                                  COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Clements and Haley
Argued at Chesapeake, Virginia


WILLIAM F. HARBER
                                                               MEMORANDUM OPINION ∗ BY
v.     Record No. 0559-07-1                                    JUDGE JAMES W. HALEY, JR.
                                                                    JANUARY 15, 2008
CHARLENE M. HARBER


                  FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                              Christopher W. Hutton, Judge

                Charles E. Haden for appellant.

                Lawrence D. Diehl (Barnes & Diehl, P.C., on brief), for appellee.


                                             I. Introduction

       William F. Harber (husband) appeals the final decree of the Circuit Court of the City of

Hampton, awarding Charlene M. Harber (wife) spousal support in the amount of $3,000 per

month. He maintains the circuit court erred (1) in concluding as a matter of law that income

could be imputed to him after he retired at a normal retirement age, (2) in finding the evidence

sufficed to impute such income, and (3) in setting spousal support where wife’s expenses

reflected expenses of two adult children. For the following reasons, we reverse and remand to

the circuit court for proceedings consistent with this opinion. We deny wife’s request for

attorney fees associated with this appeal.




       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                              II. Facts

       The parties were married in 1974 and had two children, now both adults. Husband has a

degree from The Johns Hopkins University in computer science. Wife has a high-school

education. Husband was the primary financial provider throughout the marriage.

       Husband, now 71, worked for a company called FOCUS Professional Services as a

computer specialist earning approximately $68,000 per year. In 2005, at age 69, husband

voluntarily retired from FOCUS, separated from wife, and in June of that year moved to Florida,

apparently to pursue a romantic interest.

       Wife filed for divorce in May 2005. Relevant provisions of a property settlement

agreement dated December 1, 2006 required husband to pay spousal support of $2,875 per month

“until further order of the court” 1 and equally divided the proceeds of an anticipated sale of the

marital residence.

       The following relevant evidence was adduced at a spousal support hearing on December

13, 2006.

       Husband’s retirement pension is $1,259 gross per month, and he receives Social Security

retirement benefits of $1,782 gross per month. Income tax and Medicare deductions leave

husband with net income of $2,320 per month. Husband testified to expenses of approximately

$5,400 per month. Since his move to Florida husband has had removed a number of skin cancers

and developed kidney function irregularities. He had anticipated living upon his retirement

benefits, but found he could not. He has submitted 49 applications to schools to teach computer

science, and 91 applications for work as a clerk in stores such as Office Max, Office Depot,




       1
         This sum reflected a determination of spousal support made during a pendente lite
hearing of September 16, 2005.


                                                -2-
Lowe’s, Sears, etc., without receiving a job offer. He surmised the lack of an offer was because

of “my age.”

        After sale of the marital residence, wife testified she would move into a three-bedroom

apartment, with her two adult children living with her, at a rent of $1,240 per month. Wife

admitted that all her other claimed monthly expenses, such as food, electricity, trash, cable, and

oil/gas, included the expenses of the adult children. Wife sought spousal support of $3,500 per

month. At the time of the support hearing wife was 58 years old. When the parties separated,

wife was working fulltime as a maintenance secretary, earning $9.50 per hour. In January 2006,

she had suffered a workplace injury and was receiving approximately $1,360 per month in

workers’ compensation benefits. She acknowledged she was “physically able to work . . . when

[her] doctor releases me.”

       Wife offered no evidence of job availability for husband nor any evidence rebutting

husband’s evidence concerning his attempts to find a job in Florida. Rather, she relied solely

upon husband’s pre-retirement income as the basis of his capacity to pay spousal support.

        By letter opinion dated December 21, 2006 the court wrote: “testimony has indicated

that [husband’s] ending salary [at FOCUS] exceeded $60,000 per year.” The court concluded

husband, upon retirement, “had not secured new employment consistent with a reasonable

continuation of responsibilities to his wife. Despite efforts to do so by [husband], no such

employment has still been secured.” The court nonetheless imputed income to husband, but the

opinion letter does not determine any amount of imputation.

