Opinion
Record No. 1954-91-4
December 1, 1992
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY JACK B. STEVENS, JUDGE.
Frances F. Rogala (Emily K. Swartz; Kelly Dennis; Rogala Strum; Haas Dennis, on briefs), for appellant.
Reid F. Trautz (Grenadier, Davis Simpson, on brief), for appellee.
Present: Chief Judge Koontz, Judges Barrow and Willis.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
This appeal raises three issues: (1) Did the trial court err in imputing to the appellant, Mr. Brisach, $40,000 income over and above his retirement pay? (2) Did the trial court comply with Code §§ 20-107.1 and 20-107.2 when it awarded spousal and child support, and did it err in failing to provide for an adjustment in child support upon Amy Brisach's graduation from high school in June 1992? (3) Did the trial court err in making equitable distribution of the parties' personal property?
Mr. and Mrs. Brisach were married in 1969 and were divorced by decree entered October 4, 1991. At the time of the divorce, they had two minor children. In 1988, Mr. Brisach, then fifty-two years old, was forced to retire after serving twenty-eight years in the military. He received $45,000 per year retirement pay plus $294 a month in V.A. disability benefits. Without Mrs. Brisach's agreement, he chose not to undertake further employment, but to stay home, keep house and spend time with the parties' children. The parties' separation agreement provided that Mrs. Brisach would receive fifty percent of the portion of Mr. Brisach's gross monthly non-disability retirement pay that accrued during the marriage. This works out to thirty-four percent of his retirement pay.
The trial court awarded Mrs. Brisach $600 per month spousal support and $1,217 per month child support. This award was based upon the imputation to Mr. Brisach of $40,000 per year income in addition to his retirement pay. The court denied Mr. Brisach's claim that some of the parties' assets were his separate property.
Mrs. Brisach contends that the issues raised by Mr. Brisach are barred by Rule 5A:18. However, we find that Mr. Brisach sufficiently brought these issues to the trial court's attention. See Lee v. Lee, 12 Va. App. 512, 404 S.E.2d 736 (1991).
Mr. Brisach first contends that the trial court erred in imputing to him $40,000 per year income, in addition to his retirement pay of $45,000. We disagree. In determining spousal and child support, the trial court must consider the earning capacities of the parties. Code §§ 20-107.1 and 20-108.1.See Srinivasan v. Srinivasan, 10 Va. App. 728, 396 S.E.2d 675 (1990); Farley v. Liskey, 12 Va. App. 1, 401 S.E.2d 897 (1991);Hur v. Virginia Dep't. of Social Services, 13 Va. App. 54, 409 S.E.2d 454 (1991). The court "must look to current circumstances and what the circumstances will be `within the immediate or reasonably foreseeable future,' not to what may happen in the future." Srinivasan, 10 Va. App. at 735, 396 S.E.2d at 679.
The trial court found that Mr. Brisach's pre-retirement income was $80,000. His retirement pay of $45,000 was insufficient to maintain the family on its pre-retirement level. He was fifty-two years old, an age at which most people are still employed. His thirty percent service-connected disability did not prevent his obtaining employment. Over his wife's objection, he chose to remain unemployed. He was capable of earning between $40,000 and $60,000 per year. He had made no genuine efforts to seek and gain employment. He was voluntarily unemployed despite his family's need for the income his employment would have generated. These findings are supported by evidence heard ore tenus before the trial court and will not be disturbed on appeal. See Schoenwetter v. Schoenwetter, 8 Va. App. 601, 383 S.E.2d 28 (1989).
The trial court's findings supported its imputation of $40,000 per year income to Mr. Brisach. The spousal and child support awards, based upon that imputation, were in compliance with the requirements and standards of Code §§ 20-107.1 and 20-108.1. We find no error in those awards.
Mr. Brisach next contends that the trial court erred in failing to provide for an adjustment in child support upon Amy Brisach's graduation from high school in June 1992. We disagree. It is the payor spouse's obligation to seek modification when a
The judgment of the trial court is affirmed.
Affirmed.