                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia


BERNARD H. LEIFFER
                                         MEMORANDUM OPINION * BY
v.         Record No. 1035-96-2        JUDGE ROSEMARIE ANNUNZIATA
                                             MARCH 18, 1997
EMILY LEIFFER


            FROM THE CIRCUIT COURT OF HENRICO COUNTY
                      James E. Kulp, Judge
          Judson W. Collier, Jr. (Hooker, Bode,
          Collier, Dickinson & Gardner, on brief), for
          appellant.

          Phoebe P. Hall (Franklin P. Hall; Hall &
          Hall, on brief), for appellee.



     Husband, Bernard H. Leiffer, appeals the final order of the

trial court establishing permanent spousal support payable to

wife, Emily Leiffer.    Husband contends that the court erred by

(1) imputing income to him; and (2) ordering permanent support

payable September 20, 1995 rather than May 1, 1995.     We affirm.

                                  I.

     In April 1994, wife filed a bill of complaint, seeking a

divorce from husband.    In June 1994, the court ordered husband to

pay temporary support in the amount of $4,893.38 per month.     In

May 1995, husband petitioned the court to reduce his temporary

support obligation.    Husband's petition was taken under

advisement pending husband's compliance with the court's

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
discovery orders.

        At a subsequent hearing on the grounds of divorce and

equitable distribution, held September 20, 1995, husband remained

in default of the court's orders.    At that time, the court

awarded wife a divorce and proceeded with equitable distribution.

It took the issue of permanent spousal support under advisement,

however, stating, "[t]he problem is, the Court is not confident

of what [husband's] job is, what his present income is to try to

make any decision on the issue of permanent spousal support."
        A hearing was finally held on the issue of permanent spousal

support in February 1996.    Following the hearing, the court

imputed income to husband and ordered him to pay $1,000 per month

in permanent spousal support, commencing on March 1, 1996.      In

its order, the court made the following finding:
          Upon the evidence heard, the Court finds that
          [husband] voluntarily left his employment at
          Sears and thereby knowingly and voluntarily
          decreased his earnings and that income should
          be imputed to him. The Court finds that
          [husband] has an earning capacity of $8,025
          per month, or $96,300 per year, and will
          impute to [him that amount] for spousal
          support purposes. The Court finds that
          [wife] earns approximately $36,500 per year.


        The court further found husband in arrears for temporary

support payments from March 1, 1995 to February 29, 1996.       The

court ordered husband to pay the full amount of temporary

support, $4,893 per month, through September 20, 1995, and

modified temporary support to $1,000 per month effective that

date.



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                                II.

     On appeal, we view the evidence and all reasonable

inferences therefrom in the light most favorable to wife, the

prevailing party below.   Alphin v. Alphin, 15 Va. App. 395, 399,

424 S.E.2d 572, 574 (1992).   We presume that the trial court

based its decision on the evidence presented and properly applied

the law, Williams v. Williams, 14 Va. App. 217, 221, 415 S.E.2d

252, 254 (1992), and we will not disturb the trial court's

judgment unless it is plainly wrong or without evidence to

support it.   Jennings v. Jennings, 12 Va. App. 1187, 1189, 409

S.E.2d 8, 10 (1991).

     In determining an award of spousal support, 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); Code § 20-107.1(1).
          A reduction in income resulting from a
          voluntary employment decision does not
          require a corresponding reduction in the
          payor spouse's support obligations, even if
          the decision was reasonable and made in good
          faith. . . . The trial court, in determining
          whether to award support and the amount
          thereof, may consider earning capacity as
          well as actual earnings in fashioning the
          award so long as it applies "the
          circumstances in existence at the time of the
          award."

Stubblebine v. Stubblebine, 22 Va. App. 703, 708, 473 S.E.2d 72,

74 (1996) (en banc) (quoting Payne v. Payne, 5 Va. App. 359, 363,

363 S.E.2d 428, 430 (1987)); see also Antonelli v. Antonelli, 242
Va. 152, 156, 409 S.E.2d 117, 119-20 (1991) (risk of success in



                               - 3 -
pursuing employment change borne by obligor).

     The position husband held at Sears, which paid him $8,025

per month, was "eliminated" due to corporate "downsizing."     Sears

offered husband another position where he would continue to earn

$8,025 for an undetermined period.      Husband stated that he was

overqualified for the new position, which would have required him

to relocate to Minnesota and work primarily in North and South

Dakota.   Instead, husband opted for a severance package from

Sears and left in March 1994.
     Within two months husband moved to Nashville.      He rejected

an offer of employment from a firm in New York City which would

have paid him $102,000 per year, and he remained unemployed until

July 1994, when he began working for a small company in

Nashville.   Husband purchased a portion of the company to become

a part-owner.   At the time, the company had "significant

outstanding receivables that were not being collected and revenue

was off significantly."    Husband and his business partners agreed

not to be reimbursed for expenses they incurred on behalf of the

business in order to keep the company "afloat."     The company

dissolved in March 1995.

     The evidence in this case supports the trial court's

imputation of income.   Husband's unemployment and subsequent

underemployment was voluntary and unreasonable.     While under a

court order to pay a certain sum for support, husband declined a

transfer within Sears that would have paid him his then current




                                - 4 -
salary for an undetermined time, with no available option for

continued employment.    Although husband testified that he sent

out "over a thousand resumes, [and] worked with executive search

firms all over the country," the record contains no other

evidence of such efforts to find employment.    The trial court was

entitled to infer that husband's decision to relocate to

Nashville was not a legitimate career move.

     Moreover, husband forwent a job paying nearly $100,000 per

year for a risky venture in a small company soon to be bankrupt.

Regardless of the "reasonableness" of his decision, husband bore

the risk of success, not wife.     See Antonelli, 242 Va. at 156,

409 S.E.2d at 119-20.

     Husband also argues that the imputation of income violates

the principle that support awards are to be based on present

conditions, not future circumstances.    He argues that by imputing

income to him, the court has improperly considered an uncertain

future event--the possibility that he will again reach the

earning capacity he achieved at Sears.    This argument is

misplaced.    In imputing income, the court considered an amount it

considered husband was presently able to earn.

                                 III.

     Husband contends that the trial court erred in retroactively

modifying his temporary support obligation.    Code § 20-112

provides:
             No support order may be retroactively
             modified, but may be modified with respect to
             any period during which there is a pending


                                 - 5 -
          petition for modification, but only from the
          date that notice of such petition has been
          given to the responding party.


Husband contends that Code § 20-112 required the court to modify

the temporary support award effective May 1, 1995, the date he

filed his petition to reduce temporary support.   We disagree.

The statute does not require a retroactive modification to take

effect on that date.   To the contrary, the statute plainly states

that the order may be retroactively modified "with respect to any

period during which there is a pending petition."

     Accordingly, the trial court's decision is affirmed.

                                                         Affirmed.




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