                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Humphreys, Russell and AtLee
PUBLISHED


            Argued at Fredericksburg, Virginia


            MICHAEL HUGH PALMER MURPHY
                                                                               OPINION BY
            v.     Record No. 2270-14-4                                 JUDGE RICHARD Y. ATLEE, JR.
                                                                            DECEMBER 8, 2015
            CORIE ANN MURPHY


                           FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                                        Carroll A. Weimer, Jr., Judge

                           Adam D. Elfenbein for appellant.

                           Michael C. Miller (Cole Miller PLLC, on brief), for appellee.


                   Appellant Michael Hugh Palmer Murphy (“father”) and appellee Corie Ann Murphy

            (“mother”) divorced in 2013. The Circuit Court of Prince William County (“the trial court”)

            modified their custody, visitation, and child support agreement in November 2014, reducing

            mother’s support obligation to reflect a reduction in annual salary from $170,000 to $108,000

            after she changed jobs. Father appeals the trial court’s modification of mother’s support

            obligation, arguing that it abused its discretion in failing to impute an annual income of $170,000

            to mother. Father contends that mother is voluntarily under-employed and should be required to

            pay child support based on an imputation of her prior income. We disagree and affirm.

                                                         I. FACTS

                   The parties divorced on December 20, 2013. The divorce decree incorporated, but did

            not merge, a marital settlement agreement (“the Agreement”). The parties have two minor sons,

            born in July 2005 and October 2008. Under the Agreement, father and mother shared joint legal

            custody, and father had primary physical custody. Father is a public school teacher. At the time
of their divorce, mother made between $140,000 and $170,000 annually (an amount that varied

because a substantial part of her income relied on commission) in a position that demanded long

hours, including evenings and weekends. This position significantly limited the time the

children spent with mother. After the divorce, mother took a position that offered traditional

hours and the ability to work from home, but reduced her salary to approximately $110,000 per

year. In addition, father was reassigned to another school, which required a much longer

commute and required him to put the children in daycare before and after school.

       Anticipating mother’s change in employment, the Agreement specified that her taking a

new position would constitute a material change in circumstances that would be sufficient to

satisfy the first prong under Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983).1 In

April 2014, mother filed a petition to modify the Agreement, asserting that there had been a

material change based upon her new job, father’s new job, and the sale of the marital residence.

She initially requested modification to joint physical custody and a reduced child support

obligation, and later amended to ask for primary physical custody. The trial court pendente lite

modified the visitation schedule, but father retained primary physical custody. In that order, the

trial court did not modify mother’s support obligation, imputing $170,000 in annual income to

her. The final order entered on November 21, 2014 modified mother’s income and support

obligations to reflect her new salary, calculated to be $108,000 annually, and awarded joint

physical custody.




       1
         To modify custody, a court must ask “first, has there been a change in circumstances
since the most recent custody award; second, would a change in custody be in the best interests
of the children.” Keel, 225 Va. at 611, 303 S.E.2d at 921.
                                               -2-
       II. DISCUSSION AND ANALYSIS: SUPPORT MODIFICATION AND IMPUTED INCOME

                                      A. Overview of the Law

       “In any proceeding on the issue of determining child support . . . the court shall consider

all evidence presented relevant to any issues joined in that proceeding. The court’s decision in

any such proceeding shall be rendered upon the evidence relevant to each individual case.” Code

§ 20-108.1. In a modification proceeding, “[d]eviations from the presumptive support obligation

[under Code § 20-108.2] must be supported by written findings which state why the application

of the guidelines in the particular case would be unjust or inappropriate.” Richardson v.

