                     COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia


DIANA DAMSCHRODER
                                            MEMORANDUM OPINION * BY
v.   Record No. 0889-98-2                  JUDGE SAM W. COLEMAN III
                                                APRIL 27, 1999
JOHN WALLACE PATTERSON


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Randall G. Johnson, Judge

          Robert W. Partin (Richard L. Locke;
          Mezzullo & McCandlish, on brief), for
          appellant.

          Mary Burkey Owens (Cowan & Owen, on brief),
          for appellee.


     John Wallace Patterson petitioned the trial court to reduce

his spousal support obligation to his former wife Diana

Damschroder, based on a reduction in his earnings.    After ore

tenus hearings, the trial court determined that Patterson lost his

employment involuntarily but was voluntarily underemployed.

Accordingly, the trial court imputed income to Patterson.    Based

on its findings, the trial court ordered a reduction in spousal

support from $5,000 to $2,000 per month.    On appeal, Damschroder

contends (1) that the trial court erred in determining that

Patterson’s unemployment was involuntary, (2) that a finding of


    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
involuntary underemployment required the court to deny Patterson’s

petition for reduction in spousal support obligations, and (3)

that the trial court erred by imputing an income not supported by

the evidence.   Finding no error, we affirm the trial court.

                            I.   BACKGROUND

     On appeal, we view the evidence and all reasonable inferences

in the light most favorable to the prevailing party.      See Alphin

v. Alphin, 15 Va. App. 395, 399, 424 S.E.2d 572, 574 (1992).      At

the time of the final divorce decree, Patterson was an equity

partner in a large Richmond law firm earning $160,000 per year.

The trial court awarded spousal support to Damschroder at $5,000

per month.   Soon after the divorce, the law firm’s executive

committee informed Patterson of their intention to terminate him

based on his low productivity.    In accordance with Patterson’s

employment separation agreement, he continued to collect his usual

monthly pay for one year.

     The managing partner of the law firm testified that he had

communicated concerns about productivity to Patterson before they

decided to terminate him.   With the exception of one or two years

between 1989 and 1995, Patterson’s billable hours were lower than

what the firm considered normal for an equity partner.      However,

when asked, the managing partner could not state that he had ever

explained to Patterson that the firm would end his employment if

he failed to increase his productivity.       Additionally, Patterson

testified that the firm never advised him that he would face

                                 - 2 -
termination if he failed to increase his billable hours.

Patterson testified that the firm’s decision to end his employment

shocked him.

     Shortly after the firm notified Patterson of his termination,

Patterson sought legal employment with one of his larger clients

based in Richmond.   Although the former client never officially

rejected Patterson, Patterson determined that he would likely

receive no offer.    He also sought legal employment through a

Washington, D.C. outplacement firm.     Patterson applied for some

twenty-eight to thirty positions and received no offers.     He

testified that he was willing to go almost anywhere and that he

had actively pursued positions in California and Kazakhstan.      In

the Richmond area, Patterson sought leads from his former clients,

but received none.    Patterson also contacted friends and

classmates, but to no avail.   After being out of work for nearly a

year and having received no offers for legal positions, Patterson

explored other options and chose to open a cigar franchise in

Savannah, Georgia.

     Several months later, Patterson filed a petition seeking a

termination or reduction in his spousal support obligation.       After

hearing evidence ore tenus, the trial judge determined that

Patterson was not voluntarily unemployed.    However, the trial

judge also determined that Patterson failed to show that he fully

exhausted potential employment opportunities in Richmond.    The

judge also determined that Patterson could have found employment

                                - 3 -
with a Richmond firm earning at least half his prior salary and

imputed that amount of income to Patterson.       Accordingly, the

trial judge reduced the spousal support payments to comport with

the imputed income.

                                II.    ANALYSIS

     We will not disturb a trial court’s decision on appeal unless

plainly wrong or without evidence to support it.      See Jennings v.

Jennings, 12 Va. App. 1187, 1189, 409 S.E.2d 8, 10 (1991).

Upon petition of either party, a trial court may alter spousal

support provided there has been a material change of circumstance.

See Code § 20-109.    “The moving party in a petition for

modification of support is required to prove both (1) a material

change in circumstances and (2) that this change warrants a

modification of support.”       Reece v. Reece, 22 Va. App. 368, 373,

470 S.E.2d 148, 151 (1996).       Without question the termination of

Patterson’s employment constituted a material change in

circumstances.   The dispositive issue is whether Patterson’s

change in circumstance warranted a modification of his support

obligation.

