Dudley A. Cash v. Barbara Clark, F/K/A Barbara C. Cash ( 2007 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge Haley and Senior Judge Coleman
DUDLEY A. CASH
MEMORANDUM OPINION *
v. Record No. 0170-07-3 PER CURIAM
NOVEMBER 13, 2007
BARBARA CLARK, F/K/A
BARBARA C. CASH
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
Michael S. Irvine, Judge
(Linda J. Woods; Woods & Christensen, P.C., on brief), for
appellant.
(Thomas W. Dixon, Jr.; Nelson, McPherson, Summers & Santos,
L.C., on brief), for appellee.
Dudley A. Cash appeals from the circuit court’s December 19, 2006 order finding a change
in circumstances warranted a reduction in the spousal support he owed Barbara Clark. On appeal,
Cash lists twenty-three questions presented, but appears to contend only that the trial court erred in
(1) employing an incorrect standard of review, (2) imputing income to him, (3) making certain
evidentiary rulings, (4) determining the parties’ incomes, and (5) “declining to consider” findings of
the Social Security Administration regarding his disability. Upon reviewing the record and briefs,
we conclude that this appeal is without merit. We summarily affirm the decision of the trial court in
part, see Rule 5A:27, and we dismiss the appeal in part.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
“On appeal, we construe the evidence in the light most favorable to [Clark], the
prevailing party below, granting to [her] evidence all reasonable inferences fairly deducible
therefrom.” Donnell v. Donnell, 20 Va. App. 37, 39, 455 S.E.2d 256, 257 (1995).
The parties were divorced by final decree dated March 27, 2002. The decree ordered Cash
to pay Clark $1,400 in monthly spousal support and an additional $10,750 annually as her share of
Cash’s annual lottery payment.
On August 14, 2003, Cash sought a reduction in his spousal support obligation, alleging he
had a “substantial decrease” in his income. Finding Cash was voluntarily unemployed, the court
denied the motion.
In February 2004, Cash again petitioned the court for a reduction of spousal support, arguing
a shoulder injury prevented him from working. After a series of continuances, a non-suit, and the
re-filing of his request for a change in support, the court heard evidence on the matter. In a
December 19, 2006 final order, the trial court reduced Cash’s monthly spousal support obligation to
$750. The court also denied Cash’s motion for reconsideration. This appeal followed.
ANALYSIS
Standard of Review
Cash argues the trial court “erred in its standard of review of a motion to reduce spousal
support.”
Code § 20-109 provides that “[u]pon [the] petition of either party the court may increase,
decrease, or terminate . . . spousal support and maintenance . . . as the circumstances may make
proper.” “The party moving for a modification of support payments must prove ‘both a material
change in circumstances and that this change warrants a modification of support.’” Furr v. Furr,
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13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992) (quoting Schoenwetter v. Schoenwetter, 8
Va. App. 601, 605, 383 S.E.2d 28, 30 (1989)).
Cash fails to explain how the court misapplied the standard of review, and instead
appears to challenge the court’s conclusions. In fact, the court noted in its order that it found a
change in circumstances which warranted a reduction in husband’s spousal support obligation
and reduced spousal support to $750 monthly. The record indicates the court applied the proper
standard. The trial court considered the evidence and the relevant statutory factors in its finding.
Imputation of Income
Cash challenges the court’s finding that he is voluntarily unemployed and its imputation of
income to him in the amount of $2,000 per month.
“[A] court may impute income to a party who is voluntarily unemployed or
underemployed. Imputation of income is based on the principle that a spouse should not be
allowed to choose a low paying position that penalizes the other spouse . . . .” Calvert v. Calvert,
18 Va. App. 781, 784-85, 447 S.E.2d 875, 876-77 (1994) (citations omitted).
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 parents and the children.”
Blackburn v. Michael, 30 Va. App. 95, 102, 515 S.E.2d 780, 784 (1999) (citation omitted).
“Imputation of income is within the trial [court]’s discretion . . . .” Sargent v. Sargent, 20
Va. App. 694, 704, 460 S.E.2d 596, 601 (1995).