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

       One ground for deviation is the voluntary unemployment or under-employment of a

party. “Income may be imputed ‘to a party who is voluntarily unemployed or voluntarily

underemployed.’” Brody v. Brody, 16 Va. App. 647, 650, 432 S.E.2d 20, 22 (1993) (quoting

Code § 20-108.1(B)(3)). A court may not impute income “to a custodial parent when a child is

not in school, child care services are not available and the cost of such child care services are not

included in the computation . . . .” Code § 20-108.1(B)(3). “The trial court’s decision to not

impute income to the mother will be upheld on appeal unless it is ‘plainly wrong or unsupported

by the evidence.’” Bennett v. Va. Dep’t of Soc. Servs., Div. of Child Support Enforcement ex

rel. Bennett, 22 Va. App. 684, 691-92, 472 S.E.2d 668, 672 (1996) (quoting Sargent v. Sargent,

20 Va. App. 694, 703, 460 S.E.2d 596, 600 (1995)).

                        B. The Trial Court’s Discretion to Impute Income

       A handful of this Court’s cases assert that a trial court is required to impute income

whenever it finds a party is voluntarily unemployed or under-employed. All of these cases were

decided under the pre-2006-amendment version of Code § 20-108.1. The 2006 amendments

plainly supersede any “mandatory imputation” rule. Moreover, none of these cases presented

                                                -3-
facts—like those we see here—where a parent voluntarily took a position with a lower salary,2

but provided other non-monetary benefits so that a court could find the move was in the best

interest of the children. These prior statements requiring courts to impute income create

unnecessary confusion, conflicting with both statutory and case law stating that such imputation

is discretionary. The law does not require a trial court to impute income in all cases of voluntary

under-employment, as this would usurp the discretion expressly granted to the trial court by the

legislature. We take this opportunity to clarify this important issue.

                 1. The origin and evolution of the “mandatory imputation” rule

       The case that most explicitly mandated imputation, and upon which subsequent cases

rely, is Hamel v. Hamel, 18 Va. App. 10, 441 S.E.2d 221 (1994), in which this Court wrote:

               One of the grounds for deviation from the presumptive amount is
               the voluntary unemployment or underemployment of either parent.
               Code § 20-108.1(B)(3). That code section does not expressly
               require the court to impute income to a parent found to be
               voluntarily unemployed, but such a reading is implicit both in the
               text of the statute itself and in this Court’s prior opinions
               interpreting that text. See, e.g., Brody v. Brody, [16] Va. App.
               [647], [649], 432 S.E.2d 20, 21 (1993). Code § 20-108.1(B)
               mandates that “the court shall consider all evidence presented
               relevant to any issue joined in that proceeding” and that its
               “decision shall be rendered upon the evidence relevant to each
               individual case.” Clearly, “in setting an award of child support, the
               ‘primary issue before a trial judge is the welfare and best interest
               of the child, not the convenience or personal preference of a
               parent.’” Brody, [16] Va. App. at [651], 432 S.E.2d at 22 (quoting
               Hur v. Dep’t of Social Servs., 13 Va. App. 54, 60, 409 S.E.2d 454,
               458 (1991)).

Id. at 12-13, 441 S.E.2d at 222 (emphasis added). Hamel failed to envision a scenario where a

parent takes a position with a reduced salary, but the move is still in the best interest of the

children. In sole support of the assertion that mandatory imputed income is “implicit” in the case



       2
         There is no evidence in the record indicating that mother’s reduced salary was not
sufficient to meet the needs of the children.
                                               -4-
law, Hamel cited Brody, a case in which the Court reversed and remanded “[b]ecause the trial

court required the father to prove that the mother was ‘voluntarily unemployed’ and to prove the

nature of the employment available to her . . . .” Brody, 16 Va. App. at 652, 432 S.E.2d at 23

(citing Code § 20-108.1(B)(3)). In other words, this Court reversed because the trial court

misallocated the burden of proof.3 Brody does not stand for the proposition that a court must

impute income in all circumstances where a parent voluntarily makes a lower salary.

       Hamel went on in its discussion of “implicit” mandatory imputation, stating that “case

law holds that the risk of reduction in income as a result of a parent’s intentional act, even if

done in good faith, is insufficient grounds for reducing the amount of support due under a

pre-existing order.” Hamel, 18 Va. App. at 12-13, 441 S.E.2d at 222 (citing Antonelli v.

