Enrique Andres Silberblatt v. Lori Ann Silberblatt ( 1999 )

U.rF§ItEfUFBLlSHED
PJ’_`€S€HC 2
COURT OF APPEALS OF VIRGlNIA
Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis,
Elder, Bray, Annunziata, Bumgardner, Lemons and
Senior Judge Overton*
Argued at Richmond, Virginia
ENRlQUE ANDRES SlLBERBLATT
V.
MEMoRANDUM oPIN1oN" BY
JUDcE RUDoLPH BUMGARDNER,
1793-97-3
JULY i3, i999M
Record No.
LORl ANN SILBERBLATT
UPON A REHEARING EN BANC
FROM THE CIRCUlT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
Cheryl Watson Smith (G. Marshall Mundy;
on briefs),
Mundy, Rogers & Frith, L.L.P.,
for appellant.
Terry N. Grimes (King, Fulghum, Snead,
Nixon & Grimes, P.C., on brief), for
appellee.
Enrique Andres Silberblatt and Lori Ann Silberblatt both
1997 equitable distribution award. A panel
appealed a June 27,
of this Court affirmed the trial court's award. We granted a
rehearing en banc to consider three issues raised by the
*Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § l7.l-401, recodifying Codef
§ l7-ll6.0l:l.
"Pursuant to Code § l7.1-413, recodifying Code
§ 17-l16.0lO, this opinion is not designated for publication.
IIl
husband. Because the other issues are not raised on this
rehearing, the decision of the panel, as stated in its
memorandum opinion dated August l1, 1998, is affirmed.' Here, we
consider the trial court's decision to classify husband's
medical practice as marital property, to classify gifts to his
wife as separate property, and not to impute income to his wife.
we hold that the trial court erred in classifying the property
and improperly refused to impute income. Accordingly, we
reverse and remand for reconsideration.
lt is within the trial court's discretion to fashion
equitable distribution decrees. _§e Srinivasan v. Srinivasan,
lO Va. App. '728, 732, 396 S.E.Zd 675, 678 (1990).
Enrique and Lori Silberblatt met in Birmingham, Alabama
where the husband was completing a fellowship in hand surgery,
and she was working as a nurse pursuing her nursing degree. The
couple started dating in February l985, and he moved to Roanoke
to complete his residency training. In September l987, the
husband began plans to open a private medical practice. He
opened the practice and began accepting patients in January
l988. The husband formed the practice as a professional
corporation and titled it in his name alone. lt became
successful quickly and earned gross receipts of $438,000 the
first year. The largest portion of the receipts was earned
before the parties married in November l988.
began having children. Given the age of the children and the
partieSl underStanding, 1 would affirm the trial court's
decision not to impute income to the wife.
BL|SHED
COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Bumgardner
Argued by teleconference
ENRIQUE ANDRES SILBERBLATT
MEMQRANDUM 0PINIoN' BY
V. ReC0rd NO. 1793-97-3 JUDGE RUDOLPH BUMGARDNER, III
_AUGUST 1l, 1998
LORI ANN SILBERBLATT
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
Cheryl Watson Smith (G. Marshall Mundy;
Mundy, Rogers & Frith, L.L.P., on briefs),
for appellant.
Terry N. Grimes (King, Fulghum, Snead,
Nixon & Grimes, P.C., on brief), for
appellee.
The trial court granted a final decree of divorce June 27,
1997 and decreed equitable distribution of the marital estate.
The husband appealed on six specific grounds, five of which
assert error in classification or valuation of various items of
property. The husband also appealed the action of the trial
court in increasing the award of permanent support because the
husband was not expected to pay the lump sum award during the
pendency of this appeal. The wife appealed arguing the trial
court improperly considered proceeds she received from the sale
of the marital home when decreeing equitable distribution and
erred in not awarding her attorney's fees.
°Pursuant to Code § 17-116.01O this opinion is not
designated for publication.
