Sargent v. Sargent

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Fitzpatrick

Argued at Alexandria, Virginia

GARY SARGENT

v. Record No. 1981-94-4 OPINION BY

JUDGE JOHANNA L. FITZPATRICK

PATRICIA VAUGHT SARGENT AUGUST 22, 1995

FROM THE CIRCUIT COURT OF FREDERICK COUNTY

James L. Berry, Judge

Peter W. Buchbauer (Douglas M. Swift, Jr.; James J.

McGuire; Swift & Buchbauer, P.C., on briefs), for

appellant.

Mark A. Vann (Thomas J. Chasler; Chasler, Adrian and

Bowman, P.L.C., on brief), for appellee.

Gary Sargent (husband) appeals the trial court's decisions

on custody, support, and grounds of divorce. He contends that

the trial court erred in: (1) failing to give adequate

consideration to the desire of the parties' son, Matthew, to live

with his father and awarding custody of Matthew to Patricia

Vaught Sargent (wife); (2) failing to impute income to wife in

determining child and spousal support; (3) refusing to include an

earned income tax credit and pendente lite spousal support in

wife's income for purposes of computing child and spousal

support; (4) awarding wife a divorce based on separation for more

than one year; and (5) failing to consider wife's desertion when

awarding spousal support. Finding no error, we affirm the trial

court on all issues.

BACKGROUND

The parties were married on March 6, 1976. They had two

children, Dustin, born August 16, 1981, and Matthew, born May 16,

1985. On July 9, 1993, wife filed for divorce on the ground of

cruelty, and on July 12, 1993, she left the marital home.

Husband filed for divorce on the ground of desertion on July 26,

1993. 1

On July 27, 1993, the court appointed a guardian ad litem

for the two children in connection with the divorce proceeding.

The guardian filed a report on August 2, 1993 in anticipation of

the pendente lite hearing scheduled for August 4, 1993,

recommending that Dustin remain with his father and Matthew

remain with his mother. In an August 11, 1993 pendente lite

order, the court placed the children in the joint custody of the

parties, with husband having primary care of Dustin and wife

having primary care of Matthew. The August 11, 1993 order also

provided for payment of temporary spousal and child support by

husband.

At a July 29, 1994 final hearing, several witnesses,

including wife, testified that Matthew preferred to live with his

father. The guardian ad litem relied on her second, detailed

report filed July 14, 1994, in which she stated:

[Matt] expressed the wish that he live with

his father, and the guardian is under the

impression that Matt feels that if he lives

with him he will have more time to play with

his cousins (who live nearby) and Dustin.

* * * * * * *

1

The record in this case was a written statement of facts

pursuant to Rule 5A:8(c).

2

Despite Matt's verbalized preference, the

guardian recommends that Matt remain in the

physical custody of Mrs. Sargent. The

guardian feels that Matt is doing well in her

custody now and that many of Matt's reasons

about living in his father's house can be

addressed by expanding visitation,

particularly in the summer. In addition, it

is troubling to the guardian that Dustin

harbors much resentment towards his mother,

and the guardian feels that there is a chance

that Matt could also formulate similar

resentment if he lived primarily with Dustin

and his father.

Wife testified that Matthew received good grades, A's and B's,

and that her work schedule allowed her to spend considerable time

with Matthew after school. She also noted that Dustin's grades

were not as good, and she felt this was because his father did

not spend enough time with him after school. Matthew's classroom

aide and wife's sister testified that Matthew and his mother had

a good relationship and that wife was a good mother to Matthew.

The parties stipulated that husband's current salary was

$4,025 per month and wife's current salary was $754.96 per month.

The evidence established that, when the parties first married in

1976, wife was a factory worker and earned over $11,600 in 1980.

