                  COURT OF APPEALS OF VIRGINIA


Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia


BRUCE PATRICK McCLURE
                                              MEMORANDUM OPINION *
v.   Record No. 2569-95-4                    JUDGE CHARLES H. DUFF
                                                OCTOBER 8, 1996
MARGARET SUSAN McCLURE


            FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                     Stanley P. Klein, Judge
          Mary M. Benzinger (Raymond B. Benzinger;
          Benzinger & Benzinger, on brief), for
          appellant.

          Marc A. Astore (Shoun & Bach, on brief), for
          appellee.



     Bruce P. McClure (husband) appeals the decision of the

circuit court awarding spousal support to Margaret Susan McClure

(wife) and deciding other issues.   Husband contends on appeal

that the trial court (1) erred in allowing wife to amend her bill

of complaint; (2) did not have subject matter jurisdiction over

the issues raised in wife's amended bill of complaint; (3) erred

in awarding wife $6,000 in attorney's fees; and (4) erred by

imputing income to husband.   We affirm the decision of the trial

court.
                    Amended Bill of Complaint

     Rule 1:8 provides that "[l]eave to amend [any pleading]

shall be liberally granted in furtherance of the ends of
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
justice."    "[T]he decision to permit a party to amend a pleading

is discretionary with the trial court.      It is reviewable by this

Court only for an abuse of that discretion."        Thompson v.

Thompson, 6 Va. App. 277, 281, 367 S.E.2d 747, 750 (1988).

        Wife sought leave to amend her previously filed bill of

complaint upon entry of the ex parte divorce received in Guam by

husband.    In both the original and amended bills of complaint,

wife sought spousal and child support, child custody, and

equitable distribution of the parties' assets.         The amended bill

added a count, based upon the entry of the Guam divorce decree,

alleging that the Guam court lacked personal jurisdiction over

wife.    The amended bill also requested that wife be designated as

the irrevocable beneficiary of husband's survivor benefit or

annuity plan.
        The original bill and the amended bill both arose in the

context of the parties' divorce.       Both bills sought spousal and

child support and equitable distribution.       See Rosenberg v.
Rosenberg, 210 Va. 44, 47, 168 S.E.2d 251, 253 (1969).         "[T]he

allegations of the amended and supplemental bill do not state 'a

completely new case', are the proper subject of such a bill and

sufficiently relate to the original bill."       Id.    Therefore, there

was no abuse of the trial court's discretion.

                      Subject Matter Jurisdiction

        Husband asserts that, because he obtained a divorce in a

foreign jurisdiction, the trial court lacked subject matter



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jurisdiction to rule on spousal or child support, child custody,

or equitable distribution.    However, the court in Guam never had

personal jurisdiction over wife.       The only court which obtained

personal jurisdiction over both parties was the trial court in

Virginia.
            Full faith and credit given a foreign divorce
            decree extends to "property and support
            rights, as well as to marital status, where
            the divorce court had personal jurisdiction
            over the parties." However, when a divorce
            is granted ex parte the decree is binding
            only insofar as it terminates the marital
            status of the parties. Personal rights,
            which include property and support rights in
            divorce cases, may not be adjudicated by a
            court lacking in personam jurisdiction.

Gibson v. Gibson, 5 Va. App. 426, 429, 364 S.E.2d 518, 519 (1988)

(citations omitted).    "In Virginia, spousal support and

maintenance and property rights are cognizable legal obligations

which do survive an ex parte foreign divorce decree."       Id.

Similarly, parents are legally obligated to provide support to

their minor child.     Featherstone v. Brooks, 229 Va. 443, 448, 258

S.E.2d 513, 516 (1979).    The court retains continuing

jurisdiction to exercise its authority over the maintenance and

support of children.     See Kelley v. Kelley, 248 Va. 295, 298, 449

S.E.2d 55, 56 (1994).