The trial court has sound discretion to make equitable
distribution determinations, and its decisions will not be
disturbed on appeal unless plainly wrong or unsupported by the
evidence. §gg McDavid v. McDavid, 19 Va. App. 406, 407-O8, 451
S.E.2d 713, 715 (1994); McClanahan V. McClanahan, 19 Va. App.
399, 401, 451 S._E.zd 691, 692 (1994). "The goal of equitable
distribution is to adjust the property interests of the spouses
fairly and equitably." Booth v. Booth, 7 Va. App. 22, 27, 371
S.E.2d 569, 572 (1988). _§g Gamble V. Gamble, 14 Va. App. 558,
570, 421 S.E.2d 635, 642 (1992).
Enrique and Lori Silberblatt were married on November 19,
1988. They had met in Birmingham, Alabama where the husband was
completing a fellowship in hand surgery and the wife was working
as a nurse. The couple started dating in February 1985. Before
the marriage, the husband was engaged in starting up his own
plastic surgery practice in Roanoke, Virginia. Preparations to
establish the practice began in September 1987, and the practice
began accepting patients in January 1988¢ The practice was
formed as a professional corporation and titled in the husband's
name alone. It was quickly successful earning gross receipts of
$438,000 in the first year of its existence. The largest part of
the receipts was earned before the parties were married.
Before the marriage, the wife helped the husband to
establish his practice by sending him sample forms and documents
which she acquired from the practice in Alabama where she worked.
After the marriage, she worked for one year at the husband's new
practice. She performed duties as a nurse and office manager and
received a salary. After the first year, she worked part-time
but no longer received a salary. The wife testified that the
fair value of the services she performed was $15,000 per year for
five years, or $75,000. lt was the husband's routine to withdraw
all retained earnings not necessary for operation of the business
at the end of the year. Thus, the marital estate received all of
the distributable profits from the business.
The husband's main objection to the decisions of the trial
court was that it included the value of his medical practice in
the calculations of the marital estate. Husband contends that
the trial court abused its discretion in classifying his medical
practice as marital property. He argues that the practice was
acquired before the marriage and thus was separate property. §gg
Code § 20-107.3(A)(1)(a). He argues that the only evidence of
the value of the practice at the time of the marriage was the
opinion of his expert who said the practice was worth $192,000 at
the end of 1988. The husband argues the wife could not have
acquired any marital interest in the practice because the value
. at the time of divorce was only $l65,000. Since the practice was
worth more at the time of marriage than at the time of divorce,
she could not claim to have contributed to an increase in the
value of separate property by making substantial contributions
during marriage which increased the value. Simply, because there
was no increase in value after the marriage, there was no
increase for her to claim. This argument depends on limiting
consideration of the wife’s efforts toward establishing and
building the husband's professional practice to those efforts
made after their marriage. It further is based on the assumption
that the entire present value of his private medical practice was
accomplished solely during the first eleven months he opened his
practice and nothing was attributable to the next eight years of
operation.
The trial court found that the wife significantly
contributed to the development of the medical practice. The
contributions began during their engagement before the practice
was opened. The wife was a registered nurse and worked in the
same field in which the husband was specializing. The trial
court was not limited to looking at the relationship of the
parties to building the family business after the marriage
ceremony. "Nothing in Code § 20-l07.3 limits consideration of
the various subsection (E) factors to the time frame of the
marriage." §§g Floyd v. Floyd, 17 Va. App. 222, 227, 436 S.E.2d
457, 460 (1993). "To disregard the parties' contributions to the
acguisition and maintenance of the property and how and when they
acquired rights and equities in the property - whether pre- or
post-marital - is to disregard the mandate of the statute." _gL
(emphasis added). yIf there are significant contributions tofa
business before a marriage, failure to consider these
contributions would create a windfall for the husband. §ge iQ4
at 226-27, 436 S.E.2d at 460. Non-monetary contributions are
considered along with monetary ones. See Code § 20-107.1(6);
L.C.S. V. S.A.S.,-19 Va. App. 709, 72l, 453 S.E.2d 580, 586
(1995), cert. denied, 517 U.S. 1124 (1996). Further, "1egal
title . . . has little or no bearing upon how [marital
wealth] . . . is to be equitably distributed by a monetary award
under Code § 20-107.3." Lightburn v. Lightburn, 22 Va. App. 612,
616, 472 S.E.2d 281, 283 (1996). _§g Garland v. Garland, 12 Va.
