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Wife could earn income, her expert said

A former child psychiatrist may see her $3,000 monthly spousal support adjusted on remand, based on the divorce judge’s failure to impute income to her, in an Aug. 5 decision by the Virginia Court of Appeals. The twist in Campbell v. Campbell is that the trial judge erred in ignoring testimony about the wife’s earning potential from her own expert.

The wife left her South Carolina medical practice when she became pregnant with the first of the couple’s two children. Her husband had practiced as a neurosurgeon during the parties’ marriage, but he became permanently disabled from a rare tropical disease.

The couple had life insurance policies with cash value, and the husband received nearly $15,000 monthly from private disability insurance as well as $2,047 in monthly social security disability income.

Three years before the parties separated, the wife started her own interior design firm, but it generated only “negligible” income, according to Isle of Wight County Circuit Judge Rodham T. Delk.

The husband’s vocational expert thought it was not impossible for the wife to obtain a Virginia medical license, but Delk was entitled to reject that testimony, the appeals court said.

What he could not do, was ignore the testimony of the wife’s expert, according to the court’s unpublished opinion in Campbell.

According to her expert’s undisputed testimony, the wife could earn at least $40,000 to $60,000 a year as a high school teacher, a pharmaceutical sales person or as a community college professor, based on her existing training and education.

Saying that it was “speculative at best” to expect the wife to earn more money than she made from her interior design business was “plainly wrong,” wrote Judge Randolph A. Beales.

The Campbell case was different from Brandau v. Brandau, which rejected an argument that a stay-home spouse had to hit the labor market immediately after divorce or face imputed income, according to Beales.

In this case, the wife previously had practiced medicine and had begun her own business while still married. The husband’s declining health meant he could not work at all, but the wife was in good health and had employment options other than a return to medical practice.

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