Virginia's Court of Appeals once again favors imputing income to an imprisoned parent, this time reversing a trial court that decided otherwise, in Niblett v. Niblett, published, 12/15/15.
The trial court had found that the father was "voluntarily unemployed" as a result of his voluntary criminal acts, but held that even so, the 1995 case of Donnell v. Donnell, 20 Va. App. 37, barred imputation against an imprisoned felon as "premised upon the occurrence of an uncertain future circumstance". In that case, like this one, the payor was convicted of sexual conduct with minors in his home, and imputation of his previous level of earnings was sought. That "would be speculating as against the requirements of the Jacobs[ v. Jacobs, 219 Va. 993, 995, 254 S.E.2d 56, 58 (1979),] and the Payne[ v. Payne, 5 Va. App. 359, 363, 363 S.E.2d 428, 430 (1987),] case[s].”, the trial court ruled.
But there was evidence of recent past earnings, and the trial court was required to look at it as evidence of current earning capacity, the appeals court says. This is not speculative, because "we are not concerned with what the father might earn upon his release from incarceration. Rather, we are concerned with what the father would have been earning on the date of the hearing but for his voluntary unemployment."
This opinion also quotes a useful standard for proving abuse of discretion:
An abuse of discretion . . . can occur in three principal ways: when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment.
Landrum v. Chippenham & Johnston-Willis Hosps., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011) (alteration in original) (quoting Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)).
Still, the ultimate result in this appeals court opinion is remand, as in Donnell:
although the trial court must consider each of the statutory factors for which evidence is presented, the weight, if any, to give any particular factor in the overall decision lies within the trial court’s sound discretion. Robbins, 48 Va. App. at 481, 632 S.E.2d at 622. Thus, we do not hold that the trial court must deviate from the presumptive guidelines because of the income imputed to father. Rather, we hold that the trial court erred in failing to first consider recent past earnings to calculate the amount of income that should be imputed to father because of his voluntary unemployment. After considering the evidence and the factors, the court may add “‘a just and appropriate amount [to] the amount reflected in Code § 20-108.2,’ accompanied by the requisite written findings,”7 Brooks, 18 Va. App. at 592, 445 S.E.2d at 729 (alteration in original) (quoting Richardson, 12 Va. App. at 20, 401 S.E.2d at 895), or the court may conclude that deviation from the presumptive guidelines is not appropriate in this case.