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COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, McClanahan and Senior Judge Coleman
Argued at Richmond, Virginia
Record No. 3306-02-4
GEORGIA MICHELE HATLOY
MATTHEW DAVID HATLOY
OPINION BY JUDGE ROBERT P. FRANK
NOVEMBER 12, 2003
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jonathan C. Thacher, Judge
Thomas P. Sotelo (Keegan & Sotelo, on brief), for appellant.
No brief or argument for appellee.
Georgia M. Hatloy (mother) appeals the trial court’s decision
to reduce child support
payments owed by Matthew D. Hatloy (father). She argues the
court did not impute a proper level
of income to father.For
the reasons stated, we affirm the trial court.
On March 6, 2001, the parties were divorced, and father was
ordered to pay $2,308 per
month for child support. On January 17, 2002, father filed a
Motion for Reduction of Child
Support, contending he was involuntarily terminated from his
employment at America OnLine
(AOL) and had no income, despite his efforts to obtain suitable
At the hearing on the motion for reduction of child support,
father testified he was
terminated from his employment with AOL in November 2001. At the
time of his termination,
father earned $55,070 per year plus stock options, for an annual
salary of $117,425.75. After his
termination, he received severance pay and compensation for his
unused vacation time. He also
cashed in his stock options and received an inheritance of
$10,000. Father paid, at most, $2,500 in
child support after his termination from AOL.
Father is a high school graduate, but does not have a college
degree. Prior to his AOL
employment, father had numerous jobs in the "hospitality
industry." At a Ramada Inn, he was a
"front-office manager," earning $8.50 per hour. He
also worked as a "bellman, customer service" at
a Holiday Inn, earning $5.00 per hour. He once worked at a Home
Depot in the customer service
department, earning $9.50 per hour.
Upon his termination from AOL, father traveled to a number of
states seeking employment
in the "high-tech industry." His quest was futile.
Father testified, "And I have a stack of rejection
letters from employers in Chicago, St. Louis, Washington. I
mean, I really did make an extreme
effort and spent about every dollar I had in savings trying to
secure future employment." He
indicated, "Right now, the high-tech field is still
extremely volatile, and there are no jobs, or the
ones that I am competing for they really want a college degree,
and usually it is at the masters
At the time of the hearing, father was an employee/partner at
Pine Creek Pub, a seasonal
recreational resort. He characterized this position as
"returning to an industry that I have the
training to be successful at." He claimed the work was
"something I have always wanted to do."
He explained his salary would be based on "our
The pub lost money during the previous summer, consequently,
father drew no salary.
However, he indicated he soon would begin drawing a salary of
$1,000 per month. Father further
testified he would begin earning an additional $500 to $600 per
month as a "guide" at the resort.
On cross-examination, father admitted he had not sought
employment in the "hospitality
industry," other than one unsuccessful effort at a Holiday
Inn and the successful effort with Pine
Creek Pub. Since he began his relationship with the pub, father
had not sought any other
During her argument opposing father’s motion for reduced child
support, mother conceded
that a material change in circumstances had occurred and that
father lost his job "through no fault of
his own." However, mother contended father had not used
good faith efforts to find suitable
employment, and she asked the trial court to impute to father
the amount of his base salary at AOL,
The trial court imputed to father a gross income of $1,600 per
month and reduced his
monthly child support payment to $921, effective July 1, 2002.
This appeal ensued.
Mother contends father failed to meet his burden to show
"that he was earning as much
income as is reasonable under the circumstances" and that
the trial court erred in not imputing
$55,070 of income to father. Essentially, mother contends he is
"Under familiar principles we view [the] evidence and all
reasonable inferences in the light most favorable to the
party below. Where, as here, the court hears the evidence ore
tenus, its finding is entitled to great weight and will not
disturbed on appeal unless plainly wrong or without evidence to
Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630,
631 (1988) (citing Martin v.
Pittsylvania County Dep’t of Soc. Servs., 3 Va. App. 15, 20,
348 S.E.2d 13, 16 (1986)).
This case arose after the original divorce and child support
order was entered. The
standard of proof and burdens in such circumstances are clear.
"Once a child support award has been entered, only a
showing of a
material change in circumstances will justify modification of
support award. The moving party has the burden of proving a
material change by a preponderance of the evidence."
Crabtree, 17 Va. App. 81, 88, 435 S.E.2d 883, 888 (1993).
party seeking a reduction in support payments has additional
burdens: ‘[H]e must make a full and clear disclosure relating
ability to pay. He must also show that his lack of ability to
not due to his own voluntary act or because of his neglect.’"
