Daniel Brian Drysdale v. Deborah Whitt Drysdale

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Bumgardner
DANIEL BRIAN DRYSDALE
MEMORANDUM OPINION *
v. Record No. 2438-99-3 PER CURIAM
APRIL 4, 2000
DEBORAH WHITT DRYSDALE
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Duane E. Mink, Judge
(Charles B. Phillips; Phillips & Swanson, on
brief), for appellant.
(Deborah Whitt Drysdale, pro se, on brief).
Daniel Brian Drysdale (husband) appeals the decision of the
circuit court granting his motion to modify spousal support paid
to Deborah Whitt Drysdale (wife). Husband contends that the trial
court erred by (1) failing to impute sufficient income to wife;
(2) disregarding wife's responsibility for her failure to work at
her maximum capability; and (3) failing to consider income wife
should be receiving from the equitable distribution monetary
award. 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.
As the party seeking a modification of spousal support
pursuant to Code § 20-109, husband bore the burden "to prove both
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
a material change in circumstances and that this change warrants a
modification of support." Schoenwetter v. Schoenwetter, 8 Va.
App. 601, 605, 383 S.E.2d 28, 30 (1989). "We will not disturb the
trial court's decision where it is based on an ore tenus hearing,
unless it is 'plainly wrong or without evidence to support it.'"
Furr v. Furr, 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992)
(citation omitted).
The parties were divorced by decree entered July 13, 1998.
Under the terms of the decree, husband was ordered to pay $1,750
in monthly spousal support to wife and approximately $3,900 in
monthly mortgage payments until the marital residence was sold.
After the sale of the marital home, husband's monthly spousal
support obligation automatically increased to $2,490. The home
was sold prior to July 1999. Wife also received a cash monetary
award of just under $85,000 in equitable distribution as a portion
of her share of the parties' marital assets. The trial court also
ordered husband to pay $25,000 in wife's attorney's fees. Husband
received custody of the parties' three children. The trial court
retained the case on its docket pending a hearing on husband's
request for child support and for a reduction of spousal support.
In December 1998, husband filed a petition seeking to
terminate or reduce spousal support and for child support. The
parties presented evidence in a hearing on July 28, 1999. Based
upon the evidence, the trial court refused to reduce the amount of
spousal support paid to wife, finding that wife needed "additional
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time in order to take some additional refresher courses in order
to reacquaint herself with some of the more current business
procedures." However, the trial court granted husband's motion to
impute income to wife, finding that she was capable of earning
$15,750 annually. The trial court found that wife was obligated
to pay child support to husband, and offset wife's child support
obligation by the amount of spousal support due her. Husband
objected to the trial court's order, arguing that wife was capable
of earning more income than found by the trial court.
Imputation of Income
Husband argued successfully before the trial court that it
was appropriate to impute some income to wife. "A trial court has
discretion to impute income to either or both the custodial or
noncustodial parent who is voluntarily unemployed." Bennett v.
Commonwealth ex rel. Bennett, 22 Va. App. 684, 691, 472 S.E.2d
668, 672 (1996); see Code § 20-108.1(B)(3). Evidence presented at
the hearing indicated that wife had worked prior to the parties'
separation in 1992. Husband's vocational expert testified that
wife was qualified by her past work experience in one of three
progressively higher strata. The lowest level of receptionist had
a salary range of $15,750 to $16,200. While the expert witness
testified that he reviewed the medical examination reports on
wife, he admitted that he did not address any psychological
problems which wife might have. Other evidence presented at the
hearing indicated that wife had weekly counseling for alcohol
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abuse and depression, received monthly injections for back muscle
spasms, and regularly took prescription medicine for depression.
The trial court found that the evidence supported an
imputation of $15,750 in annual income to wife, which was "the
lowest of all levels of income presented to this Court by the
[husband's] vocational rehabilitation expert citing the [wife's]
qualifications and the employment opportunities available" in the
area. Because the amount of income imputed was supported by
evidence in the record, and was not an abuse of discretion, we
affirm the trial court's decision to impute $15,750 in income to
wife.
Voluntary Unemployment
Husband also asserts that the trial court erred by failing to
place proper weight on the voluntary nature of wife's
unemployment. He argues that no evidence supported wife's claims
of physical or psychological inability to work. He points to the
testimony of the physical therapist who indicated that wife failed
to put forth the minimum effort necessary to have valid testing.
He also contends that no evidence supported the trial court's
finding that wife needed additional time to refresh her business
skills.
Wife testified that she not only continued to have a problem
with alcohol abuse, for which she received weekly counseling, but
also that she suffered from depression and chronic pain. The
trial court that heard the evidence ore tenus had the opportunity
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to weigh and evaluate the credibility of the witnesses, including
wife. While we agree with husband that there was no evidence
presented concerning wife's need to improve her job skills, other
evidence supports the trial court's finding that wife was not
currently prepared for employment. We find no error or abuse of
discretion in the trial court's determination on this issue.
Income from Monetary Award
Husband's final contention is that the trial court erred by
failing to consider interest income earned by wife from her
equitable distribution monetary award. While husband raised this
objection to the trial court's order, we find no indication that
he presented sufficient evidence in the hearing to support the
inclusion of any additional income. Husband does not refer to
evidence in the record supporting the calculations set out in his
brief on appeal. In the absence of any evidence, an assessment of
interest income would be mere speculation. Therefore, we find no
error in the trial court's failure to include interest income in
wife's monthly earnings.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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