        The court continued that wife’s expenses were “mildly elevated in light of the continued

residence by adult children,” but only reduced wife’s request of $3,500 spousal support to

$3,000. The court concluded it had considered the “factors of [Code] § 20-107.1, including, but

not limited to: 1, 2, 3, 8, 9 and 11.” The court offered no other recital of its rationale for its


                                                 -3-
decision. The spousal support award was included in the final decree of divorce entered March

2, 2007, the subject of this appeal.

                                            III. Analysis

          Code § 20-107.1(C) provides that a court “may decree that maintenance and support of a

spouse be made in periodic payments for a defined duration, or in periodic payments for an

undefined duration, or in a lump sum award, or in any combination thereof.” The law intends to

“provide a sum for such period of time as needed to maintain the spouse in the manner to which

the spouse was accustomed during the marriage, balanced against the other spouse’s ability to

pay.” Blank v. Blank, 10 Va. App. 1, 4, 389 S.E.2d 723, 724 (1990). Any award of spousal

support “‘must be based upon the circumstances in existence at the time of the award.’” Barker

v. Barker, 27 Va. App. 519, 528, 500 S.E.2d 240, 244 (1998) (quoting Payne v. Payne, 5

Va. App. 359, 363, 363 S.E.2d 428, 430 (1987)). Courts may not base spousal support on “an

uncertain future circumstance.” Jacobs v. Jacobs, 219 Va. 993, 995-96, 254 S.E.2d 56, 58

(1979).

          Circuit courts have significant discretion in awarding and determining the amount of

spousal support. Bruemmer v. Bruemmer, 46 Va. App. 205, 210, 616 S.E.2d 740, 742 (2005).

This Court limits its review of spousal support awards “to determining whether the trial court

clearly abused its discretion.” Miller v. Cox, 44 Va. App. 674, 679, 607 S.E.2d 126, 128 (2005).

Where the circuit court has held an ore tenus hearing, the circuit court’s decision must be

“‘plainly wrong or without evidence in the record to support it’” for this Court to reverse. Furr v.

Furr, 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992) (quoting Schoenwetter v. Schoenwetter, 8

Va. App. 601, 605, 383 S.E.2d 28, 30 (1989)).




                                                -4-
                   A. Whether the Circuit Court May Impute Income to Husband
                         Where Husband Has Reached Retirement Age

        Husband first argues the circuit court erred in considering imputing income to him since

he has exceeded retirement age and should have the right to retire to a lower income. Wife

contends the circuit court had discretion to find husband should work beyond normal retirement

age. She argues husband could not retire if the economic effect of that retirement is to diminish

the parties’ lifestyle.

        In determining the parties’ income for spousal support purposes, “a court may impute

income to a party who is voluntarily unemployed or underemployed.” Calvert v. Calvert, 18

Va. App. 781, 784, 447 S.E.2d 875, 876 (1994). Imputation occurs because the law does not

permit a payor spouse to elect a low paying position to the detriment of the spouse receiving

support. O’Hara v. O’Hara, 45 Va. App. 788, 798, 613 S.E.2d 859, 864 (2005). Where a party

has the ability to pay support and changes work in “a bona fide and reasonable business

undertaking, the risk of his success at his new job” rests upon the payor. Antonelli v. Antonelli,

242 Va. 152, 156, 409 S.E.2d 117, 119 (1991). Factors for a court to consider include a party’s

“earning capacity, financial resources, education and training, ability to secure education and

training, and other factors relevant to the equities” of the spouses. Joynes v. Payne, 36 Va. App.

401, 421, 551 S.E.2d 10, 19 (2001).

        This Court thoroughly considered whether a court may impute income in spite of a

spouse’s retirement in Stubblebine v. Stubblebine, 22 Va. App. 703, 473 S.E.2d 72 (1996) (en

banc). In that case, the payor husband “voluntarily retired after two careers.” Id. at 708, 473

S.E.2d at 74. He spent his retirement performing seventy to eighty hours of work per week

without compensation. Id. Given the husband’s ability to work and the payee wife’s needs, this

Court upheld imputation of income after retirement. Id. at 709, 473 S.E.2d at 74-75.




