Domestic Relations – Spousal Support – Imputed Income

Although husband, who deserted the parties’ 22-year marriage, presented evidence wife could earn as much as $13,000 per year, the Court of Appeals saysthe divorce court did not err in declining to impute income to wife, who suffered from a congenital heart condition, had only a high-school education and had not worked outside the home during the parties’ marriage.

Husband, a self-employed optometrist with substantial earnings, argues the trial court erred as a matter of law in failing to impute income to wife given the “uncontested” evidence of her earning capacity of at least $13,000. Underlying husband’s argument is the presupposition that, absent exceptional circumstances, every stay-at-home spouse seeking spousal support must start work outside the home immediately upon the entry of the divorce decree if he or she has any provable income earning capacity. We find no basis for such an inflexible principle in our statutes or case law.

Husband argues that notwithstanding the discretionary factors in Va. Code § 20-107.1(E), our case law has tightly synthesized these principles into a statutory preset requiring imputation of income to a spouse seeking support if he or she has provable earning capacity at the time of the divorce. He cites Srinivasan v. Srinivasan, 10 Va. App. 728 (1990), for the proposition that a spouse has a presumptive duty to go to work following a divorce if he or she had provable earning capacity.

Neither Srinivasan nor any other Virginia case has held that, for purposes of calculating spousal support, a stay-at-home spouse capable of working must go to work immediately after the divorce trial or face a judicially imposed imputation of income. To the contrary, Virginia cases imputing income all involved spouses who worked during the marriage but, sometime after separation, either accepted a job beneath their earning capacity or stopped working altogether.

In this case, the trial court heard evidence on many of the Code § 20-107.1(E) factors as it applied to this marriage of nearly 25 years. Except for a brief period when wife helped husband at his office, wife had been a stay-at-home mother of two children based upon an understanding she and husband had during the marriage. At the time of the divorce trial, her youngest boy was finishing high school and she wanted to stay home until he left for college. Also, while not incapable of working outside the home, wife suffers with a congenital heart condition counseling caution and the need to avoid “at risk” employments. Added to these concerns is the fact that her formal education went no further than a high school degree.

Based upon this evidence, the trial court held it would not be equitable to impute income to wife “at this time.” In doing so, the trial court carefully limited its ruling to the conditions existing at the time of the final divorce decree, leaving open the possibility of recalibrating the support award at some later date as conditions change.

We affirm the trial court decision to award spousal support without imputing income to wife.

The trial court also did not err in accepting the valuation of husband’s income offered by wife’s expert, who excluded the sums husband gave as gifts to his two children, as “wages” paid by his subchapter S corporation. No evidence suggested the children were bona fide employees or that they earned the “wages” husband deducted as a business expense. The trial court had no obligation to base its spousal support calculation in any way upon husband’s unconventional accounting practices.

We grant in part wife’s request for attorney’s fees incurred on appeal. We view husband’s argument challenging the calculation of his income as wholly meritless, but we deny attorney’s fees on the imputation of income issue.

Affirmed and remanded.

Brandau v. Brandau (Kelsey, J.) No. 2723-07-3, Sept. 16, 2008; Pulaski County Cir.Ct. (Turk) Frank W. Rogers III for appellant; John S. Huntington for appellee. VLW 008-7-411, 10 pp.