                      A.   VOLUNTARY TERMINATION

                           1.    LEGAL STANDARD

     In determining whether an adverse change in circumstances

warrants a diminution in a support obligation, the trial court

must consider, among other things, whether the changed

circumstances arose from the obligor’s voluntary actions.      Where

                                      - 4 -
the changed circumstances result from the obligor’s misconduct or

neglect, the Supreme Court has held the changed circumstances are

the product of the obligor’s voluntary actions.   See Edwards v.

Lowry, 232 Va. 110, 112-13, 348 S.E.2d 259, 261 (1986) (citing

Hammers v. Hammers, 216 Va. 30, 31-32, 216 S.E.2d 20, 21 (1975);

Crosby v. Crosby, 182 Va. 461, 466, 29 S.E.2d 241, 243 (1944)).

For example, where an obligor’s income changed when his employer

terminated him, the change in circumstances did not warrant

modifying the support obligation because the employer fired the

obligor for theft.   See Edwards, 232 Va. at 112-13, 348 S.E.2d at

261.

       Damschroder contends that the trial court misunderstood and

misapplied the proper legal standard.   Damschroder argues that the

trial judge focused solely on the element of misconduct to the

exclusion of negligent or voluntary acts.   We agree with

Damschroder that simply showing that an obligor’s loss of job did

not result from misconduct is insufficient to warrant a change in

the obligor’s spousal support obligation.   However, Damschroder

mischaracterizes the trial judge’s holding and rationale for that

holding.

       Having heard the evidence, the trial judge concluded that

Patterson’s termination was not for misconduct and was not

voluntary.   The trial judge stated that the evidence was in

conflict as to whether Patterson neglected the opportunities he

had to increase his production.   The managing partner testified

                                - 5 -
that Patterson “probably” could have increased his billable hours.

Alternatively, Patterson testified that he had no control over his

billable hours because they rose and fell with the fortunes of his

clients.   The trial judge noted the absence of evidence showing

that Patterson neglected his clients and found that, on the

contrary, the evidence showed that his clients were very satisfied

with his work.   Additionally, there was evidence that Patterson

had never been a “rainmaker” for the firm, and there was no

testimony that he refused or ignored opportunities to solicit new

clients.   Thus, the trial court considered the evidence and

determined that the evidence showed that Patterson had not

neglected his professional activities.

     In his letter opinion, although the trial judge devoted

considerable attention to the difficult issue of whether Patterson

lost his job because of misconduct, he also considered whether

Patterson lost his job due to neglect or other voluntary actions.

Accordingly, we find that the trial court applied the correct

standard in determining whether Patterson’s loss of employment

warranted a change in spousal support.

                        2.   BURDEN OF PROOF

     Damschroder contends that the trial judge erroneously placed

the burden on her to prove that Patterson lost his job due to

misconduct.   As support for her argument, Damschroder states that

Patterson failed to carry his burden of demonstrating that his

termination was involuntary, and therefore, the trial judge must

                               - 6 -
have reached his conclusion based on an erroneous application of

the burden of proof.   We disagree.

     Absent specific evidence to the contrary, we presume that the

trial court based its decision on the evidence presented and

properly applied the law.   See Williams v. Williams, 14 Va. App.

217, 221, 415 S.E.2d 252, 254 (1992).

     The burden is on the moving party to establish that the

change in circumstances was not voluntary.   See Antonelli v.

Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119 (1991).    The

trial judge stated in his letter opinion that he placed the burden

of proof on Patterson, and we find that Patterson produced

sufficient evidence to support the trial judge’s conclusion that

he proved by a preponderance of evidence that his termination was

not voluntary.

     We have previously referred to much of the evidence which

Patterson presented to satisfy his burden of proof.   Patterson

testified that he never refused work, that the firm never informed

him that a failure to increase production would result in

termination, that his billable hours were out of his control, that

firm management had ulterior motives in terminating him, that he

performed substantial administrative and other functions for the

firm, and that the firm’s decision to terminate him came as a

complete surprise.   Although the managing partner warned Patterson

about his low productivity at least twice and opined that

Patterson “probably” could have increased his hours, Patterson

                               - 7 -
produced sufficient evidence to establish that his loss of

employment was not voluntary or the result of wrongful conduct.