                                               -5-
       Nevertheless, the Court noted it did not intend to “establish a bright-line rule requiring a

payor spouse to forgo retirement in order to maintain support obligations at a pre-retirement

level. Each case depends on its particular facts.” Id. The Court held a circuit court “must take

into account the receiving spouse’s needs and ability to provide for the needs, and balance those

against the other spouse’s ability to provide support, even when the payor spouse has retired in

good faith at a ‘normal’ retirement age.” Id. at 710, 473 S.E.2d at 75. Circuit courts should

“consider each spouse’s current circumstances, including the fact that a party has retired, the

parties’ plans and expectations associated with the retirement, and each parties’ [sic] earning

capacity and needs at the time of the hearing.” Id. at 710-11, 473 S.E.2d at 75.

       In this case, we conclude the circuit court did not abuse its discretion in determining

husband could have income imputed to him. Husband’s ability to work is demonstrated by the

fact that he has applied to well over a hundred positions in Florida. Husband has greater earning

potential than wife since he possesses a college degree, whereas wife has only a high school

education. Thus, the circuit court did not abuse its discretion in finding husband could have

income imputed to him in spite of his retirement.

                       B. The Evidence Supporting Imputation of Income

       Husband next argues that even if the circuit court had authority to impute income to him

despite his retirement, the evidence failed to support the court’s decision. He contends wife had

the burden to show husband could earn an amount greater than his current income, but wife

produced no evidence at the hearing. Thus, husband contends the circuit court impermissibly

speculated on his ability to earn money. Wife argues the record contained sufficient evidence in

the form of the wages husband earned from his pre-retirement employment.

       The party requesting an imputation of income “has the burden of proving that the other

party is voluntarily foregoing more gainful employment.” Blackburn v. Michael, 30 Va. App.


                                               -6-
95, 102, 515 S.E.2d 780, 784 (1999). The party may meet this burden by showing “evidence of a

higher-paying former job or by showing that more lucrative work was currently available.”

Niemiec v. Commonwealth, 27 Va. App. 446, 451, 499 S.E.2d 576, 579 (1998). “The evidence

must only enable the trial judge reasonably to project what amount could be anticipated.” Hur v.

Va. Dep’t of Soc. Servs. Div. of Child Support ex rel. Klopp, 13 Va. App. 54, 61, 409 S.E.2d

454, 459 (1991). Recent past earnings may serve as sufficient evidence. Brody v. Brody, 16

Va. App. 647, 651, 432 S.E.2d 20, 22 (1993).

       However, it is improper to impute income “to the payor spouse on the basis of his

pre-retirement earning capacity.” 2 Stubblebine, 22 Va. App. at 709, 473 S.E.2d at 74 (citing

Donnell v. Donnell, 20 Va. App. 37, 41, 455 S.E.2d 256, 258 (1995)). In Stubblebine, the Court

upheld imputation based on post-retirement contract work. Id.

       In this case, wife produced no evidence of the extent of husband’s post-retirement

earning capacity. It is undisputed husband had reached typical retirement age. 3 Husband also

testified as to submitting over a hundred job applications without success. Wife, as noted above,

had the burden of showing husband voluntarily had declined appropriate employment. She

offered no evidence to meet this burden. The only evidence of husband’s earning capacity came

in the amount he earned at his pre-retirement employment. Yet as noted above, consideration of


       2
         A change in income due to retirement is fundamentally different than taking another
position in a bona fide business decision, which Antonelli held could be held against the payor
spouse. Antonelli, 242 Va. at 156, 409 S.E.2d at 119.
       3
          In Donnell, the Court suggested retirement in good faith was key to avoiding imputation
of pre-retirement income. Donnell, 20 Va. App. at 41, 455 S.E.2d at 258. As noted above,
husband had reached normal retirement age. Husband testified he intended to retire after leaving
his job at FOCUS, and wife offered no evidence to contradict this. Furthermore, while husband
moved to Florida in June 2005, the circuit court did not enter its pendente lite decree until
September 2005. The parties’ property settlement agreement of December 2006 provided
husband would continue to pay spousal support at the same amount as the pendente lite decree
until a final award. Thus, husband did not retire in bad faith.