The evidence demonstrated that although Cash suffered shoulder and back injuries, he
was physically capable of performing “light duty work.” Nevertheless, Cash has failed to seek
any employment whatsoever. Relying on Cash’s prior employment, the medical evidence
concerning the extent of his injuries, testimony regarding Cash’s skills, and Cash’s demonstrated
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ability to perform certain work-related activities, the court permissibly concluded appellant was
voluntarily unemployed.
The court’s imputation of $2,000 monthly income was likewise within the court’s
discretion and supported by the evidence of Cash’s past employment and experience. The
evidence must be sufficient to “enable the trial judge reasonably to project what amount could be
anticipated.” Hur v. Virginia Dep’t of Soc. Servs., 13 Va. App. 54, 61, 409 S.E.2d 454, 459
(1991). Considering the medical testimony, Cash’s evidence of his physical limitations, his
recent earning capacity, and the demonstration of his work-related skills, the trial court did not
abuse its discretion by imputing $2,000 in monthly income to Cash.
In modifying a spousal support order, Code § 20-109 instructs the trial court to consider
the factors set forth in subsection (E) of Code § 20-107.1. These include earning capacity,
education, skills, training, and age. See Code § 20-107.1. The evidence was sufficient for the
trial court, by applying the factors of Code § 20-107.1 to impute $2,000 of income to Cash.
Furthermore, “[t]he determination whether a spouse is entitled to support, and if so how
much, is a matter within the discretion of the court and will not be disturbed on appeal unless it is
clear that some injustice has been done.” Dukelow v. Dukelow, 2 Va. App. 21, 27, 341 S.E.2d
208, 211 (1986). Moreover, “‘[w]here, as here, the court hears the evidence ore tenus, its finding
is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without
evidence to support it.’” Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630,
631 (1988) (quoting Martin v. Pittsylvania County Dep’t of Soc. Servs., 3 Va. App. 15, 20, 348
S.E.2d 13, 16 (1986)). The record supports the court’s spousal support award.
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Evidentiary Rulings
Cash asserts the trial court erred “in not allowing Dr. Grice, expert witness, to testify
regarding his knowledge of the availability of ‘light duty’ jobs in the area where Mr. Cash lived.”
He also contends the “court erred when it sustained objections 2 & 3 in the motion in limine by
finding they were leading questions.”
Rule 5A:20(e) mandates that the opening brief include “[t]he principles of law, the
argument, and the authorities relating to each question presented . . . .”
Cash has the burden of showing that reversible error was committed. See Lutes v.
Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992). Mere unsupported assertions
of error “do not merit appellate consideration.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415
S.E.2d 237, 239 (1992). Furthermore this Court “will not search the record for errors in order to
interpret the appellant’s contention and correct deficiencies in a brief.” Id. Nor is it this Court’s
“function to comb through the record . . . in order to ferret-out for ourselves the validity of
[appellant’s] claims.” Fitzgerald v. Bass, 6 Va. App. 38, 56 n.7, 366 S.E.2d 615, 625 n.7 (1988)
(en banc).
Here, Cash did not comply with Rule 5A:20(e); the opening brief does not contain
sufficient principles of law, argument, or citation to legal authorities or the record to fully
develop Cash’s arguments. Thus, we need not consider Cash’s arguments, Theisman v.
Theisman, 22 Va. App. 557, 572, 471 S.E.2d 809, 816, aff’d on reh’g en banc, 23 Va. App. 697,
479 S.E.2d 534 (1996), and dismiss the appeal as to these issues.
Clark’s Income
Cash asserts the trial court incorrectly determined Clark’s income. Specifically, he
contends the court erred in computing her income based on a thirty-six-hour-work week instead
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of a forty-hour work week and by failing to include as income money Clark received from
selling her stock.
In its ruling, the trial court noted that Clark currently works approximately thirty hours
per week. The court had previously opined that Clark could work forty hours per week, but
accepted Clark’s testimony that her current job is more strenuous than her previous employment
and calculated her salary based on a thirty-six-hour work week, thus imputing income to her.
As noted above, the decision to impute income is within the sound discretion of the trial
court. See Saleem v. Saleem, 26 Va. App. 384, 393, 494 S.E.2d 883, 887 (1998). Employing
the most deferential standard of appellate review, we reverse such findings “only if plainly
wrong or not supported by credible evidence.” Budnick v. Budnick, 42 Va. App. 823, 841, 595
S.E.2d 50, 59 (2004). Clark’s testimony regarding the change in the type of work she performs
supports the court’s decision to calculate her employment income based on working only
thirty-six hours per week.