                     B.    IMPUTATION OF INCOME

                          1.   Legal Standard

     When a spousal support obligor suffers a reduction in

income resulting from a voluntary employment decision, that

reduction in income will not warrant a corresponding reduction

in the support obligation.      See Stubblebine v. Stubblebine, 22

Va. App. 703, 708, 473 S.E.2d 72, 74 (1996) (en banc).

“Accordingly, a court may impute income to a party who is

voluntarily unemployed or underemployed.”       Id. (internal

quotation marks omitted).      The trial court determined that

Patterson’s loss of employment was involuntary but that

Patterson’s job search in Richmond was insufficient to avoid

imputation of income.     The trial court imputed income equal to

half of Patterson’s prior salary.     Based on the amount of

imputed income, the trial judge calculated the amount to reduce

Patterson’s support obligation.     Damschroder argues that upon

finding that Patterson was voluntarily underemployed it was

error for the court not to dismiss Patterson’s request for a

reduction in support.     We disagree.

     In support of her argument, Damschroder cites Edwards, 232

Va. 110, 348 S.E.2d 259, Antonelli, 242 Va. 152, 409 S.E.2d 117,

and Commonwealth, Dept. of Soc. Services ex rel. Ewing v. Ewing,

22 Va. App. 466, 470 S.E.2d 608 (1996).     In each of the cited

                                  - 8 -
cases, obligor’s request for reduction in support obligations

was denied.    However, in each case, the entire loss of income

resulted from the obligor’s voluntary actions.     Here, the trial

court found that Patterson was involuntarily unemployed but

incurred approximately half the reduction in his income

voluntarily.    The underlying standard reflected in the three

cited cases is that in order to warrant a reduction in his

support obligation, Patterson “must show that his lack of

ability to pay is not due to his own voluntary act or because of

his neglect.”    Hammers, 216 Va. at 31-32, 216 S.E.2d at 21; see

Antonelli, 242 Va. at 154, 409 S.E.2d at 119; Edwards, 232 Va.

at 112-13, 348 S.E.2d at 261; Ewing, 22 Va. App. at 470-71, 470

S.E.2d at 610-11.      Applying this standard, the trial court

reduced Patterson’s support obligation only to the extent that

his reduction in income was voluntarily incurred.       Accordingly,

the trial court applied the proper legal standard.

                  2.    Calculation of Imputed Income

     Based on the record, the trial court determined that it

would be unrealistic to assume that Patterson could have moved

to another firm and maintained the same level of pay he had

previously enjoyed.     However, the court determined that a

Richmond law firm would have paid Patterson at least half of

what he had earned in order to reap the benefits of his

experience and his “very satisfied” clients.     The record upon

which the trial court based that determination included evidence

                                  - 9 -
of Patterson’s age, the nature of his legal expertise, and the

type of clients that he had.   Additionally, there was testimony

that Patterson could have brought to another firm approximately

$50,000 gross receivables, and testimony that the amount of

gross receivables would depend on the particular year, for

example, one client generated business that ranged from $5,000

to $100,000 depending on the year.

     Patterson, who prevailed in obtaining a support reduction,

does not appeal the imputation of income to him of $62,064.

However, Damschroder contends that the evidence does not support

the trial court’s calculation of imputed income.   We disagree.

     A spouse’s entitlement to an award and the amount of that

award are matters committed to the sound discretion of the trial

court.   See Stubblebine, 22 Va. App. at 707, 473 S.E.2d at 74.

In modifying a spousal support order, Code § 20-109 instructs

the trial court to consider the factors set forth in subsection

(E) of Code § 20-107.1.   These include earning capacity,

education, skills, training, and age.    See Code § 20-107.1.    We

find that there was sufficient evidence in the record for the

trial court, by applying the factors of Code § 20-107.1 to

impute $62,064 of income to Patterson.

     In sum, we find that the trial court properly determined

that Patterson lost his job involuntarily and that the trial

court had sufficient evidence to impute $62,064 of income to

Patterson.   Accordingly, we affirm the trial court’s decision

                               - 10 -
reducing Patterson’s spousal support obligation from $5,000 to

$2,000.


                                                        Affirmed.




                             - 11 -
