Will a Virginia divorce court impute a minimum wage income to a stay-at-home mother living beyond her means on credit? Yes, according to Huston v. Huston, Record No. 2808-09-4, http://www.courts.state.va.us/opinions/opncavwp/2808094.pdf , an unpublished Virginia Court of Appeals case affirming the ruling of the Virginia Circuit Court judge who held that such an imputation of income could fairly be made to the mother due to her ability to bring in a full-time income. In this case, the mother appealed from a final divorce decree in which the trial court granted the father legal and physical custody of one of the parties' sons. In her appeal, the mother argued that the trial court erred in three ways: (1) by denying her an impartial de novo standard of review on appeal; (2) conducting an in camera interview with the parties' minor child without the presence of a court reporter; and (3) by imputing income despite the fact she was a stay-at-home mother for 26 years. Upon reviewing the record, the Virginia Court of Appeals held that the trial court did not err in its decisions and affirmed its ruling on these issues. The parties married on January 25, 1982, separated on September 1, 2007, and later divorced in December of 2009. During the period of their marriage, the parties had eight children, three of whom were minors at the time of separation. In July of 2007, Jacob, one of the parties' adult sons, filed for custody and visitation of L, one of the minor children. The mother filed for custody, visitation, and support of the other two minor children, J. and T.. The Virginia Juvenile and Domestic Relations District Court (JDR Court) issued an order that granted the father legal and physical custody of J. and legal and physical custody of T. to the mother. After establishing a visitation schedule for both the mother and father, the Court dismissed Jacob's petitions with prejudice. After the Juvenile and Domestic Relations District Court's ruling, the mother filed a divorce complaint and made a motion for pendente lite relief (an agreement or court order made while a matter, such as the parties' divorce in this case, is pending). Upon agreement by both parties, the Court consolidated both the divorce action and the mother's appeal of the Juvenile and Domestic Relations District Court's ruling. Following a two-day pendente lite hearing, the trial court issued a memorandum and a letter opinion that it incorporated into the final order. In the final order, the trial court adopted all of the orders entered by the Juvenile and Domestic Relations District Court and noted that the only remaining issue between the parties' involved the minor child J's custody. Because the parties agreed that T. would remain with the mother and L. would remain with the father, the trial court stated that Jacob (the adult son) was no longer a party to the proceedings. During the final hearing on the issue, the Virginia Circuit Court heard the evidence of the parties and J's in camera testimony, the trial court granted custody of L. and J. to father and custody of T. to mother. The father argued the mother's appeal should fail because the court did not have jurisdiction when the mother failed to notify Jacob of the appeal. However, as the court noted, this argument did not succeed because the trial court had issued a final order stating that Jacob would not longer be party to the proceedings, and neither party appealed that order dismissing Jacob's appeal. Upon dismissal, Jacob was no longer a party and the mother was not required to notify him of her appeal to the Virginia Court of Appeals. In the second issue, the mother argued that the trial court improperly denied her an impartial de novo standard of review. The father asserted that the mother did not preserve the issue for appeal by objecting contemporaneously. As the Court noted, it cannot consider a claim of trial court error as a grounds for reversal "where no timely objection was made, except to attain the ends of justice." Marshall v. Commonwealth, 26 Va.App. 627, 496 S.E.2d 120 (1998) http://scholar.google.com/scholar_case?case=17934743883065283312&q=Marshall+v.+Commonwealth,+26+Va.App.+627,+496+S.E.2d+120+(1998)&hl=en&as_sdt=80000000000002. The Virginia Court of Appeals noted that the mother's appeal on this issue could not succeed, because the trial court reviewed the JDR court's opinion, and the trial court stated that it reached its own conclusions. Because the trial court made its own consideration, held a two-day pendente lite hearing, and the mother was allowed to put on her evidence, the mother had not been denied an impartial de novo standard of review, despite the divorce court judge's recitation of the holding and reasoning from the Juvenile and Domestic Relations District Court judge. The key issue in this case, however, involved the mother's argument that the trial court erred in imputing income to her. Income can be imputed to a party under Virginia Code Section 20-108.1(B)(3), http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-108.1 , to deviate from the presumptively correct amount of child support calculated according to the guidelines. In Huston, the trial court imputed income at a rate of $7.25 per hour (minimum wage) for forty hours per work, for a total of $1250 per month. The Warren County Circuit Court noted the standard for imputation of income in its decision. In setting or modifying spousal or child support, a court may impute income to a party voluntarily unemployed or underemployed. See Calvert v. Calvert, 18 Va. App. 781, 447 S.E.2d 875 (1994) http://scholar.google.com/scholar_case?case=4745286897498662381&q=Calvert+v.+Calvert,+18+Va.+App.+781,+447+S.E.2d+875+(1994)&hl=en&as_sdt=80000000000002. Whether a person is voluntarily unemployed or underemployed is a factual determination. In evaluating a request to impute income, the trial court must 'consider the [parties'] earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities of the parents and the children." Niemiec v. Commonwealth, 27 Va. App. 446, 499 S.E.2d 576 (1998) http://scholar.google.com/scholar_case?case=17335898669564349170&q=Niemiec+v.+Commonwealth,+27+Va.+App.+446,+499+S.E.2d+576+(1998).+&hl=en&as_sdt=80000000000002. In considering the issue, the Court established that the mother had been a stay-at-home mother throughout the marriage, during which time she homeschooled all of their eight children. Moreover, the Court found that this decision was mutual, based on the number of children the parties had. As the children grew up and the parties separated, however, the mother stubbornly insisted on staying at home, relying on credit to pay bills and make ends meet. The Circuit Court judge stated, "Reality must set in. She must become gainfully employed and contribute to her own support." The wife put on evidence that she had served as a child care provider briefly in 2007, a position in which she earned $8.50 per hour. In addition, she testified that she was in the process of becoming a certified reading specialist for dyslexic children. Initially, she anticipated an income of $20 per hour, and after receiving certification, she estimated $40 per hour for her services. In the meantime, she had been earning approximately $300 per month for various small jobs. The Virginia Court of Appeals noted that the record indicated that the mother had a high school education, was in the process of obtaining certification, only home-schooling one child, and had the ability to earn money. Therefore, the appellate court held that the trial court did not err by imputing income to the mother. You should consult with your Virginia family law lawyer concerning the possibility of imputing income to a parent in your child support matter.
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