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HATLOY v. HATLOY




NOTICE: The opinions posted here are subject to formal
revision. If you find a typographical error or other formal error, please notify
the Virginia Court of Appeals.


HATLOY

v.

HATLOY


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

v.

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.[1]For
the reasons stated, we affirm the trial court.

BACKGROUND

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
employment.[2]

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

level."

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
profits."

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

employment.

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,

i.e., $55,070.

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.

ANALYSIS

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
"voluntarily underemployed."

"Under familiar principles we view [the] evidence and all

reasonable inferences in the light most favorable to the
prevailing

party below. Where, 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) (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
the

support award. The moving party has the burden of proving a

material change by a preponderance of the evidence."
Crabtree v.

Crabtree, 17 Va. App. 81, 88, 435 S.E.2d 883, 888 (1993).
"[A]

party seeking a reduction in support payments has additional

burdens: ‘[H]e must make a full and clear disclosure relating
to his

ability to pay. He must also show that his lack of ability to
pay is

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
financial

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
not "voluntarily

underemployed."[3]

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.[4]
However,

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

support.

Affirmed.

 

FOOTNOTES:

[1]Although
mother endorsed the final order, "Seen and Agreed," and filed
objections

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).

 

[2]Mother
subsequently filed a Rule to Show Cause for father’s failure to pay child

support. This rule is not a subject of this appeal.

 

[3]Although the
word, "imputation," is used in this context, the burden of proof
remains on

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).

 

[4]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.


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