Wife has a high school education. Husband also worked in a

factory full-time and attended college at night, obtaining his

degree in about eight years. In 1983, at husband's request, wife

stayed home to care for Dustin and the household. Except for a

brief return to factory work, wife was a homemaker until 1990,

when she became a teacher's aide at Matthew's school. As a

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teacher's aide, wife works 182 days per year, seven hours per

day. At the hearing, husband testified that he believed that

wife could earn $22,000 if she returned to the full-time factory

work that she performed in the early years of the marriage. He

also presented evidence showing that wife would be entitled to an

earned income tax credit of $1434 if she had custody of Matthew.

Wife testified that she felt it was in Matthew's best interests

that she continue working as a teacher's aide and that a factory

job would entail irregular hours and child care expenses.

In the divorce decree of July 29, 1994, the trial court:

(1) awarded wife a divorce on the ground of separation for more

than one year pursuant to Code § 20-91(9)(a); (2) allowed wife to

retain physical custody of Matthew; (3) refused to impute

additional income to wife when computing child and spousal

support; and (4) awarded wife spousal support. Husband appeals

each of these findings.

CUSTODY OF MATTHEW

Husband argues that the trial court erred in failing to

consider adequately Matthew's preference to live with him. See

Code § 20-124.3(7). We disagree.

Code § 20-124.2(B) requires that, "[i]n determining custody,

the court shall give primary consideration to the best interests

of the child." The court must consider the factors in Code

§ 20-124.3 in deciding what custody arrangement is in the child's

best interests, including:

1. The age and physical and mental

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condition of the child, giving due

consideration to the child's changing

developmental needs;

2. The age and physical and mental

condition of each parent;

3. The relationship existing

between each parent and

each child, giving due

consideration to the

positive involvement with

the child's life, the

ability to accurately

assess and meet the

emotional, intellectual

and physical needs of the

child; 4. The needs of

the child, giving due

consideration to other

important relationships

of the child, including

but not limited to

siblings, peers and

extended family members;

5. The role which each parent has played

and will play in the future, in the

upbringing and care of the child;

6. The propensity of each parent to

actively support the child's contact and

relationship with the other parent, the

relative willingness and demonstrated ability

of each parent to maintain a close and

continuing relationship with the child, and

the ability of each parent to cooperate in

matters affecting the child;

7. The reasonable preference of the

child, if the court deems the child to be of

reasonable intelligence, understanding, age

and experience to express such a preference;

8. Any history of family abuse as that

term is defined in § 16.1-228; and

9. Such other factors as the court deems

necessary and proper to the determination.

(Emphasis added). Although a child's preference "should be

considered and given appropriate weight," it does not control the

custody determination and is just one factor to be considered.

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Bailes v. Sours, 231 Va. 96, 99, 340 S.E.2d 824, 826 (1986). As

long as the trial court examines the factors, it is not "required

to quantify or elaborate exactly what weight or consideration it

has given to each of the statutory factors." Woolley v. Woolley,

3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986).

In the divorce decree, the trial court stated: "[T]he Court

has considered the factors set out in Section 20-124.3 of the

Code of Virginia . . . . [Wife] has prevailed on Factors 3, 5 and

6. The Court is of the opinion that Matthew is not of sufficient

age to express a preference." The court was presented with

uncontroverted evidence from several sources that Matthew, who

was nine at the time of the hearing, preferred to live with his

father. The guardian ad litem recommended that Matthew remain in

the physical custody of his mother after personally meeting with

him on several occasions and determining his wish that he live

with his father so that he could play with his brother and

cousins more frequently. The trial court was fully apprised of

the child's wishes but specifically found that Matthew was not of

sufficient age to decide with whom he should live and that other

factors favored the mother retaining custody. The record proved

that Matthew was nine years of age. Moreover, the record

contains evidence from which the trial judge could have concluded

that factors 3, 5, and 6 outweighed other considerations.

Matthew's preference to live with his father was but one

consideration for the trial judge and did not control the

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determination of which placement would be in Matthew's best

interests. We hold that the trial court properly considered the

statutory factors and awarded custody of Matthew to wife.