App. l92, 195, 403 S.E.2d 4, 6 (1991).
In reviewing an equitable distribution, we must consider the
couple's relationship, their interests in the "family business,"
and their respective contributions to it. In this case, the
practice was never exclusively the husband's. During theirW
engagement, they worked together to open the husband’s private
practice. After it was opened, they worked together; he as the
doctor, she as his nurse and office manager. This continued
until they began their family. As the trial court found, she was
very much a "junior partner" in helping him establish his
practice.
with her assistance he was able to network professionally
with other surgeons, to develop the necessary forms and
, procedures to operate the practice, and to benefit from her
personal experience in a similar, established office. Not only
did she work in the medical office and assist in maintaining the
business, she also traveled with the husband, continued her own
nursing education in his field of expertise, served as host to
his associates, and took care of both their home and children.
we find that the trial court properly determined that the
contributions the wife made to the medical practice, both before
and during the marriage, were significant. See Gottlieb v.
Gott1ieb, 19 Va. App. 77, 91-92, 448 S.E.2d e6e, 674-75 (1994);
Barnes v. Barnes, 16 Va. App. 98, 104-O5, 428 S.E.2d 294, 299
(1993).
Because the trial court was not limited to looking at her
contributions after the date of the marriage, it could look at
the entire history of the business, beginning when it first
opened and had generated no value. The wife's efforts began
before the practice opened, and the court found that she made
significant contributions to it during the first year. The court
could find that the entire value of the medical practice was
marital property. Therefore, we find that the trial court did
not err in classifying the practice as marital property and
including its entire value in its calculations of equitable
distribution.
The husband also objects to the court's determination that
the value of the business is $160,000 and complains that the
court improperly used a factor called "sweat equity" in making
its valuation. Both parties had an accountant testify to the
value of the medical practice. Both experts acknowledged that
valuing an individual private professional practice was
difficult. The husband’s expert set the value at $147,000 while.
the wife's expert set it at between $150,000 and $200,000. There
was not a great deal of evidence presented as to the method of
evaluating the practice. Basically both experts adjusted the
depreciation allowed on the personal property and discounted the
face value of the receivables.
Neither expert assigned any value for goodwill. Both
experts agreed that the income of the practice is less than the
statistical norm for this type of practice. The husband
testified that he was receiving reduced reimbursement from health
insurers, Medicare and Medicaid, that HMOs were increasingly
unwilling to pay for elective surgery, and that concern over
adverse side effects of breast implants caused a significant
reduction in this area of the practice. A review of the
practice's gross receipts also shows that receipts have been
declining in recent years. The wife disputed the weight of some
of these factors, but she was unable to offer any other
explanation why the earnings of the practice were less than
average. The wife alleged that the husband was voluntarily
underempl0yed, but the downward trend in income began in 1992,
long before divorce was on the h0rizon.
The values assigned to the practice by the experts were not
substantially different. The primary difference was that the
wife's expert felt that the true value must reflect some
additional value greater than simply valuing equipment and
receivables. During cross-examination, counsel characterized the
component as "sweat equity," The term was used to label the
opinion that there was additional value in this business because
it was an established professional practice. when the trial
court referred to "sweat equity," it was not introducing a new
factor into the evaluation process. It merely referred to the
term when explaining why it placed greater weight on the opinion
of the wife’s expert than that of the husband’s expert. The
finding that the medical practice was worth $165,000 fell within
the range of values presented by the two experts. we cannot say
that this was an abuse of discretion. "Where experts offer
conflicting testimony, it is within the discretion of the trial
court to select either opinion." Rowe v. Rowe, 24 Va. App. 123,
140, 480 S.E.2d 760, 768 (1997).