Edwards v. Lowry, 232 Va. 110, 112-13, 348 S.E.2d 259, 261
(1986) (emphasis added) (quoting Hammers v. Hammers, 216 Va.
30, 31-32, 216 S.E.2d 20, 21 (1975)). Thus, in order to prove a
material change in circumstances that justifies a reduction in
support, a parent "must establish that he is not ‘voluntarily
unemployed or voluntarily under employed.’" Antonelli v.
Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119 (1991) (quoting
Code ? 20-108.1(B)(3)).
Virginia Dep’t of Soc. Servs. v. Ewing, 22 Va. App. 466, 470,
470 S.E.2d 608, 610 (1996).
Since mother concedes that a material change occurred in father’s
circumstances and that he was terminated at AOL through no fault
of his own, we must
determine whether father met his burden to establish that he was
The trial court found "a lack of effort" by father,
who had "[a] lot of cash [pass] through
[his] hands" after he was terminated by AOL. The court
imputed income of $1,600 per month or
$19,200 per year, retroactive to July 1, 2002. While the trial
court did not articulate how it
arrived at this amount, the record clearly indicates the trial
court accepted husband’s testimony
that he received no income from the pub, but expected to begin
earning $1,000 per month from
the resort and an additional $600 per month from his work as a
"guide." The trial court
apparently also accepted father’s testimony that, because of
his educational background, he could
not find employment in the "high-tech industry."
Mother did not refute father’s testimony that no jobs were
available in the "high-tech
industry." She did not present evidence that work in the
"hospitality industry" would pay father
more than $1,600 per month. The only evidence on these issues
was presented in father’s
testimony. He testified he had earned $10,400 annually from
Holiday Inn, $17,860 annually
from Ramada, and $19,760 annually from Home Depot. Assuming a
job was available at Home
Depot, father’s current imputed pay is comparable.
Mother attacks father’s credibility by pointing to his failure
to present evidence
documenting his efforts to seek employment and his inconsistent
testimony at the hearing. She
argues he never produced the "stack of rejection
letters" that he claimed he received.
her arguments ignore the fact that father’s testimony was
evidence before the fact finder.
Therefore, while these arguments go to the weight of the
evidence, they do not suggest a
complete lack of evidence to support the trial court’s
decision. It is well established that the
credibility of witnesses and the weight accorded their testimony
are matters solely within the
purview of the trial court, and its findings will be reversed on
appeal only if "plainly wrong or
without evidence to support them." Wyatt v. Virginia Dep’t
of Soc. Servs., 11 Va. App. 225,
230, 397 S.E.2d 412, 415 (1990).
Here, the trial court accepted father’s explanation of his
efforts to seek comparable
employment in the "high-tech industry" and of his
income at the pub. We find no error in the
trial court’s acceptance of father’s testimony and its
imputation of $1,600 per month in income,
rather than the amount previously earned from AOL.
We conclude the evidence supports the trial court’s decision
to reduce the award of child
mother endorsed the final order, "Seen and Agreed," and filed
more than twenty-one days after entry of the final order, see
Rule 1:1, she preserved the issue for
appeal by arguing throughout the hearing that income should be
imputed to father based on his
previous salary at America OnLine. See Weidman v. Babcock, 241
Va. 40, 44, 400 S.E.2d 164,
167-68 (1991) (noting that objections made during a hearing can
preserve an issue for appeal).
subsequently filed a Rule to Show Cause for father’s failure to pay child
support. This rule is not a subject of this appeal.
word, "imputation," is used in this context, the burden of proof
husband, not on wife who is arguing for imputation, unlike cases
asking for imputed income at
the time of the initial award. Here, the trial court had
previously set an amount of support, based
on husband’s then-salary from AOL. Thus, wife’s request for
imputation is basically an
argument in support of continuing the initial award. Husband, on
the other hand, is asking the
court to reduce the previously set support amount. In meeting
his burden on the motion to
reduce the awarded support, husband must prove, among other
issues, that he should not have his
previous income from AOL imputed to him. Compare Mansfield v.
Taylor, 24 Va. App. 108,
480 S.E.2d 752 (1997) (finding a trial court erred in granting a
father’s motion to reduce the
child support award and failing to impute income to him), and
Niemiec v. Virginia Dep’t of Soc.
Servs., 27 Va. App. 446, 499 S.E.2d 576 (1998) (explaining the
burden of proof when a party
asks a trial court to impute income at the time of an initial
award of child support).
At one point
father testified he had the stack of rejection letters at home, then on
cross-examination he said he believed he threw the letters away.