Antonelli, 242 Va. 152, 155-56, 409 S.E.2d 117, 119-20 (1991)). This is not entirely accurate.

In Antonelli, the Supreme Court reversed this Court when we overturned a trial court’s

imputation of income to a father. The father had taken a new job that initially appeared to have a

similar income potential, but the new position (as a commissioned stockbroker) ultimately

provided less income because of a market crash. Our Supreme Court held that the trial court did

not err in choosing to impute his previous income. The judge was permitted to find that the

father assumed the risk of making less money, and that risk should not be borne by his children.


       3
          Brody is also commonly cited for the holding that a mother who leaves work to stay
home with her children is nonetheless voluntarily unemployed and therefore subject to
imputation. This holding is not unequivocal, however, and is best understood in view of the
facts. In Brody, the mother quit her job to care for a child from her new marriage, not the
children to whom she owed support. The parties had previously agreed to give the father (her
ex-husband) sole custody of the children from her previous marriage. This Court emphasized
that her decision to stop working was not in the best interests of the children to whom she owed a
support obligation. In other words, leaving her job was “for the convenience or personal
preference of a parent,” “which operates to the detriment of [her] children.” Brody, 16 Va. App.
at 651, 432 S.E.2d at 22 (quoting Hur, 13 Va. App. at 60, 409 S.E.2d at 458). Again, this is
plainly distinguishable from the facts here, where mother’s new schedule permitted her to spend
time with and be available for the children to whom she owes support. Moreover, mother
continued to support them.
                                                -5-
Antonelli did not hold that the trial court was required to impute, merely that the judge, “in the

exercise of judicial discretion,” was not prohibited from imputing income under those

circumstances, and this Court erred in holding otherwise. Antonelli, 242 Va. at 156, 409 S.E.2d

at 119. Hamel’s restatement of the holding ignored the posture of the case. This confusion was

perpetuated in subsequent cases quoting Hamel. See, e.g., Niemiec v. Dep’t of Soc. Servs., Div.

of Child Support Enforcement ex rel. Niemiec, 27 Va. App. 446, 451, 499 S.E.2d 576, 579

(1998); Va. Dep’t of Soc. Servs., Div. of Child Support Enforcement ex rel. Ewing v. Ewing, 22

Va. App. 466, 471, 470 S.E.2d 608, 610 (1996); Rawlings v. Rawlings, 20 Va. App. 663, 669,

460 S.E.2d 581, 583 (1995).

       In the last of this line of cases from the 1990s, this Court discussed mandatory imputation

in Bennett, 22 Va. App. at 692, 472 S.E.2d at 672. To reiterate, under the Code, a court may not

impute income “to a custodial parent when a child is not in school, child care services are not

available and the cost of such child care services are not included in the computation . . . .” Code

§ 20-108.1(B)(3). In Bennett, the Court, after cursorily reviewing the holdings in Hamel and

Brody, inverted the statute’s language and stated that the “trial court shall impute income to a

custodial parent who is voluntarily unemployed or underemployed where the age of the child and

circumstances permit the custodial parent to be gainfully employed.” Bennett, 22 Va. App. at

692, 472 S.E.2d at 672 (emphasis added) (citing Code § 20-108.1(B)(3)). That reversal from

prohibition to mandate was a logical error unless one assumes it incorporated Hamel’s language

on “implicit” mandatory imputation. Ultimately, Bennett held that the trial court did not abuse

its discretion in declining to impute, distinguishing the facts before the Court from those in




                                                -6-
Hamel and Brody.4 In other words, despite incorporating this mandatory language, Bennett held

that the trial court was not required to impute.

