Some sacred basic principles are forcefully restated by the Court of Appeals in an alimony case wherein it would seem from the opinion that a very undeserving husband very ill-advisedly sought payee imputation against his very deserving wife. Husband, an optometrist in business for himself, was claiming that she could earn as much as $13,000 per year, and when the trial court did not use that number in its alimony calculation, he had appealed. The Court of Appeals goes immediately to such facts as husband having deserted the marriage of 22 years, the wife’s congenital heart condition, her high school education, and the fact that she had not worked – outside the home – during the entire marriage.
(Her heart conditions included dilated cardiomyopathy , left ventricular dysfunction, chronic diastolic function, and ventricular tachycardia.) She’s had four pacemakers implanted, is not computer literate, and has had no vocational training. There was also the usual evidence that husband and wife had agreed at the beginning that she would be a stay-at-home mother as her full time job. And husband argued that this failure to impute was error as a matter of law. The husband’s evidence showed that she could work for an average of $6.00 to $8.00 per hour. The Court said a few laudable things here:
“Underlying husband’s argument is the presupposition that, absent exceptional circumstances, every stay-at-home spouse seeking spousal support must start work outside the home immediately upon the entry of the divorce decree if he or she has any provable income earning capacity. We find no basis for such an inflexible principle in our statutes or case law.”
Then there was a great deal of instructive law laid down, and particularly:
“He cites Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990), for the proposition that a spouse has a presumptive duty to go to work following a divorce if he or she had provable earning capacity. ... Neither Srinivasan nor any other Virginia case has held that, for purposes of calculating spousal support, a stay-at-home spouse capable of working must go to work immediately after the divorce trial or face ... imputation of income.”
Rather, the Court explains, the Virginia cases which did impute income all involved wives who had worked during the marriage, but at some time after separation either took a job below their earning capacity or stopped working altogether. The trial court here gets some high marks for carefully limiting and carefully phrasing its no-imputation ruling. By saying it wouldn’t impute “at this time,” the court below, it is said, left open the possibility of recalculating support should conditions later change. The trial court and the appellate court didn’t much like husband’s further argument that the judge erred by accepting expert testimony as to husband’s earning capacity. It refused to recognize some business expenses he claimed as a reduction of his professional earnings. These were gifts given to his two children in the form of payments from the Subchapter S Corporation, which were characterized as the children’s “wages.” There was, however, no evidence that the kids were bona fide employees, or that they did anything to earn these wages. The trial judge did not have to accept that. The Court of Appeals was careful in its fee award, giving wife an award on this latter business-expense issue, as it was considered wholly meritless, but denying appellate attorneys’ fees on the imputation issue. 23 VLW 435 (9/16/08).