Cash asserts Clark withdrew $20,000 from her stock portfolio in 2003 and an additional
$22,000 in 2004. He contends that “[w]hile the stock themselves should not be calculated as her
income, once they are liquidated and used with her general income, they should be considered
the same way interest is calculated . . . .”
Earnings on assets received in equitable distribution must be considered in determining
spousal support, but it is error to consider assets themselves as income. See Barker v. Barker, 27
Va. App. 519, 529-30, 500 S.E.2d 240, 245 (1998). Here, the trial court specifically found there
was no evidence suggesting Clark sold the stock for a profit, and Cash does not contest that
finding. That Clark may have used the money to meet her living expenses does not alter the fact
that she merely liquidated an asset. Credible evidence supports the court’s finding, and we find
no abuse of discretion in its refusal to include the figures in the calculation of her income.
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Cash’s Income
Cash challenges the court’s determination of his income. He first argues the trial court
incorrectly included the gross amount of the full $50,000 of his annual lottery award as his income.
Cash reasons that because “the lottery funds were considered a property settlement with Mr. Cash
paying to Ms. Clark a net payment of $10,750.00 per year,” the entire amount of the award should
not be counted as his income.
In determining the amount of Cash’s spousal support obligation, the trial court specifically
noted that it considered the annual payment of $10,750 Cash made to Clark and factored into the
support amount the tax benefits Clark received by the fact that Cash paid the taxes on the full
amount of the annual lottery payout. The record supports the court’s ruling.
Citing only Code § 20-108.2, the guidelines for the determination of child support, Cash
asserts the trial court improperly considered as his income $650 he receives in monthly rent on
property he owns. Without citation to the appendix, he asserts the evidence proved his mortgage
obligation on the property is over $900 monthly and that, therefore, the court should not have
calculated the rental payments as his income. “‘Statements unsupported by argument, authority,
or citations to the record do not merit appellate consideration.’” Budnick, 42 Va. App. at 833,
595 S.E.2d at 55 (quoting Roberts v. Roberts, 41 Va. App. 513, 527, 586 S.E.2d 290, 297
(2003)); see Rule 5A:20 (requiring appellants to brief the “principles of law, the argument, and
the authorities relating to each question presented”). Because Cash has failed to properly
develop this argument with pertinent authority, we decline to address it, and dismiss the appeal
as to that issue. See Rule 5A:20(e).
Spousal Support
Cash asserts the trial court erred by increasing the initial amount of spousal support from
$675 to $750 after Clark alerted the court to an error in the calculation of her income, “in not giving
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a rationale for granting” Clark support, and “utilizing gross income for Mr. Cash while utilizing net
income for Ms. Clark . . . .”
Again, as Cash presented no authority to support these claims, we need not address them
and dismiss the appeal as to those issues. See Rule 5A:20(e).
Social Security Administration Evidence
Cash argues the trial court erred by refusing to allow the admission of new evidence at the
hearing on the motion to reconsider. Specifically, Cash sought to present evidence that the Social
Security Administration found he was disabled and approved his disability claim.
In its opinion letter, denying Cash’s reconsideration motion, the court noted simply that the
Social Security approval was “not before the court when the court heard the case in October of
2005.”
“Motions to reopen a hearing to take further evidence are matters within the [trial
judge’s] discretion.” Shooltz v. Shooltz, 27 Va. App. 264, 269, 498 S.E.2d 437, 439 (1998). At
the time Cash filed his motion, he did not know the amount of his projected disability payment,
although he asserted he believed it would be less than the $2,000 a month the court imputed to
him. As the evidence Cash submitted was incomplete, referred to events occurring well after the
court’s ruling, and would not necessarily require the court to alter its ruling, we cannot say the
trial judge abused his discretion. No evidence in the record indicates that this finding was
plainly wrong.
Accordingly, the judgment of the trial court is summarily affirmed in part and dismissed
in part.
Affirmed in part and dismissed in part.
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