                    COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Willis and Elder
Argued at Alexandria, Virginia


MARLENE NIEMIEC
                                              OPINION BY
v.        Record No. 1744-97-4           JUDGE LARRY G. ELDER
                                             JUNE 2, 1998
COMMONWEALTH OF VIRGINIA, DEPARTMENT
 OF SOCIAL SERVICES, DIVISION OF
 CHILD SUPPORT ENFORCEMENT, ex rel.
 JOHN R. NIEMIEC


              FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                    Arthur B. Vieregg, Jr., Judge

          Kevin E. Smith (Schumack & Smith, on briefs),
          for appellant.

          William K. Wetzonis, Special Counsel (Nancy
          J. Crawford, Regional Special Counsel;
          Richard Cullen, Attorney General; William H.
          Hurd, Deputy Attorney General; Robert B.
          Cousins, Jr., Senior Assistant Attorney
          General; Craig M. Burshem, Regional Special
          Counsel, on brief), for appellee.



     Marlene Niemiec ("mother") appeals the trial court's order

requiring her to pay $440 per month in child support to John R.

Niemiec ("father") through the Division of Child Support

Enforcement ("division").   She contends the trial court erred

when it imputed income to her when calculating her child support

obligation.   For the reasons that follow, we reverse.

                                  I.

                                 FACTS

     The parties were married in 1984, had two daughters, and

divorced in 1995.   As part of its divorce decree, the trial court

awarded custody of the parties' children to father and entered no
order regarding child support.

     On February 12, 1997, the Division of Child Support

Enforcement ("division") filed a motion on behalf of father

seeking a court order requiring mother to pay child support to

father through the division.    On June 20, 1997, the trial court

held a hearing on the division's motion.    The record in this case

does not contain transcripts of the hearing, and the evidence

presented by the parties has been summarized in a written

statement of facts.   According to this statement, father

testified that mother worked part-time as a day care provider

during the parties' marriage.    He testified that she cared for

between two and five children at a time and "received significant

compensation."
     Mother testified that, since December 1996, she had been

employed part-time as an administrative assistant.   She earned $9

per hour, and her employer generally limited her to no more than

twenty hours work per week.    Occasionally, she had been allowed

to work thirty hours per week.   The parties stipulated that her

current actual income was $780 per month.   Mother testified that,

while the parties were married, she stayed at home to care for

their children and "earned money as a day care provider for other

children."   She testified that, following the parties' divorce in

November 1995, she actively looked and applied for "full-time

work and better jobs."   As of the date of the hearing, all of her

attempts were unsuccessful.    She testified that she was still a




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licensed day care provider in Virginia but that she had not

sought employment in this field, either full time or part-time.

Mother testified that she did not suffer from any physical or

mental impairments that would prevent her from working full time.

     A child support worksheet included in the record indicates

that, based on the parties' current actual incomes, the

presumptively correct amount of mother's child support obligation

was $252.05.   The division argued that the trial court should

depart upward from the guideline amount because mother was

voluntarily underemployed.   In support of its argument, the

division calculated the presumptively correct amount of mother's

obligation based on the assumption that she worked forty hours

per week at her current hourly wage.   Based on this amount of

income, mother's child support obligation under the guidelines

was $463.94 per month.
     At the conclusion of the presentation of evidence, the trial

court found that the presumptively correct amount of mother's

child support obligation was $252.   The trial court found that

"there has been no evidence to demonstrate that [mother] is not

able to work a full-time (40-hour) position."   The trial court

found that she was voluntarily underemployed and imputed

additional income to her of $780 per month.   The trial court

found that, based on monthly income of $1,560 per month, the

presumptively correct amount of mother's child support obligation

was $464 per month.   The trial court then found that mother had




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previously incurred debts to support the children and awarded her

a monthly credit of $24 to pay off these debts.    It then ordered

mother to pay father $440 per month in child support through the

division.

                                 II.

                       IMPUTATION OF INCOME

     Mother contends the trial court erred when it deviated

upward from the presumptively correct amount of her child support

obligation by imputing income to her.    She argues the evidence

was insufficient to support the trial court's finding that she

was voluntarily underemployed.   We agree.
     In any proceeding to determine a parent's child support

obligation, "there is a rebuttable presumption that the amount

determined in accordance with the statutory guidelines, Code

§ 20-108.2, is the correct award."     Brooks v. Rogers, 18 Va. App.

