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Husband Voluntarily Underemployed, Has Imputed Income

Husband cannot demonstrate error in the trial court’s partial reduction of his spousal and child support obligations to $2,000 and $916 per month; the Court of Appeals says husband did not make full and clear disclosure of his earning capacity and is voluntarily unemployed based on applying for only four jobs in the seven months following his divorce.

The parties’ May 2009 divorce decree set husband’s monthly support obligations at $3,500 (spousal) and $1,390 (child) based on his imputed income of $16,500 per month and wife’s actual income of $4,000 per month. Defendant moved for a reduction in October 2009; the trial court heard evidence in January 2010 that two of husband’s businesses were failing to produce income; one had problems predating the divorce, the other developed difficulties due to the economic downtown and was dissolved by the Virginia State Corporation Commission.

Husband appeals the trial court’s reduction of his imputed income to $9,000 per month. He argues that imputing income requires evidence or expert testimony concerning business climate, employability and earning capacity. We disagree.

The moving party has the burden to show a material change in circumstances justifying reduction of child support. The movant must also make full and clear disclosure of earning capacity and show that neither his own voluntary act nor neglect are responsible for his lack of ability to pay.

The record shows that only the economic downturn affecting one of the businesses was a material change beyond his control. Defendant still receives income from operations outside Virginia and admitted applying only for four jobs since the divorce. His voluntary underemployment, prior employment history, business connections, language skills and income from operations in other states prevent finding an abuse of discretion in trial court’s only partially reducing his imputed income from $16,500 to $9,000 per month.

Although defendant proved a material change beyond his control, the evidence shows he is voluntarily underemployed and failed to make full and clear disclosure of his earning capacity. We affirm the decision of the trial court.

Assari v. Assari, No. 0939-10-4, (Feb. 8, 2011); Fairfax County Cir. Ct. (Williams) Fred M. Rejali for appellant, Camille N. Allan for appellee. VLW 011-7-050(UP), 6 pp.

VLW 011-7-050

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