.
Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990).
"Unless it appears from the record that the trial judge has not
considered or has misapplied one of the statutory mandates, this
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Court will not reverse on appeal." Ellington v. Ellington, 8
Va. App. 48, 56, 378 S.E.2d 626, 630 (1989).
Husband contends that the trial court erred in its
application of the Code § 20-107.3(E) factors when making its
monetary award of $15,000 to wife. We disagree. The trial
court's opinion letter set out in detail the factors and
evidence considered by the court. The court noted, among other
factors, that husband made the greater monetary contributions to
the family, that he paid mortgage and other expenses during the
separation, and that he paid the college expenses for wife and
her daughter. Based upon the evidence submitted to and relied
upon by the trial court, husband was awarded his IRA, life
insurance, and bank accounts with a value of $67,379, while wife
received her accounts totaling $153. Husband owed over $70,000
in his separate unsecured debt, while wife owed over $36,000.
The trial judge thoroughly examined the evidence and considered
the required factors before determining the award. In reviewing
the award, "'we rely heavily on the trial judge's discretion in
weighing the particular circumstances of each case. Only under
exceptional circumstances will we interfere with the exercise of
the trial judge's discretion.'" Gamble v. Gamble, 14 Va. App.
558, 573, 421 S.E.2d 635, 644 (1992) (quoting Aster v. Gross, 7
Va. App. 1, 8, 371 S.E.2d 833, 837 (1988)). We cannot say that
the decision to grant wife a monetary award of $15,000 was an
abuse of discretion.
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Husband also contends the trial court erred by requiring
him to pay the unsecured joint debts left unsatisfied after the
sale of the marital residence. We find no error. At the time
of the hearing, the parties' unsecured joint debt totaled over
$33,000, while their equity in the marital residence was
$40,000. The amount of unsecured joint debt for which husband
would be solely responsible was unascertainable at the time of
the trial. However, despite the fact that husband's employment
was less certain than that of wife, he continued to have the
ability to earn substantially more than she. Husband has failed
to demonstrate that the trial court abused its discretion by
assigning remaining unsecured joint debts to him.
Husband contends that the trial court failed to give him
credit for his post-separation payments towards the mortgage on
the marital residence. The record demonstrates that the trial
court expressly considered those payments. The court was not
required under Code § 20-107.3 to assign a dollar-for-dollar
credit to husband for his payments. See von Raab v. von Raab,
26 Va. App. 239, 249-50, 494 S.E.2d 156, 161 (1997).
Husband also contends that the trial court erred by
requiring him to pay all debts associated with the marital
residence until sold. While the trial court acknowledge that
"[wife’s] prospects appear more certain that [husband's]," the
evidence established that husband continued to have the greater
relative earning capability. We find no error in the trial
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court's decision to require husband to continue to pay the
expenses for the marital residence until its sale.
Finally, husband contends that the trial court erred by
requiring the sale of the marital residence. As noted above,
the marital residence was a means by which the parties could use
a joint asset to pay unsecured joint debt. By directing that
the sale proceeds be applied to existing joint debts, the trial
court exercised its statutory authority to apportion marital
debts. See Code § 20-107.3(C). Both the evidence and the law
support the trial court's decision.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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