                       COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Frank


WILLIAM ALBERGER
                                            MEMORANDUM OPINION *
v.   Record No. 2527-98-4                       PER CURIAM
                                               JUNE 15, 1999
JOYCE LEE ALBERGER


           FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                       Donald M. Haddock, Judge

            (Gwena Kay Tibbits; Law Offices of Gwena Kay
            Tibbits, on briefs), for appellant.

            (Michael A. Ward; Gannon, Cottrell & Ward,
            P.C., on brief), for appellee.


     William Alberger (husband) appeals the final decree of

divorce entered by the circuit court.    Husband contends that the

trial court erred by (1) determining the amount of child support

by imputing income to him, failing to impute income to Joyce Lee

Alberger (wife), and requiring him to pay private school

tuition; (2) misapplying the factors set out in Code

§ 20-107.3(E) when granting wife a monetary award; (3) requiring

husband to pay debts associated with the marital residence until

the sale of the residence; (4) requiring husband to pay any

unsecured joint debts not satisfied by the proceeds of the sale

of the marital residence; (5) not awarding husband the marital


    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
residence; and (6) not crediting husband with payments made on

the marital residence during the parties' separation.       Upon

reviewing the record and briefs of the parties, we conclude that

this appeal is without merit.    Accordingly, we summarily affirm

the decision of the trial court.     See Rule 5A:27.

     On appeal, "we view the evidence and all reasonable

inferences in the light most favorable to the prevailing party

below . . . .    'The burden is on the party who alleges

reversible error to show by the record that reversal is the

remedy to which he is entitled.'"        Lutes v. Alexander, 14 Va.

App. 1075, 1077, 421 S.E.2d 857, 859 (1992) (citation omitted).

                             Child Support

     "The starting point for determination of each parent's

child support obligation is the amount calculated using the

schedule found in Code § 20-108.2(B); however, that amount is

subject to adjustment based on the factors found in Code

§ 20-108.1."     Brody v. Brody, 16 Va. App. 647, 650, 432 S.E.2d

20, 21 (1993).    Among the relevant factors which the trial court

may consider when deviating from the guideline amount are income

imputed to a party who is voluntarily unemployed or voluntarily

underemployed, and the parties' respective earning capacity,

obligations and needs, and financial resources.        See Code

§ 20-108.1(B)(3) and (7).    When the imputed income and the

resulting child support are "supported by the evidence and the

trial judge has not otherwise abused his or her discretion, the

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deviation . . . will be upheld on appeal."    Richardson v.

Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991).

     The evidence established that husband earned in excess of

$130,000 each year between 1993 and 1997.    Although husband was

employed in a law firm at the time of the hearing, he was

leaving his employment at the end of August 1998.   He admitted

that he was leaving voluntarily, that he had made few attempts

to seek employment with another firm, and that he planned to

open his own office.   He testified that he would be bringing his

clients with him and that in each of his employment changes in

the past, "[w]hen I've left, the clients have – have come with

me, and – and they will do so."    He also testified that one

client would pay $7,500 for four months, and another between

$5,000 and $7,000 a month.

     Husband argued that he was not attempting to avoid his

obligation to support his child.    Nonetheless, he was not free

to "make career decisions that disregard the needs of his

dependents and his potential obligation to them, and 'the risk

of his success at his new job [is] upon [him], and not upon [his

child].'"   Auman v. Auman, 21 Va. App. 275, 279, 464 S.E.2d 154,

156 (1995) (citation omitted).    Here, the evidence indicated

that husband's income had been above, and in some years well

above, $130,000 for each of the last five years.    While the

trial court recognized that husband’s circumstances were

fluctuating, we cannot say it erred by imputing to husband a

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level of income well within husband’s most recent earning

history.   "Where a parent is 'voluntarily unemployed or

voluntarily underemployed' a trial court may impute income based

on evidence of recent past earnings."   Brody, 16 Va. App. at

651, 432 S.E.2d at 22.