       The mandatory imputation language finally resurfaced in Broadhead v. Broadhead, 51

Va. App. 170, 655 S.E.2d 748 (2008). Broadhead provides a fairly comprehensive description of

previous case law addressing support modification:

               “Once a child support award has been entered, only a showing of a
               material change in circumstances will justify modification of the
               support award. The moving party has the burden of proving a
               material change by a preponderance of the evidence.” Crabtree v.
               Crabtree, 17 Va. App. 81, 88, 435 S.E.2d 883, 888 (1993). “[A]
               party seeking a reduction in support payments has additional
               burdens: ‘He must make a full and clear disclosure relating to his
               ability to pay. He must also show that his lack of ability to pay is
               not due to his own voluntary act or because of his neglect.’”
               Edwards v. Lowry, 232 Va. 110, 112-13, 348 S.E.2d 259, 261
               (1986) (emphasis added) (quoting Hammers v. Hammers, 216 Va.
               30, 31-32, 216 S.E.2d 20, 21 (1975)). Thus, in order to prove a
               material change in circumstances that justifies a reduction in
               support, a parent “must establish that he is not ‘voluntarily
               unemployed or voluntarily under employed.’” Antonelli v.
               Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119 (1991) (quoting
               Code § 20-108.1(B)(3)).

Id. at 179, 655 S.E.2d at 752 (quoting Ewing, 22 Va. App. at 470, 470 S.E.2d at 610).

       Broadhead went on to describe the process for imputing income:

               In considering the appropriate amount of child support to be paid,
               “a trial court . . . is required to impute income to a parent who is
               found to be voluntarily underemployed.” Niemiec v. Dep’t of Soc.
               Servs., 27 Va. App. 446, 451, 499 S.E.2d 576, 579 (1998) (citing
               Code § 20-108.1(B)(3)). In deciding whether income should be
               imputed to a parent, and the amount of such imputed income, “the
               trial court must ‘consider the [party’s] 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.’” Blackburn v. Michael, 30 Va. App. 95,
               102, 515 S.E.2d 780, 784 (1999) (quoting Niemiec, 27 Va. App. at

       4
         The child in Bennett was disabled and required high-level care, and the mother (who
had not worked in ten years) needed to be available when called to take him home from school or
daycare. In addition, the Court held that the father failed to introduce evidence of any jobs
available to mother, much less those providing the necessary flexibility.
                                                -7-
               451, 499 S.E.2d at 579). The “court may [also] impute income
               based on evidence of recent past earnings.” Brody v. Brody, 16
               Va. App. 647, 651, 432 S.E.2d 20, 22 (1993).

Id. Broadhead was decided under the pre-2006-amendment version of Code § 20-108.1,5 and is

the last case to reiterate a rule requiring imputation.

                 2. The 2006 amendments and “good faith and reasonableness”

       Code § 20-108.1(B) lists reasons a judge may elect to deviate from the presumptive

guideline amount, because these factors “affect[ ] the obligation, the ability of each party to

provide child support, and the best interests of the child.” Code § 20-108.1(B). As noted

previously, one such factor permits imputing income “to a party who is voluntarily unemployed

or voluntarily under-employed; provided that income may not be imputed to a custodial parent

when a child is not in school, child care services are not available and the cost of such child care

services are not included in the computation.” Code § 20-108.1(B)(3). In 2006, the legislature

added the following language:

               and provided further, that any consideration of imputed income
               based on a change in a party’s employment shall be evaluated with
               consideration of the good faith and reasonableness of employment
               decisions made by the party, including to attend and complete an
               educational or vocational program likely to maintain or increase
               the party’s earning potential[.]

Id. (emphasis added). Although a judge need only make written findings if he or she elects to

impute income, this amendment demonstrates that, in considering “relevant evidence,” a judge

must consider not only if a party is voluntarily under-employed, but also the good faith and

reasonableness of the party’s employment decision. Imputation, therefore, cannot be mandatory

in all cases of voluntary under-employment, as that would prevent a judge from performing this

inquiry.