The husband also contends that the court erred in
classifying interspousal gifts as separate property in violation
of Code § 20-l07.3. A gift from one spouse to the other will be
the separate property of the donee if (l) the donor has the
intention to make the gift, (2) the gift is delivered or
transferred, and (3) the donee accepts the gift. §§g Theismann
v. Theismann, 22 Va. App. 557, 566, 471 S.E.2d 809, 813, aff’d en
banc, 23 Va. App. 697, 479 S.E.2d 534 (1996). The gifts in
question are anniversary presents, furs and jewelry. The
evidence supports the finding that they were completed gifts
intended to be the property of the wife. These gifts were "as
complete and irrevocable as the ring given at the marriage
ceremony and, like that ring, .». ., [they] may not be reclaimed
in a divorce proceeding." McClanahan, 19 Va. App. at 405, 451
S.E.2d at 694. we find the court did not abuse its discretion in
classifying the gifts as separate property of the wife.
Windsor House is the name of the building where the husband
conducted his medical practice. Title was vested in a
corporation named windsor House, Inc. The husband complains that
the court erred in not reducing the net value of this property by
$16,714 which was owed by the corporation to him individually.
The note was payable to the husband and was classified a marital
asset and included in the marital estate. The husband argues
that it should also have been deducted from the net value of the
building. There was little evidence presented about the
corporate structure or financial condition of this entity. lt is
only assumed that the husband was the sole stockholder. The only
evidence of the value of the corporation was the testimony of the
husband concerning the value of the building. He stated he had
bought the property for $165,000 and had spent $235,000 on
improvements. He indicated that he did not know what it was
really worth but did state that he would not sell it for
$400,000. The trial court valued the business property at
$400,000 offset by the mortgage on the property, which left a
value of $58,l58.
On the basis of the limited evidence of the full financial
condition of the corporation, the trial court accepted the
evidence of value that was available and offset the debt against
the property. To have ruled any further on the net worth of the
corporation as an entity would have been speculation. There was
no evidence of the other assets and liabilities. The evidence
does support the finding that the corporation’s value was the
Before the marriage, the wife helped the husband establish
his practice by sending him sample forms and documents that she
acquired from the Alabama practice for which she worked. After
the marriage, she worked for one year at the husband's new
practice. She received a salary for working as a nurse and
office manager. After the first year, she worked part-time but
no longer received a salary. The wife testified that the fair
value of the services she performed was $l5,000 per year for
five years, or $75,000. lt was the husband's routine to
withdraw all retained earnings not necessary for operation of
the business at the end of the year. The marital estate
received all of the profits distributed from the business.
I. CLASSIFICA'I’ION OF MEDICAL PRACTICE
The husband argues that the trial court erred when it
classified his medical practice as marital property. He argues
that since he acquired the practice before the marriage it was
separate property. We agree. Code § 20-lO7.3(A)(l)(i) provides
that "all property, real and personal, acquired by either party
before the marriage" is separate property. "Marital property is
property acquired by each party during the marriage which
is not separate property as defined above." Code
§ 20-lO7.3(A)(2). The husband's practice opened in January
1988, and the parties did not marry until November of that year.
By statute, the practice is separate property. The trial court
value of the building. The mortgage indebtedness was deducted
from that, and the net difference of $58,158 was included as a
marital asset.
The value of the note owed to the husband by the corporation
was included as a marital asset. As the trial court noted, the
corporation was a separate entity and liable for payment of the
note to the husband. The husband could have presented clearer
and more complete evidence of the corporation, and the trial
court could then have determined net worth of the corporation
according to accounting procedures. Since the trial court had to
make its decision on the evidence as presented, we find that the
record supports the decision and the trial court did not err.
