Charlottesville Divorce Lawyer Rob Hagy

Child Support And $20,000.00 Attorneys Fee Award Upheld on Appeal.

In the case of Ponnekanti v. Ananthapadmanabhan, the Virginia Court of Appeals upheld the trial court's award of child support and attorneys to a mother.  At the time of the trial, both parties lived in Virginia. The father represented to the trial court that his current income was $130,000 per year. However, he testified that he intended to return to India and take a job earning approximately $27,000 per year. He explained that it was always his intention to return to India in order to take care of his parents. He testified that he planned to return to India regardless of whether the trial court awarded him custody of his child. The trial court determined the child support amount "going forward" would be based on father’s current income of $137,400 per year from his salary, bonus, and rental income. The trial court did not base the child support calculation on father’s possible income of $27,000 in India. The trial court concluded that father’s "taking the job at $27,000 is voluntarily under employed." The trial court also awarded mother $20,000 in attorney’s fees based on the parties’ relative incomes.

Father argued that the trial court erred by using $137,400 as his annual income for child support calculations. He contends the trial court should have first calculated child support guidelines based on his income in India and then made written findings as to why the amount was unjust or inappropriate.

"[T]here shall be a rebuttable presumption in any judicial or administrative proceeding for child support . . . that the amount of the award which would result from the application of the guidelines set out in § 20-108.2 is the correct amount of child support to be awarded." Code § 20-108.1(B).

Contrary to father’s argument, the trial court did not err in calculating child support based on his income of $137,400 because that was his income at the time of the hearing. The trial court correctly applied the child support guidelines and determined that father’s child support obligation was $911 per month.

The trial court did not deviate from the child support guidelines by using $137,400 for father’s income. On the contrary, father was asking the trial court to deviate from the child support guidelines and use $27,000 for his income because he intended to move to India, but had not yet done so.  The trial court ruled that it was not going to deviate from the child support guidelines and calculate support based on the possible job in India because if father moved and took a job earning $27,000, he would have been voluntarily underemployed.

As for the matter of attorneys fees, an award of attorney’s fees is a matter submitted to the trial court’s sound discretion and is reviewable on appeal only for an abuse of discretion.  The trial court ruled that father would pay mother $20,000 over two years for her attorney’s fees "based on the relative income of the parties." Father contends the trial court’s award of attorney’s fees was based erroneously on his annual income of $137,400, as opposed to $27,000. As stated above, the trial court did not err in concluding that husband’s income was $137,400. The trial court found that mother’s income was $72,000. Given the discrepancy between the parties’ incomes at the time of the hearing, the trial court did not abuse its discretion in awarding mother $20,000 in attorney’s fees.

-Rob Hagy, Charlottesville Divorce Lawyer



Father's Failure to Make Full Disclosure of His Earning Capacity Gives Court of Appeals A Reason Not to Find An Abuse of Discretion.

The husband in Assari v. Assari appealed the amount of a reduction in his spousal and child support obligations, contending that the amount of income imputed by the trial court was not supported by the evidence.  The Virginia Court of Appeals affirmed the trial court’s decision, ruling that it could not say on appeal that the trial court had abused its discretion given the nature of the evidence presented below.  Not only had the evidence presented been complex (with the husband’s earning capacity reduced partly due to factors beyond his control, and partly due to his own voluntary underemployment). Evidence was also presented that the husband had failed to make a full disclosure as to his earning capacity.

 

Larger Income Constitutes Material Change of Circumstance-Justifies Child Support Increase; Daycare Expenses Awarded

In the case of Stevens v. Stevens, the Circuit Court for Loudoun County, ruled that father's salary increase from approximately $90,000.00 to over $100,000.00 a year constitutes a material change of circumstance and awards mother more child support where mother's income had decreased and mother had child 115 days each year. The increase is awarded even though an expert testified on behalf of father that mother could make an additional 10,000 to 20,000 in imputed income.

The father asked for a deviation from the presumptive amount of child support set by the guidelines for three reasons: the imputed income to mother; that mother did not actually pay the day case expenses ($757.00) a month; and that father did not think son needed to be in the day care he was attending.

The court ruled that it would not deviate from the presumptive amount based upon the day care situation.  The parties had previously agreed on daycare at this daycare facility when it cost more to attend.  Father withdrew son based upon a series of disagreements with the daycare facility of tuition costs, lack of transportation from school to daycare, and the quality of the program provided.  But, the child was doing well at the daycare and mother could transport the child to daycare because of her flexible work hours.

This case is interesting because the judge offers some insight on the reasonableness of a specific type of work-related child care. The judge equated the analysis to that for determine whether private school costs should be taken into account in a child support proceeding.  In that situation, two conditions must exist: a demonstrated need coupled with the parents ability to pay.  In addition, the court must determine whether the child care is quality care from a licensed source pursuant to Virginia Code Section 20-108.2(F).  In this case, all three factors were present.

