Bernard H. Leiffer v. Emily Leiffer

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
BERNARD H. LEIFFER
MEMORANDUM OPINION * BY
v. Record No. 1035-96-2 JUDGE ROSEMARIE ANNUNZIATA
MARCH 18, 1997
EMILY LEIFFER
FROM THE CIRCUIT COURT OF HENRICO COUNTY
James E. Kulp, Judge
Judson W. Collier, Jr. (Hooker, Bode,
Collier, Dickinson & Gardner, on brief), for
appellant.
Phoebe P. Hall (Franklin P. Hall; Hall &
Hall, on brief), for appellee.
Husband, Bernard H. Leiffer, appeals the final order of the
trial court establishing permanent spousal support payable to
wife, Emily Leiffer. Husband contends that the court erred by
(1) imputing income to him; and (2) ordering permanent support
payable September 20, 1995 rather than May 1, 1995. We affirm.
I.
In April 1994, wife filed a bill of complaint, seeking a
divorce from husband. In June 1994, the court ordered husband to
pay temporary support in the amount of $4,893.38 per month. In
May 1995, husband petitioned the court to reduce his temporary
support obligation. Husband's petition was taken under
advisement pending husband's compliance with the court's
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
discovery orders.
At a subsequent hearing on the grounds of divorce and
equitable distribution, held September 20, 1995, husband remained
in default of the court's orders. At that time, the court
awarded wife a divorce and proceeded with equitable distribution.
It took the issue of permanent spousal support under advisement,
however, stating, "[t]he problem is, the Court is not confident
of what [husband's] job is, what his present income is to try to
make any decision on the issue of permanent spousal support."
A hearing was finally held on the issue of permanent spousal
support in February 1996. Following the hearing, the court
imputed income to husband and ordered him to pay $1,000 per month
in permanent spousal support, commencing on March 1, 1996. In
its order, the court made the following finding:
Upon the evidence heard, the Court finds that
[husband] voluntarily left his employment at
Sears and thereby knowingly and voluntarily
decreased his earnings and that income should
be imputed to him. The Court finds that
[husband] has an earning capacity of $8,025
per month, or $96,300 per year, and will
impute to [him that amount] for spousal
support purposes. The Court finds that
[wife] earns approximately $36,500 per year.
The court further found husband in arrears for temporary
support payments from March 1, 1995 to February 29, 1996. The
court ordered husband to pay the full amount of temporary
support, $4,893 per month, through September 20, 1995, and
modified temporary support to $1,000 per month effective that
date.
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II.
On appeal, we view the evidence and all reasonable
inferences therefrom in the light most favorable to wife, the
prevailing party below. Alphin v. Alphin, 15 Va. App. 395, 399,
424 S.E.2d 572, 574 (1992). We presume that the trial court
based its decision on the evidence presented and properly applied
the law, Williams v. Williams, 14 Va. App. 217, 221, 415 S.E.2d
252, 254 (1992), and we will not disturb the trial court's
judgment unless it is plainly wrong or without evidence to
support it. Jennings v. Jennings, 12 Va. App. 1187, 1189, 409
S.E.2d 8, 10 (1991).
In determining an award of spousal support, a "court may
impute income to a party who is voluntarily unemployed or
underemployed." Calvert v. Calvert, 18 Va. App. 781, 784, 447
S.E.2d 875, 876 (1994); Code § 20-107.1(1).
A reduction in income resulting from a
voluntary employment decision does not
require a corresponding reduction in the
payor spouse's support obligations, even if
the decision was reasonable and made in good
faith. . . . The trial court, in determining
whether to award support and the amount
thereof, may consider earning capacity as
well as actual earnings in fashioning the
award so long as it applies "the
circumstances in existence at the time of the
award."
Stubblebine v. Stubblebine, 22 Va. App. 703, 708, 473 S.E.2d 72,
74 (1996) (en banc) (quoting Payne v. Payne, 5 Va. App. 359, 363,
363 S.E.2d 428, 430 (1987)); see also Antonelli v. Antonelli, 242
Va. 152, 156, 409 S.E.2d 117, 119-20 (1991) (risk of success in
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pursuing employment change borne by obligor).
The position husband held at Sears, which paid him $8,025
per month, was "eliminated" due to corporate "downsizing." Sears
offered husband another position where he would continue to earn
$8,025 for an undetermined period. Husband stated that he was
overqualified for the new position, which would have required him
to relocate to Minnesota and work primarily in North and South
Dakota. Instead, husband opted for a severance package from
Sears and left in March 1994.
Within two months husband moved to Nashville. He rejected
an offer of employment from a firm in New York City which would
have paid him $102,000 per year, and he remained unemployed until
July 1994, when he began working for a small company in
Nashville. Husband purchased a portion of the company to become
a part-owner. At the time, the company had "significant
outstanding receivables that were not being collected and revenue
was off significantly." Husband and his business partners agreed
not to be reimbursed for expenses they incurred on behalf of the
business in order to keep the company "afloat." The company
dissolved in March 1995.
The evidence in this case supports the trial court's
imputation of income. Husband's unemployment and subsequent
underemployment was voluntary and unreasonable. While under a
court order to pay a certain sum for support, husband declined a
transfer within Sears that would have paid him his then current
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salary for an undetermined time, with no available option for
continued employment. Although husband testified that he sent
out "over a thousand resumes, [and] worked with executive search
firms all over the country," the record contains no other
evidence of such efforts to find employment. The trial court was
entitled to infer that husband's decision to relocate to
Nashville was not a legitimate career move.
Moreover, husband forwent a job paying nearly $100,000 per
year for a risky venture in a small company soon to be bankrupt.
Regardless of the "reasonableness" of his decision, husband bore
the risk of success, not wife. See Antonelli, 242 Va. at 156,
409 S.E.2d at 119-20.
Husband also argues that the imputation of income violates
the principle that support awards are to be based on present
conditions, not future circumstances. He argues that by imputing
income to him, the court has improperly considered an uncertain
future event--the possibility that he will again reach the
earning capacity he achieved at Sears. This argument is
misplaced. In imputing income, the court considered an amount it
considered husband was presently able to earn.
III.
Husband contends that the trial court erred in retroactively
modifying his temporary support obligation. Code § 20-112
provides:
No support order may be retroactively
modified, but may be modified with respect to
any period during which there is a pending
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petition for modification, but only from the
date that notice of such petition has been
given to the responding party.
Husband contends that Code § 20-112 required the court to modify
the temporary support award effective May 1, 1995, the date he
filed his petition to reduce temporary support. We disagree.
The statute does not require a retroactive modification to take
effect on that date. To the contrary, the statute plainly states
that the order may be retroactively modified "with respect to any
period during which there is a pending petition."
Accordingly, the trial court's decision is affirmed.
Affirmed.
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