     Moreover, under Code § 20-107.3(J), a court of proper

jurisdiction
          may exercise the powers conferred by this
          section after a court of a foreign
          jurisdiction has decreed a dissolution of a
          marriage or a divorce from the bond of
          matrimony, if (i) one of the parties was



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             domiciled in this Commonwealth when the
             foreign proceedings were commenced, (ii) the
             foreign court did not have personal
             jurisdiction over the party domiciled in the
             Commonwealth, (iii) the proceeding is
             initiated within two years of receipt of
             notice of the foreign decree by the party
             domiciled in the Commonwealth, and (iv) the
             court obtains personal jurisdiction over the
             parties . . . .


(Emphasis added.)    Each of the four requirements was satisfied in

this case.     Cf. Campbell v. Altizer, 19 Va. App. 553, 453 S.E.2d

570 (1995).
        Parra v. Parra, 1 Va. App. 118, 336 S.E.2d 157 (1985),

relied upon as authority by husband, addressed the authority of a

trial court to bifurcate a decree of divorce from resolution of

equitable distribution issues.    That question, specifically

resolved under the current statute, is inapposite to the issue

here.

        Therefore, the trial court had subject matter jurisdiction.

        Attorney's Fees

        An award of attorney's fees is a matter submitted to the

sound discretion of the trial court and is reviewable on appeal

only for an abuse of discretion.       Graves v. Graves, 4 Va. App.

326, 333, 357 S.E.2d 554, 558 (1987).      The key to a proper award

of counsel fees is reasonableness under all the circumstances.

McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162

(1985).

        The trial court found that husband continued to vigorously

object to the court's jurisdiction after the court had rejected



                                   4
husband's arguments.    Husband objected to the court's

jurisdiction in a motion filed April 14, 1995, which was denied

by the trial court on April 21, 1995.   On May 12, 1995, husband

filed a motion for reconsideration and a motion to dismiss wife's

amended bill of complaint, both of which raised the same

jurisdictional argument.   The court denied husband's motion to

dismiss by order entered May 26, 1995 and denied husband's motion

for reconsideration on June 9, 1995 "for the same reasons stated

in the April 21, 1995 hearing."
     The record supports the factual finding by the trial court

that husband continued to assert an argument previously rejected

by the court.   Based on the number of issues involved and the

respective abilities of the parties to pay, the award of $6,000

in attorney's fees to wife was not unreasonable or an abuse of

the trial court's discretion.

                        Imputation of Income

     "[A] court may impute income to a party who is voluntarily

unemployed or underemployed.    Imputation of income is based on

the principle that a spouse should not be allowed to choose a low

paying position that penalizes the other spouse or any children

entitled to support."    Calvert v. Calvert, 18 Va. App. 781,

784-85, 447 S.E.2d 875, 876-77 (1994) (citations omitted).

Decisions concerning child 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."     Id. at




                                  5
784, 447 S.E.2d at 876.

        Husband previously earned over $100,000 annually before he

was involuntarily retired from the military in August 1994.

Husband received notification of his involuntary retirement in

January 1994, but the trial court found that husband did not make

"totally reasonable efforts to obtain satisfactory, suitable

employment" after receiving notification.    Husband spent several

months during the summer volunteering for the Forest Service in

Idaho.    By husband's own testimony, the volunteer work resulted

in a missed opportunity for husband to obtain a teaching job.

Husband submitted evidence that he had attempted to obtain

additional employment, but acknowledged that he had not pursued

any management positions that paid less than $60,000 annually.
        The court is authorized to consider the parties' earning

capacity when determining child support.    Code § 20-108.1(B)(11).

At the time of the hearing, appellant testified that he earned

$20 an hour teaching one and one-half hours a day, or 7.5 hours a

week.    The trial court imputed additional income to husband equal

to earnings at the minimum wage for 32.5 hours per week.    We

cannot say that the trial court's decision to impute income to

husband was plainly wrong or unsupported by the evidence.

        Accordingly, the decision of the circuit court is affirmed.

This matter is remanded to the trial court to assess and award

appropriate appellate attorney's fees to wife.

                                           Affirmed and remanded.




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