The Court of Appeals upholds a refusal to impute income to a 62-year-old retiree who had earned about $150,000 until four years earlier, and is "an active volunteer," in Collins v. Leeds, published, 5/29/18. Husband, a Navy retiree, had worked for Accenture and then as a civilian for the Navy, voluntarily retired from the government at 58, and not looked for employment after that. But the appellant had not offered any other evidence of current earning capacity. "wWife presented no evidence of employment positions currently available to husband or the income he could make in those positions based on his present circumstances." At the time of the trial, "his security clearances had expired, he had not worked in approximately four years, and he was approaching the age when many individuals retire."
The Court points out that the income used for imputation in Stubblebine (1996) had been just five months before the trial, and that it had reversed an imputation based on income just over one year before trial in Harber v. Harber (unpublished 2008). It also says that the Stubblebine imputation was upheld not because of the payor's vigorous unpaid work, which showed only his "physical and mental capacity to be gainfully employed," but because of his recent actual earnings.
Wife also appealed the trial court's alleged failure to consider $311,000 in recent fruitless legal expenses that affected her ability to make ends meet. She had sued a physical therapist for injuring her, and lost at every level, spending about $110,000. She still owed expert witnesses $20,500. She had spent $87,000 unsuccessfully suing her divorce lawyer for malpractice. The other $100K+ was spent in abortive litigation about marital assets several years after the divorce. Wife had translated these expenses into $6,000 per month on her income-expense sheet, but the trial court disregarded them because they were past, not current, expenses.
Wife argues that the trial court was required to consider her “financial resources” pursuant to Code § 20-107.1(E)(1), and her financial resources were “depleted by the hundreds of thousands of dollars in recent litigation costs.” She further argues that, because husband did not produce an expert witness to testify that the lawsuits she filed were frivolous or that the expenses she incurred were unreasonable, the legal expenses should have been included by the trial court as part of her total monthly expenses.
As the party seeking a modification of the spousal support or, as in this case, additional spousal support following the termination of the initial support period, wife bore the burden of showing, “in addition to a material change in circumstances, that the change ‘warrants a modification of support.’” Driscoll v. Hunter, 59 Va. App. 22, 33, 716 S.E.2d 477, 482 (2011) ... Since wife bore the burden of proving the legitimacy and need for these expenses and of their impact on her - 12 - current financial need, the trial court did not abuse its discretion in excluding the expenses incurred in these legal proceedings, which wife repeatedly – and unsuccessfully – chose to pursue.
Fees: "Because wife’s appeal is so lacking in merit, we grant husband’s request for a reasonable amount of appellate attorney’s fees."