The husband contends that the court erred in declining to
impute income to the wife. He argues that income should have
been imputed to her on at least a part-time basis. The children
were in pre-school three days per week, and the wife admitted
that employment opportunities were available. The trial court
refused to impute income finding that "it was the established
agreement of the parties that wife would be a full-time mother"
_ and that she was fulfilling that role as she had when the couple
was still married. The court recognized her desire to be a
homemaker. A "trial court shall impute income to a custodial
parent who is voluntarily unemployed or underemployed where the
age of the child and circumstances permit the custodial parent to
be gainfully employed." Bennett v. Dep't of Social Servs., Div.
of Child Support Enforcement, 22 Va. App. 684, 692, 472 S.E.2d
668, 672 (1996). Given the age of the children and the parties’
agreement, the trial court did not abuse its discretion.
The husband contends that the court erred in identifying and
valuing the parties’ personal property. He complains that the
list of personal property is incomplete and that some values
assigned to the various items of personal property are wrong.
The record consists primarily of various lists with values
assigned by the parties. Having reviewed these, we find that
there is evidence to support the findings made by the trial
court.
During the divorce proceedings, the parties agreed that the
wife would receive the net proceeds from the sale of their
residence. The amount, $69,000, was not to be considered by the
trial court in making an equitable distribution under Code
§ 20-107.3. In her cross~appeal, the wife alleges the trial
court erred by considering that amount while determining
equitable distribution. The court designated the entire amount
as separate property, and did not include it in the marital
estate. The agreement of the parties was not introduced, so we
_ do not know the precise wording of it. pThe record presents only
the characterizations of the agreement that were made by the
witnesses. The trial court acknowledged it was aware of the'
agreement but noted that it was only considering the $69,000 when
explaining why it did not consider the wife's new mortgage debt
under Code § 20-107.3(7) or considering the $69,000 under Code
§ 20-107.3(l0). Considering the limited manner in which the
trial court did consider the property, we cannot say that it
violated the terms of the agreement.
The wife contends that the court erred in failing to award
her attorney’s and expert witnesses' fees. The record shows that
the matter was considered fully by the court. It had previously
made an award to the wife of partial attorney’s fees5 It did
award her costs to include the costs of court reporters. In
denying further attorney’s fees after decreeing equitable
distribution, the court was aware that the wife would have assets
of approximately $200,000. "An award of attorney’s fees is a
matter submitted to the trial court's sound discretion and is
reviewable on appeal only for an abuse of discretion." Graves v.
Graves, 4 Va. App. 326, 333, 357 S.E.zd 554, 558 (1987). The
court's goal is to make a determination which is reasonable under
all the circumstances. §§§ McGinnis v. McGinnis, 1 Va. App. 272,
277, 338 S.E.2d 159, 162 (1985). we cannot find that the denial
of additional attorney’s fees was an abuse of discretion.
After the court had announced its decision by letter opinion
but before the final order had been entered, the wife moved the
_ court to amend the award of support. She alleged that the
husband had indicated that he would not pay the lump sum award of
$127,000. `She requested the increase to "bridge the gap" ing
income until he paid the award. The trial court had awarded
permanent spousal support of $2,250 per month. In response to
the motion of the wife, the court increased the support to $3,477
and designated it as permanent support. The husband objects to
_]_2_
the award being permanent and argues the increase should only
have been awarded pendente lite until the husband pays the lump
sum. The husband does not object to the increase if it is
limited to the period when the lump sum award is not paid. we
find that the court erred in granting the increase as a permanent
award. To the extent the award exceeds the temporary relief
requested in the motion, it is error. The case is remanded for
entry of an order that terminates the increased portion of
spousal support upon payment in full of the lump sum award. In
all other respects, the trial court is affirmed.
Affirmed in part,
reversed in part,
and remanded.