The court declined to inpute income because the father failed to present evidence of a means to cover child care costs of the mother took a higher paying job.  Father countered this by arguing that his new wife could preovide daycare.  The court declined to accept this approach, stating that child care by a step parent is not a good idea unless both parents agree.  Mother didn't agree.

Income Properly Imputed To Husband in Divorce Proceeding for Spousal Support Purposes

In the case of Sandhir v. Ahuja-Sandhir, the Virginia Court of Appeals, in an unpublished decision ruled that the trial court did not err in imputing income to husband, a physician, for purposes of determining spousal support and in denying appellant’s request for spousal support.  Even though husband hadn't made more than $85,000.00 a year (approximately) during the marriage, and was unemployed, at the time of the hearing, the court imputed income at a level of $125,000.00 a year.  Expert testimony put on by the wife set the amount.

Review of the Winter 2005 Edition of the Family Law Quarterly

I just finished reading the Winter Edition of the Family Law Quarterly (the "FLQ"), published by the Family Law Section of the American Bar Association.  It contained an article critiquing "Parental Alienation Syndrome" by Dr. Janet R. Johnston, a professor of justice studies at San Jose University called "Children of Divorce Who Reject a Parent and Refuse Visitation: Recent Research and Social Policy Implications for the Alienated Child".  It also provided a Review of the Year in Family Law which was dominated by the issue of same-sex marriage.  Lastly, the FLQ provided a case digest of significant cases from all fifty states.  Eleven Virginia cases made the case digest on a variety of topics.  Here are the cases.

In Newman v. Newman, the Virginia Court of Appeals held that counsel for parties can sign an agreement for their clients and that there is nothing invalid or nonbinding about a consent order signed by counsel. 

In Baldwin v. Baldwin, the Virginia Court of Appeals held that a Virginia Code amendment would not apply to all agreements or orders in cases regardless of age because such an application would impair the sacred obligation of contracts.

In Kane v. Szymczak, the Virginia Court of Appeals ruled a trial judge erred in making a custody and visitation decision that simply enumerated the numbered statutory factors the judge utilized in rendering the decision.  That was not "communcating the basis for the decision" as required by Virginia Code Section 20-124.3.

In Roberts v. Roberts, the Virginia Court of Appeals ruled that a trial judge did not violate a father's constitutional rights by reducing his in person visitation to a thirty minute telephone call once a week where the reduction was due to his excessively purtannical conduct.

In Sullivan v. Jones, the Virginia Court of Appeals ruled that a reversal of a prior order allowing a relocation did not act as res judicatea and trump the change in circumstances test so a mother could still petition for visitation and ask for a relocation which was permitted.

In Wheeler v. Wheeler, the Virginia Court of Appeals ruled that a reolcation by a mother to Florida was in the best interests of the child since such relocation would improve mother's deteriorating economic conditions, provide financial security, and would allow children to live with primary caregiver who could stay at home where Father's relationship would not suffer due to relocation.

In Hodges v. Commonwealth, the Virginia Court of Appeals held that holds that food stamps and Medicaid assistance were not “public assistance moneys” as contemplated in Code Section 63.2-1908; and that the legislature did not exempt noncustodial parents receiving those forms of public assistance from reimbursing DCSE for moneys expended on behalf of their children.

In Hatloy v. Hatloy, the Virginia Court of Appeals held that a father was entitled to a reduction in child support even though father was making $55,000.00 plus 2x that in stock options where he was laid off due to economic downturn.

In Princiotto v. Gorell, the Virginia Court of Appeals held that a father could pay bills directly to third party suppliers instead of paying the mother child support where strong and conclusive proof showed mother was financiall irresponsible and the child support money would not be used for the children's benefit.

In Spero v. Heath, the Virginia Supreme Court held the trial court properly refused to grant father's petition for name change after genetic testing showed that father was indeed the child's father. 

In Hoebelheinrich v. Hoebelheinrich, the Virginia Supreme Court held that it was proper for the trial judge to appoint the wife's expert to give an opinion on valuation of the husband's medical practice and then to follow the appointed expert's opinion, since the husband had been invited to suggest experts and failed to do so.

 

 

Husband Fails to Impute Income to Wife

In the unpublished opinion Brown v. Brown, the Virginia Court of Appeals upheld trial court ruling that husband failed in his burden of proving that wife, who was a realtor, was underemployed in an effort to imput income to her to reduce his spousal support obligation where husband failed to call any local realtors to testify about the real estate market, failed to call anyone from wife's real estate firm to testify about the typical salaries earned by other agents, and failed to put on any evidence that wife did not work full time.

-Rob Hagy, Virginia Family and Divorce Lawyer