Donnell v. Donnell, 20 Va. App. 37, 455 SE2d 256, 9 VLW 1162 (3/21/95)The concept of income imputation does have its limits, the Court of Appeals announces as it reverses an Arlington Circuit Court decision that used an incarcerated husband's $55,000.00 per year "earning capacity" to justify a vastly disproportionate support and property division award to the wife.
Facing imprisonment, the husband had taken early retirement which reduced his monthly income from $4,734 to $1,987. The Court of Appeals held that the record did not support the $75,000 equitable distribution monetary award to the wife. It also noted that the trial court had required the husband to give the wife half of his pension while receiving none of hers, give her his $75,000 interest in the marital residence, and then from his $1,987 per month pension payments pay his child support of $685 and therapy costs of $86 (leaving $222.50 per month) and then pay wife's attorney's fees of $10,000, commissioner's fees of $450 and court reporter's fees of $632. Maybe the early retirement from CIA was a "voluntary act," but by doing it the husband assured that there would be an income of $1,987.00 coming in per month instead of zero. Husband had been convicted of having sex with the parties' daughters (continuing till one of these minors was age 21), but his punishment for that is the prison term. Awards based on "earning capacity," the Court points out "must be based upon circumstances as they exist at the time of the award." .