     Similarly, while the evidence indicated that wife's income

would increase if her position became permanent, we find no

error in the trial court's decision to use wife’s actual

earnings at the time of the hearing, rather than to impute to

her a potential increase in earnings.

     Finally, the parties agreed that their son should continue

to attend private school.   The trial court found that husband

was in the better position to pay for this expense.   We find no

abuse of discretion in the trial court’s decision to require

husband to bear the cost of the private school tuition.

                      Equitable Distribution

     Husband's remaining issues challenge the trial court's

equitable distribution decision.   "Fashioning an equitable

distribution award lies within the sound discretion of the trial

judge and that award will not be set aside unless it is plainly

wrong or without evidence to support it."   Srinivasan v.

Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990).

"Unless it appears from the record that the trial judge has not

considered or has misapplied one of the statutory mandates, this



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Court will not reverse on appeal."     Ellington v. Ellington, 8

Va. App. 48, 56, 378 S.E.2d 626, 630 (1989).

     Husband contends that the trial court erred in its

application of the Code § 20-107.3(E) factors when making its

monetary award of $15,000 to wife.     We disagree.   The trial

court's opinion letter set out in detail the factors and

evidence considered by the court.    The court noted, among other

factors, that husband made the greater monetary contributions to

the family, that he paid mortgage and other expenses during the

separation, and that he paid the college expenses for wife and

her daughter.   Based upon the evidence submitted to and relied

upon by the trial court, husband was awarded his IRA, life

insurance, and bank accounts with a value of $67,379, while wife

received her accounts totaling $153.    Husband owed over $70,000

in his separate unsecured debt, while wife owed over $36,000.

The trial judge thoroughly examined the evidence and considered

the required factors before determining the award.     In reviewing

the award, "'we rely heavily on the trial judge's discretion in

weighing the particular circumstances of each case.     Only under

exceptional circumstances will we interfere with the exercise of

the trial judge's discretion.'"   Gamble v. Gamble, 14 Va. App.

558, 573, 421 S.E.2d 635, 644 (1992) (quoting Aster v. Gross, 7

Va. App. 1, 8, 371 S.E.2d 833, 837 (1988)).    We cannot say that

the decision to grant wife a monetary award of $15,000 was an

abuse of discretion.

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      Husband also contends the trial court erred by requiring

him to pay the unsecured joint debts left unsatisfied after the

sale of the marital residence.    We find no error.   At the time

of the hearing, the parties' unsecured joint debt totaled over

$33,000, while their equity in the marital residence was

$40,000.   The amount of unsecured joint debt for which husband

would be solely responsible was unascertainable at the time of

the trial.   However, despite the fact that husband's employment

was less certain than that of wife, he continued to have the

ability to earn substantially more than she.     Husband has failed

to demonstrate that the trial court abused its discretion by

assigning remaining unsecured joint debts to him.

     Husband contends that the trial court failed to give him

credit for his post-separation payments towards the mortgage on

the marital residence.   The record demonstrates that the trial

court expressly considered those payments.     The court was not

required under Code § 20-107.3 to assign a dollar-for-dollar

credit to husband for his payments.      See von Raab v. von Raab,

26 Va. App. 239, 249-50, 494 S.E.2d 156, 161 (1997).

     Husband also contends that the trial court erred by

requiring him to pay all debts associated with the marital

residence until sold.    While the trial court acknowledge that

"[wife’s] prospects appear more certain that [husband's]," the

evidence established that husband continued to have the greater

relative earning capability.   We find no error in the trial

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court's decision to require husband to continue to pay the

expenses for the marital residence until its sale.

     Finally, husband contends that the trial court erred by

requiring the sale of the marital residence.   As noted above,

the marital residence was a means by which the parties could use

a joint asset to pay unsecured joint debt.   By directing that

the sale proceeds be applied to existing joint debts, the trial

court exercised its statutory authority to apportion marital

debts.   See Code § 20-107.3(C).   Both the evidence and the law

support the trial court's decision.

     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                          Affirmed.




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