_.13_
erred in classifying the medical practice as marital property
and including it in the marital estate.
Under certain circumstances, separate property can become
marital property. This occurs when the separate property is
commingled with marital property or the non-owning spouse makes
contributions that enhance the property's value. _§§ Code
§ 20-lO7.3(A)(3)(a); Gottlieb v. Gottlieb, 19 Va. App. 77, 98,
448 S.E.2d 666, 674 (1994); Barnes v. Barnes, 16 Va. App. 98,
104-O5, 428 S.E.2d 294, 299 (l993). The non-owning spouse bears
the burden of proof. _§§ Code § 20-107.3(A)(3)(a). However,
there was no evidence that the wife's contributions were
"significant and result[ed] in substantial appreciation of the
separate property," and there was no retracing of commingled
marital funds. ;d4 Indeed, the husband's expert, who provided
the only evidence of value, testified that the property
decreased in value during the marriage. At the end of l988, it
was valued at $l92,000 and at the time of divorce, its value was
$165, 000 .
II. CLASSIFICA'I`ION OF INTERSPOUSAL GIF'I'S
Next, we consider whether the trial court erred in
classifying interspousal gifts as separate property. The gifts
include furs and jewelry, which the husband gave the wife during
the course of the marriage. Interspousal gifts do not fall
within the scope of Code § 20-lO7.3(A)(1), which defines
separate property, and remain presumptively marital.
_ 4 _
"'[W]hether the property is separate or marital is determined by
the statutory definition and is not determined by legal title.
Lightburn v. Lightburn, 22 Va. App. 6l2, 616, 472 S.E.2d 28l,
283 (l996) (quoting Garland v. Garland, 12 Va. App. 192, 195,
403 S.E.2d 4, 6 (l99l)).
Code § 20-lO7.3(A)(l) and (2)(iii) governs this issue.
Subsection (A)(l) expressly excludes from the definition of
separate property gifts from "the other party." Thus, the
legislature expressly provided that interspousal gifts be
marital property. ee Theismann v. Theismann, 22 Va.
App.
471 S.E.2d 809, aff'd en banc, 23 Va. 697,
App.
(l996).
the gifts as separate property.
479 S.E.2d 534We conclude that the trial court erred in classifying
Ill
557,
Annunziata, J., with whom Fitzpatrick, C.J., Benton, Coleman,
Elder, Bray, and Lemons, JJ., join, concurring.
III. IMPU'I'A'I'ION OF INCOME TO WIFE
The trial court's decision to not impute income will be
upheld on appeal unless it is "plainly wrong or unsupported by
the evidence." Sargent v. Sargent, 20 Va. App. 694, 703, 460
S.E.Zd 596, 600 (1995). l
Both parents owe a duty of support to their minor children.
_§§ Code § 20-6l; Kelley v. Kelley, 248 Va. 295, 298, 449 S.E.2d
55, 56 (l994). "A custodial parent has no less responsibility
to provide support to a minor child than does the noncustodial
parent." Bennett v. Dept. of Social SerVs., Div. of Child
Support Enforcement, 22 Va. App. 684, 692, 472 S.E.2d 668, 672
(l996). Under prior binding case law, it is clear that parents
"cannot contract away their children's rights to support nor can
a court be precluded by agreement from exercising its power to
decree child support." Kelley, 248 Va. at 295, 449 S.E.2d at
56.
The parties' agreement that wife would remain unemployed
outside the home cannot substitute for the trial court's
analysis of the factors that must be considered when determining
child support and the parties' respective obligations for its
payment. See Code § 20-lO8.1. The trial court's decision on
this ground is plainly wrong.