                                               -7-
pre-retirement earning is inappropriate. Id.; Donnell, 20 Va. App. at 41, 455 S.E.2d at 258. On

this record, it was error for the circuit court to impute income to husband. Thus, the case must be

remanded for a re-calculation of spousal support without imputation of income. 4

              C. Whether the Circuit Court Improperly Considered Expenses from
              Two Adult Children of the Marriage in Calculating Spousal Support

       Husband also argues the circuit court erred by considering an expense sheet submitted by

wife that improperly reflected expenses of the couple’s two emancipated children, who husband

has no obligation to support. Husband contends the circuit court should have reduced spousal

support because of the expenses attributable to the children. Wife argues the circuit court’s letter

opinion stated it made a reduction due to wife’s cohabitation with her adult children and that

given wife’s low earning capacity, the award should not be considered an abuse of discretion.

       Children reach the age of majority at eighteen years of age, Fry v. Schwarting, 4

Va. App. 173, 180, 355 S.E.2d 342, 346 (1987), and parents normally have a duty to support

their children until this age, Code §§ 16.1-334; 20-61. Parents typically have no obligation to

support children beyond this point. See Mullin v. Mullin, 45 Va. App. 289, 301, 610 S.E.2d 331,

336 (2005); Germek v. Germek, 34 Va. App. 1, 8, 537 S.E.2d 596, 600 (2000).

       The evidence in this case indicates the circuit court improperly ordered husband to pay

spousal support for his two emancipated children. Wife testified her monthly rent for an


       4
          We note that on remand the circuit court should also more thoroughly explain how it
applied the factors of Code § 20-107.1(E). Code § 20-107.1(F) states that in disputed cases, “any
order granting . . . a request for spousal support shall be accompanied by written findings and
conclusions of the court identifying the factors in subsection E which support the court’s order.”
Code § 20-107.1(E) lists thirteen factors for a circuit court to consider before awarding spousal
support. In Robinson v. Robinson, 50 Va. App. 189, 195, 648 S.E.2d 314, 317 (2007), we held
subsection F imposes a mandatory duty for the circuit court to make explicit “written findings
and conclusions identifying the statutory factors that support the court’s ruling on a request for
spousal support.” Although the circuit court listed the portions of Code § 20-107.1(E) it
considered, it gave no findings and conclusions beyond a summary statement. The circuit court
failed to apply the facts of the case to the statutory factors, as required by Code § 20-107.1(F)
and Robinson.

                                                -8-
apartment would be $1,240, even though the mortgage payments on the marital residence were

only $797. This was because wife needed an apartment large enough for her two adult children

to live with her. Wife listed this rent on an expense sheet provided to the circuit court. As noted

above, she made no adjustment for other costs necessarily attributable to the children.

       The circuit court’s letter opinion, quoted above, provides no rationale as to how it

calculated wife’s expenses to come to an award of spousal support. The court simply stated as

follows: “She seeks $3,500 per month in spousal support. The expenses she anticipates are

mildly elevated in light of the continued residence by adult children of the marriage with

Mrs. Harber.” The court then awarded $3,000 per month in spousal support. Given the patent

impropriety of the above expenses, the Court concludes wife’s expenses were elevated at least

beyond the level determined by the circuit court. Accordingly, we remand on this issue.

                          D. Whether to Award Attorney Fees to Wife

       Wife requests the Court grant attorney fees and costs in connection with this appeal.

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Husband has

largely prevailed in his appeal. “We deny wife’s request for attorney’s fees on appeal given

husband’s position as prevailing party . . . .” Smith v. Smith, 43 Va. App. 279, 291 n.6, 597

S.E.2d 250, 256 n.6 (2004). Therefore, attorney fees and costs are denied.

                                         IV. Conclusion

       For the foregoing reasons, we reverse and remand for calculation of spousal support

consistent with our decision.

                                                                          Reversed and remanded.




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