SUPPORT

(1) IMPUTATION OF INCOME

Husband next argues that the trial court erred in refusing

to impute income to wife when determining both child and spousal

support. The trial court awarded wife child support based on the

child support guidelines of Code § 20-108.2 and refused to impute

additional income to wife in calculating the amount. The court

also awarded wife spousal support after it considered all of the

factors listed in Code § 20-107.1. We recognize that decisions

concerning both child and spousal "support rest within the sound

discretion of the trial court and will not be reversed on appeal

unless plainly wrong or unsupported by the evidence." Calvert v.

Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875, 876 (1994).

A trial court may impute income to the spouse receiving

child or spousal support under appropriate circumstances. See

Code § 20-108.1(B)(3) (child support); Srinivasan v. Srinivasan,

10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990) (spousal

support). In child support cases, Code § 20-108.1 provides a

rebuttable presumption that the amount of child support indicated

by the guidelines contained in Code § 20-108.2 is the correct

support amount. See Barnhill v. Brooks, 15 Va. App. 696, 699,

427 S.E.2d 209, 212 (1993). A court must consider the factors in

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Code § 20-108.1(B) in deciding whether to deviate from the

presumptive amount. These factors include "[i]mputed income to a

party who is voluntarily unemployed or under employed." Code

§ 20-108.1(B)(3). Any child support award must be based on

circumstances existing at the time the award is made. Payne v.

Payne, 5 Va. App. 359, 364, 363 S.E.2d 428, 431 (1987).

In determining spousal support, the trial court must

consider the earning capacity of the parties. Code

§ 20-107.1(1).

The party seeking spousal support must earn

as much as he or she reasonably can to reduce

the amount of the support needed, and may not

choose a low-paying position that penalizes

the other spouse. Under appropriate

circumstances, a court may impute income to

the party seeking spousal support.

Konefal v. Konefal, 18 Va. App. 612, 614, 446 S.E.2d 153, 154

(1994) (citation omitted) (emphasis added).

The record established that wife had a monthly shortfall of

over $900 and showed her need for both spousal and child support.

Husband had the ability to pay support. However, he argues that

wife's job as a teacher's aide resulted in a voluntary cut in pay

from the factory job that wife held when the parties were first

married, and as such, wife was not utilizing her full earning

capacity. Wife testified that a factory job, if available, would

involve irregular hours and additional child care expenses. As a

teacher's aide with hours similar to Matthew's school hours, she

could spend time with Matthew after school and did not have to

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pay for child care.

The only evidence of wife's potential earnings in a factory

job was husband's opinion that she could earn $22,000. No

evidence was presented about the availability of a factory

position or the hours or shifts that would be required.

Additionally, wife's most recent work experience during the past

four years was as a teacher's aide. Imputation of income is

within the trial judge's discretion and is just one factor to be

considered in setting child and spousal support amounts. In this

case, credible reasons supported the trial judge's decision that

imputation of income was not appropriate, and no abuse of

discretion occurred.

(2) INCLUSION OF TAX CREDIT AND PENDENTE LITE SUPPORT

Husband contends that, in calculating wife's income for

support analysis, the trial court should have included: (1) an

earned income tax credit of $1434, and (2) the spousal support

under the preexisting pendente lite order.

Code § 20-108.2(C) provides the definition of "gross income"

for purposes of the child support statute:

For purposes of this section, "gross

income" shall mean all income from all

sources, and shall include, but not be

limited to, income from salaries, wages,

commissions, royalties, bonuses, dividends,

severance pay, pensions, interest, trust

income, annuities, capital gains, social

security benefits except as listed below,

workers' compensation benefits, unemployment

insurance benefits, disability insurance

benefits, veterans' benefits, spousal

support, rental income, gifts, prizes or

awards. Gross income shall be subject to

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deduction of reasonable business expenses for

persons with income from self-employment, a

partnership, or a closely held business.

"Gross income" shall not include benefits

from public assistance programs as defined in

§ 63.1-87, federal supplemental security

income benefits, or child support received.