Furthermore, the evidence fails to support the factual
finding that income need not be imputed to the wife. The trial
court has discretion to impute income to either or both the
custodial and noncustodial parent who is voluntarily unemployed,
provided that the court may not impute income to the custodial
parent except when the child is in school or child care services
are available. §§Q Code § 20-lO8.l(B)(3); Bennett, 22 Vaj App.
at 69l, 472 S.E.2d at 672. Here, the evidence shows that both
children are in pre-school two days per week, each child
spending a third day in pre-school while the other remains at
home. The evidence also shows that wife was prepared to return
to school full-time to obtain a law degree and that, but for her
failure to timely submit an application for admission, she would
be a full-time student upon acceptance. It follows that neither
the age of the children nor any other circumstances presented an
obstacle to wife's gainful employment.
The court also failed to consider evidence of wife's
earning capacity. §§g Stubblebine v. Stubblebine, 22 Va. App.
703, 708, 473 S.E.2d 72, 74 (l996) (finding that a trial court
may consider earning capacity as well as actual earnings in
imputing income and fashioning an award of support as long as it
applies "'the circumstances in existence at the time of the
award.'" (quoting Payne v. Payne, 5 Va. App. 359, 363, 363
S.E.2d 428, 430 (l987))). The evidence shows that wife was
capable of earning $18 per hour as a trained surgical nurse and
_7_
that she had recent job experience as a nurse and office
managery having worked in husband's office from 1988 to l996.
wife testified that, while she was not paid actual wages by her
husband, the value of her part-time services had she been
earning a normal hourly rate for a surgical nurse was $15,000
per year. Furthermore, at the time of the hearing, wife was
employed as a nurse several days a month, earning $l8 per hour.
_S;@_ Brody v. Brodyj, 16 Va. App. 647, 651, 432 S.E.Zd 20, 22
(l993) ("[A] trial court may impute income based on evidence of
recent past earnings.").
Accordingly, we find that the trial court abused its
discretion when it declined to impute income to the mother,
citing the parties' agreement that wife would be a full-time
mother. Not only is the parties' agreement relieving wife of
her obligation to provide support to the parties' minor children
immaterial, the court's consideration of its terms as binding on
its determination of support resulted in its failure to fully
consider all the evidence in support of imputation and its
failure to impute income as supported by the evidence in this
case. §§§ Hiner v. Hadeed, 15 Va. App. 575, 578, 425 S.E.2d
8ll, 813 (l993) (“In any judicial proceeding to determine child
support, the court must consider all relevant evidence
concerning the needs of the child and the ability of the parents
to provide for those needs.").
For the foregoing reasons, we hold that the medical
practice is separate property, the gifts to the wife are marital
property, and the trial court erred in refusing to impute income
to the wife. Accordingly, we reverse the trial court‘s decision
with respect to the issues raised herein and remand for
reconsideration in accordance with this opinion.
Reversed and remanded.
Bumgardner, J., with whom Willis, and Overton, JJ., join,
dissenting, in part.
1 respectfully dissent from the majority's reversal of the
trial court's decision not to impute income. "A trial court has
discretion to impute income to [a party] who is voluntarily
unemployed." Bennett v. Dep't of Social Serv., Div. of Child
Support Enforcement, 22 Va. App. 684, 691, 472 S.E.2d 668, 672
(l996). §§§ COde § 20-l08.l(B)(3).
On appeal, the evidence is viewed in the light most
favorable to the wife, the prevailing party below. §§§ Cook v.
COOk, l8 Va. App. 726, 73l, 446 S.E.2d 894, 896 (l994). lt
established that the children were in pre-school three days per
week, and the wife admitted that employment opportunities were
available. The trial court refused to impute income finding
that "it was the established agreement of the parties that wife
would be a full-time mother" and that she was fulfilling that
role as she had when the couple was still married.
The decision not to impute income "will be upheld on appeal
unless it is plainly wrong or unsupported by the evidence."
Bennett, 22 Va. App. at 691-92, 472 S.E.2d at 672. The evidence
supports the finding that the parties had an understanding that
the wife would raise the children and not work outside the home
while they were very young. When first married, the wife had
worked in the medical practice, but she was a full-time mother
and did not work regularly outside the home once the couple
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