585, 591, 445 S.E.2d 725, 728 (1994).    If the presumptive amount

is unjust or inappropriate, the trial court may deviate from it

based upon the factors found in Code § 20-108.1.     See Watkinson

v. Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 473-74 (1991).

Following a divorce, a parent may not voluntarily pursue low

paying employment "to the detriment of support obligations to the

children."   Brody v. Brody, 16 Va. App. 647, 651, 432 S.E.2d 20,

22 (1993); see also Auman v. Auman, 21 Va. App. 275, 279, 464

S.E.2d 154, 156 (1995).   As such, except as provided in Code

§ 20-108.1(B)(3), a trial court determining child support is



                                  4
required to impute income to a parent who is found to be

voluntarily underemployed.   See Hamel v. Hamel, 18 Va. App. 10,

12, 441 S.E.2d 221, 222 (1994); see also Code § 20-108.1(B)(3),

(11) (stating that "[i]mputed income to a party who is

voluntarily unemployed or voluntarily under-employed" and the

"[e]arning capacity . . . of each parent" are factors on which

the trial court may justify a deviation from the presumptively

correct amount of child support).
     When asked to impute income to a parent, the trial court

must consider the parent'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 children.   See Brooks, 18 Va. App. at 592, 445 S.E.2d

at 729 (citing Code § 20-108.1(B)).   The burden is on the party

seeking the imputation to prove that the other parent was

voluntarily foregoing more gainful employment, either by

producing evidence of a higher-paying former job or by showing

that more lucrative work was currently available.   See Brody, 16

Va. App. at 651, 432 S.E.2d at 22; Hur v. Virginia Dept. of

Social Services Div. of Child Support Enforcement ex rel. Klopp,

13 Va. App. 54, 61, 409 S.E.2d 454, 459 (1991); see also

Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119

(1991).   The evidence must be sufficient to "enable the trial

judge reasonably to project what amount could be anticipated."

Hur, 13 Va. App. at 61, 409 S.E.2d at 459.   "If a trial court




                                 5
imputes income to a party, it must make written findings

explaining why imputed income to the party would make it unjust

or inappropriate to award the presumptive amount of child

support."     Brody, 16 Va. App. at 650, 432 S.E.2d at 21-22.

     A trial court's decision to deviate from the presumptively

correct amount of child support based upon imputed income will

not be disturbed on appeal if it is supported by the evidence and

the trial court has not otherwise abused its discretion.        See
Brooks, 18 Va. App. at 592, 445 S.E.2d at 729.    The trial court's

award must be "based upon 'circumstances in existence at the time

of the award' and not upon speculation or conjecture."     Id.

     We hold that the evidence was insufficient to support the

trial court's conclusion that mother was voluntarily

underemployed.    The summary of the evidence contained in the

written statement of facts indicates that a finding that mother

had voluntarily foregone higher-paying employment could only be

made by supplementing the evidence presented with surmise and

conjecture.

     First, no evidence in the record indicates that mother

previously left higher-paying employment.    Although a trial court

may impute income to a parent "based on evidence of recent past

earnings," Brody, 16 Va. App. at 651, 432 S.E.2d at 22, the
evidence of mother's past earnings did not establish that her

remuneration from her current part-time job as an administrative

assistant represented a reduction in income.    The written




                                   6
statement of facts prepared by the parties states only that

mother worked part-time as a day care provider during the

parties' marriage and that she earned "significant compensation."

The statement of facts does not quantify how "significant"

mother's income was from this work.   Moreover, both mother's

prior work as a day care provider and her current job as an

administrative assistant were part-time vocations, and the record

does not otherwise indicate that her income as a day care

provider was greater than her income as an administrative

assistant.
     In addition, the evidence regarding the employment

opportunities currently available to mother does not support the

trial court's finding that she could earn twice her current

income by working forty hours per week.   The record established

that mother could not double her income by working forty hours

per week for her current employer.    Although mother earned $9 per

hour from her current job, the record established that her

employer never permitted her to work more than twenty-to-thirty

hours per week.   In addition, the evidence in the record

regarding mother's search for better-paying employment does not

indicate that she failed to market herself adequately.    Mother's

uncontradicted testimony established that she had "actively

look[ed] and appl[ied] for full-time work and better jobs" since

the parties' divorce and that all of her efforts had been

unsuccessful.   Although mother had not sought full-time work as a




                                 7
day care provider, a position for which she was still licensed,

the record did not establish that such positions were available

or that her earnings from full-time work in this field would be

greater than her current income.




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     For the foregoing reasons, we reverse the judgment of the

trial court.

                                                       Reversed.




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