Stanley Hubbard v. Cyrenne Hubbard ( 2008 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge Haley and Senior Judge Coleman
STANLEY HUBBARD
MEMORANDUM OPINION *
v. Record No. 1433-08-2 PER CURIAM
NOVEMBER 18, 2008
CYRENNE HUBBARD
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
(Julie M. Cillo; Hall & Hall, PLC, on briefs), for appellant.
(Scott D. Cardani; Cardani Law Firm, PC, on brief), for appellee.
Stanley Hubbard (husband) and Cyrenne Hubbard (wife) were divorced on May 16, 2008.
Husband argues that the trial court erred by (1) not limiting the duration of the spousal support
award; (2) not imputing income to wife for spousal support purposes; (3) not imputing income to
wife for child support purposes; (4) failing to give husband credit for payments he made on the
marital liabilities during separation; (5) dividing the marital property based on the current values;
and (6) not awarding husband more than 50% of the assets since he paid toward the marital
liabilities during the separation. Upon reviewing the record and briefs of the parties, we
summarily affirm the decision of the trial court. See Rule 5A:27.
BACKGROUND
Husband and wife were married on August 13, 1994, separated on September 5, 2006,
and divorced on May 16, 2008. The parties have four minor children, who ranged in age from
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
two to ten at the time of separation. Wife is a stay-at-home mother and has been out of the
workforce for over ten years. The parties agreed to a shared custody arrangement.
During the separation, husband paid the mortgage and household expenses, as well as the
marital credit cards.
The trial court awarded wife $2,500 per month in spousal support with an undefined
duration. The trial court did not impute income to wife. Husband requested a credit for the
payments he made toward the marital debt, but the trial court declined to do so and instead
divided the marital assets and debts equally. Husband timely noted his appeal.
ANALYSIS
“When reviewing a trial court’s decision on appeal, we view the evidence in the light
most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”
Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003).
Duration of spousal support
Husband argues that the trial court should have awarded wife a spousal support award
with a defined duration. Wife was thirty-seven years old at the time of the final hearing, and she
was in good health. The parties’ youngest child is expected to enter kindergarten in 2010. Wife
has a college degree and worked full-time prior to the birth of her children. Wife hopes to return
to work after her youngest child enters school and she receives the necessary training.
A trial court has broad discretion in awarding spousal support, and its ruling will not be
overturned unless there is an abuse of discretion. Brooks v. Brooks, 27 Va. App. 314, 317, 498
S.E.2d 461, 463 (1998) (citations omitted).
The trial court also has discretion in determining whether to award spousal support with a
defined duration. See Code § 20-107.1(C) (“The court, in its discretion, may decree that
maintenance and support of a spouse be made in periodic payments for a defined duration, or in
-2-
periodic payments for an undefined duration, or in a lump sum award, or in any combination
thereof.”).
“Code § 20-107.1(F) specifically requires that in a contested case, the trial court shall
provide written findings and conclusions identifying the statutory factors that support the court’s
ruling on a request for spousal support.” Robinson v. Robinson, 50 Va. App. 189, 195, 648
S.E.2d 314, 317 (2007).
Here, the trial court explained in detail its spousal support award by examining each
factor of Code § 20-107.1(E). The trial court explained that the parties agreed that wife would
leave the workforce to take care of the children, which she has been doing for over ten years.
The trial court also stated that the “care of the children will necessitate the [wife’s] continued
absence from the workforce . . . . The parties’ custody arrangement and the father’s work
requirements will necessitate a great degree of parental oversight.”
Considering the parties’ circumstances, the trial court did not abuse its discretion in
awarding wife spousal support with an undefined duration.
Imputing income
Husband argues that the trial court erred by not imputing income to wife for spousal
support and child support purposes. He presented evidence to show that wife earned $30,000 per
year when she left the workforce, and he argued that this amount should be imputed to her.
In setting or modifying spousal support or child support, a court
may impute income to a party voluntarily unemployed or
underemployed. See Calvert v. Calvert, 18 Va. App. 781, 784, 447
S.E.2d 875, 876 (1994); Stubblebine v. Stubblebine, 22 Va. App.
703, 710, 473 S.E.2d 72, 75 (1996) (en banc). Whether a person is
voluntarily unemployed or underemployed is a factual
determination. In evaluating a request to impute income, the trial
court must ‘consider the [parties’] earning capacity, financial
resources, education and training, ability to secure such education
and training, and other factors relevant to the equities of the
-3-
parents and the children.’ Niemiec v. Commonwealth, 27
Va. App. 446, 451, 499 S.E.2d 576, 579 (1998).
Blackburn v. Michael, 30 Va. App. 95, 102, 515 S.E.2d 780, 783-84 (1999).
Husband presented evidence that wife had a college education and worked earlier in the
marriage, earning $30,000 per year at her last full-time job. She explored teaching as a potential job
once the youngest child entered school, but she would need two years of training. Husband argued
that the trial court should have imputed $30,000 per year income to wife because she is young and
capable of working.
A court may impute income based on “evidence of recent past earnings.” Brody v. Brody,
16 Va. App. 647, 651, 432 S.E.2d 20, 22 (1993). Wife testified that the last time that she worked
full-time was over ten years ago, and that was when she was earning $30,000 per year. Wife has
not worked full-time in over ten years, so there was no “evidence of recent past earnings.” Id.(emphasis added).