       5
        The appellant in Broadhead conceded that the pre-amendment version governed
because he filed his motion to reduce support before the 2006 amendments went into effect.
                                               -8-
       Even those cases containing “mandatory” language speak first in terms of permission and

discretion. See Bennett, 22 Va. App. at 691, 472 S.E.2d at 672 (“A trial court has discretion to

impute income to either or both the custodial or noncustodial parent who is voluntarily

unemployed . . . .” (emphasis added)); Brody, 16 Va. App. at 650, 432 S.E.2d at 22 (“Income

may be imputed ‘to a party who is voluntarily unemployed or voluntarily underemployed.’”

(emphasis added) (quoting Code § 20-108.1(B)(3)). These cases create avoidable confusion: on

one hand, they say the trial court has discretion, and “may” impute income; on the other, they

take that discretion away. There is no mistake in their results, but these statements regarding

mandatory imputation muddy the law and deny judges the discretion the law affords them.6

                                         III. APPLICATION

       The trial court here followed the procedure set out by the legislature. In considering the

appropriate amount of support, the judge had an obligation to consider all the relevant evidence,

including the advantages children receive from having two active and present parents, mother’s

availability in the event of emergencies, her ability to attend school events and take the children


       6
          The facts before us reveal how requiring imputation in all cases of voluntary
under-employment is illogical. Because mother is the parent seeking modification, she bears the
burden to show that one or more material changes in circumstances warrant modification and
that she is not voluntarily un- or under-employed. Despite the phrasing in Broadhead which
seems to equate these two burdens, many circumstances aside from her reduced salary could be
material, including some we see here (the sale of the marital residence and a change in the other
party’s employment). If mother meets the first burden, the trial court conducts modification
proceedings to determine if and how it should modify support to address the changed
circumstances.
        Given that a modification proceeding is a “proceeding on the issue of determining child
support,” Code § 20-108.1, the trial court faces a rebuttable presumption that the guideline
amount—under which the trial court must not impute—is correct. In order to deviate from that
amount and impute income, the trial court must make written findings to support the decision to
impute, and in doing so, must explain why the application of the guidelines would be unjust or
inappropriate. If mother fails to prove that she is not voluntarily under-employed, and
imputation is thus required, the trial court is then also required to make written findings
justifying the decision to impute, despite the absence of supporting evidence. The logical
absurdity in this vanishes if we dispense with the contradictory and confusing language
mandating imputation.
                                                  -9-
to doctor’s appointments, reduced child care costs, and the other benefits that flowed to the

children from her flexible schedule. In addition, mother’s reduced salary still provided a

generous income. Once the trial judge determined that changed circumstances and the best

interests of the children justified modifying the support amount, Code § 20-108.1 required him to

calculate the support amount using, among other figures, mother’s current salary. If he wished to

impute her previous income, he would have been required to make express findings on the record

to support the deviation from the presumptive amount. Imputing income is the exception, not the

rule. The trial judge did not err in declining to do so. Furthermore, in considering whether to

impute income, the judge was required to consider the “good faith and reasonableness” of

mother’s decision. The record presents numerous reasons he may have concluded her decision

was both reasonable and in good faith. Accordingly, we see no error in the decision not to

impute.

                                         IV. CONCLUSION

       We find that the trial court did not err in declining to impute income to mother. Its

decision was neither plainly wrong nor unsupported by the evidence. To the extent this Court

has previously stated or implied that a trial court must impute income in any circumstance where

a parent has voluntarily taken a position with a reduced salary, without regard for the good faith

and reasonableness of the decision, or other factors affecting the best interests of the children,

those holdings7 are superseded by statutory amendment.

                                                                                           Affirmed.




       7
        See Broadhead, 51 Va. App. 170, 655 S.E.2d 748; Niemiec, 27 Va. App. 446, 499
S.E.2d 576; Bennett, 22 Va. App. 684, 472 S.E.2d 668; Ewing, 22 Va. App. 466, 470 S.E.2d
608; Rawlings, 20 Va. App. 663, 460 S.E.2d 581; Hamel, 18 Va. App. 10, 441 S.E.2d 221.
                                            - 10 -