For purposes of this subsection, spousal

support included in gross income shall be

limited to spousal support paid pursuant to a

pre-existing order or written agreement and

spousal support shall be deducted from the

gross income of the payor when paid pursuant

to a pre-existing order or written agreement

between the parties to the present

proceeding.

(Emphasis added).

Husband argues that the trial court was required to include

a $1434 earned income tax credit as income. We disagree.

Potential tax benefits are not listed as part of gross income

under Code § 20-108.2. Moreover, the trial court did not err in

failing to accept husband's calculations of the potential value

of the tax credit in wife's future income tax filings.

Husband's contention that wife's pendente lite spousal

support award also must be used in computing future child support

is without merit. Code § 20-103(A) provides for pendente lite

support:

In suits for divorce, annulment and separate

maintenance, and in proceedings arising under

subdivision A 3 or L of § 16.1-241, the court

having jurisdiction of the matter may, at any

time pending a suit pursuant to this chapter,

in the discretion of such court, make any

order that may be proper (i) to compel a

spouse to pay any sums necessary for the

maintenance and support of the petitioning

spouse . . . .

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Thus, "[t]he legislature has provided a statutory scheme for the

support of a spouse during the pendency of a suit and thereafter.

The law provides for only two types of support, either pendente

lite pursuant to Code § 20-103 or support due a former spouse

pursuant to Code § 20-107.1." Weizenbaum v. Weizenbaum, 12 Va.

App. 899, 903, 407 S.E.2d 37, 40 (1991) (emphasis added).

Husband argues that wife's spousal support under the

pendente lite order is "spousal support paid pursuant to a

pre-existing order" and must be included in income for child

support calculation. Code § 20-108.2(C). "The plain, obvious,

and rational meaning of a statute is always preferred to any

curious, narrow or strained construction; a statute should never

be construed so that it leads to absurd results." Branch v.

Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992).

The rational definition of "preexisting order" in the context of

Code § 20-108.2(C) is an order that has continuing effect and

that provides a spouse with an income source. A pendente lite

support award, by its nature, ends when a spousal or child

support order is entered under Code § 20-107.1 or Code

§ 20-108.2. If the trial court included the pendente lite

support amount in wife's income for purposes of calculating a

more permanent support arrangement, wife would in effect be

charged with income that she no longer receives. Thus, we hold

that the court correctly excluded the pendente lite award when

determining the final child and spousal support amounts.

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GROUNDS OF DIVORCE

Lastly, husband asks that we reconsider the Supreme Court's

decision in Alls v. Alls, 216 Va. 13, 216 S.E.2d 16 (1975), 2 and

hold that the trial court erred in awarding wife a divorce on the

ground of a one-year separation when she originally filed on

cruelty grounds. This Court is bound by the holding in Alls. We

hold that, assuming that the evidence was sufficient to support

husband's allegation of desertion by wife, "the trial court was

not compelled 'to give precedence to one proven ground of divorce

over another.'" Williams v. Williams, 14 Va. App. 217, 220, 415

S.E.2d 252, 253-54 (1992) (quoting Robertson v. Robertson, 215

Va. 425, 426, 211 S.E.2d 41, 43 (1975)). "Where dual or multiple

grounds for divorce exist, the trial judge can use . . . sound

discretion to select the grounds upon which . . . to grant the

divorce." Lassen v. Lassen, 8 Va. App. 502, 505, 383 S.E.2d 471,

473 (1989). The evidence established that the parties had been

living separate and apart for more than one year, and the trial

court properly awarded wife a divorce on the ground of one-year

separation based on the evidence presented. Husband's argument

that the trial judge failed to consider wife's desertion in

determining whether to award spousal support is without merit

because the trial judge made no finding of desertion.

2

In Alls, the Supreme Court of Virginia held that "one spouse

is not guilty of legal desertion in separating from the other

after the institution of a suit for divorce or during its

pendency." 216 Va. at 14, 216 S.E.2d at 17.

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Accordingly, the decision of the trial court is affirmed.

Affirmed.

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