Citing Srinivasan v. Srinivasan, 10 Va. App. 728, 396 S.E.2d 675 (1990), husband argues
that wife has the duty to earn as much as she can, so that her spousal support need is reduced.
See id. at 734, 396 S.E.2d at 679 (“one who seeks spousal support is obligated to earn as much as
he or she reasonably can to reduce the amount of the support need”).
“Neither Srinivasan nor any other Virginia case has held that, for purposes of calculating
spousal support, a stay-at-home spouse capable of working must go to work immediately after
the divorce trial or face a judicially imposed imputation of income.” Brandau v. Brandau, 52
Va. App. 632, 640, 666 S.E.2d 532, 536 (2008).
“Furthermore, in determining whether to impute income, the circuit court ‘must look to
current circumstances and what the circumstances will be within the immediate or reasonably
foreseeable future, not to what may happen in the future.’” McKee v. McKee, 52 Va. App. 482,
-4-
490, 664 S.E.2d 505, 509 (2008) (quoting Srinivasan, 10 Va. App. at 735, 396 S.E.2d at 679(internal quotations omitted)).
“The party seeking the imputation is required to present evidence ‘sufficient to enable the
trial judge reasonably to project what amount [of income] could be anticipated.’” Id. at 491, 664
S.E.2d at 510 (quoting Joynes v. Payne, 36 Va. App. 401, 421, 551 S.E.2d 10, 20 (2001)). See
also Bennett v. Commonwealth, 22 Va. App. 684, 693, 472 S.E.2d 668, 672-73 (1996).
Husband presented evidence of wife’s income from ten years ago, but there was no
evidence concerning the level of income she could expect with her current circumstances. She
still had a young child at home, and she expected that she would need an additional two years
once he entered school to obtain a teaching certificate. Her future employment is speculative.
The trial court held that wife’s obligations to her children meant that it was unrealistic for her to
work at this time.
Husband also argues that income should be imputed to wife for child support purposes;
however, like spousal support, the decision to impute income to a parent for child support
purposes is discretionary. See Calvert, 18 Va. App. at 784, 447 S.E.2d at 876. The child support
guidelines are presumed to be correct, but courts may deviate therefrom to impute income to a
parent. Code §§ 20-108.1 and 20-108.2.
“Income may not be imputed to a custodial parent who stays home to care for a child, if
the ‘child is not in school, child care services are not available and the cost of such child care
services are not included in the computation.’” Brody, 16 Va. App. at 650, 432 S.E.2d at 22(quoting Code § 20-108.1(B)(3)).
-5-
Husband presented no evidence of any child care services being available and what the
cost would be. In fact, the parties had agreed that wife would stay home with the children, at
least until they entered school.
The trial court did not abuse its discretion in refusing to impute income to wife.
Marital liabilities
Husband argues that the trial court erred in not giving him credit for paying marital
liabilities during the separation or for awarding him more of the assets. During the separation,
husband paid the mortgage, household expenses, and marital credit cards.
In fashioning an equitable distribution award, the court must consider the factors in Code
§ 20-107.3(E). One of the factors for the court to consider is the monetary and nonmonetary
contributions of the parties in maintaining the marital property. Code § 20-107.3(E)(2). In
classifying the property, the court shall determine whether a party has proved that separate
property has been traced out of commingled property. Code § 20-107.3(A)(3)(d-g).
Husband presented evidence of how much marital debt he paid during the separation. He
requested a dollar-for-dollar credit for the increase in the equity in the home and the payment of
marital debt. A court is not required to give a dollar-for-dollar credit for payment of debts out of
separate property. Von Raab v. Von Raab, 26 Va. App. 239, 250, 494 S.E.2d 156, 161 (1997)
(citing Ellington v. Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630 (1989)).
If the court were not willing to order a dollar-for-dollar credit, then husband sought more
than 50% of the assets to offset his payment of the marital debt.
On appeal, “decisions concerning equitable distribution rest within the sound discretion
of the trial court and will not be reversed on appeal unless plainly wrong or unsupported by the
evidence.” McDavid v. McDavid, 19 Va. App. 406, 407-08, 451 S.E.2d 713, 715 (1994) (citing
Srinivasan, 10 Va. App. at 732, 396 S.E.2d at 678 ).
-6-
Here, the trial court stated that it considered all of the factors in Code § 20-107.3(E) and
ordered equal division of the parties’ assets and debts. The trial court declined to award a credit
to husband for payments on the “pre-divorce debt.”
The evidence reflects that the trial court considered all of the factors and declined to
award husband more than 50% of the assets. The court also chose to use the current values of
the marital debt for the division of debt, as opposed to using the date of separation and giving
husband a credit for the monies he paid.
“Subject to these enumerated statutory factors [in Code § 20-107.3(E)], ‘this division or
transfer of jointly owned marital property, [the apportionment of marital debts,] and the amount
of any monetary award, is within the sound discretion of the trial court.’” Von Raab, 26
Va. App. at 246, 494 S.E.2d at 159 (quoting Dietz v. Dietz, 17 Va. App. 203, 216, 436 S.E.2d
463, 471 (1993)).
The court did not abuse its discretion in determining its equitable distribution award.
CONCLUSION
The trial court’s rulings on the issues of spousal support, child support, and equitable
distribution are summarily affirmed. Rule 5A:27.
Affirmed.
-7-