Opinion
Record No. 0237-92-4
February 9, 1993
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY BENJAMIN N.A. KENDRICK, JUDGE
(Lorelei Haig, on brief), for appellant. Appellant submitting on brief.
(Stefan C. Long, on brief), for appellee. Appellee submitting on brief.
Present: Judges Benton, Barrow, and Coleman
Argued at Alexandria, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Wanda Kleinsmith appeals from a child support order. She contends that the child support order must be reversed because the trial judge erred (1) in determining the presumptive amount of child support, (2) in imputing income to her, (3) in failing to make written findings concerning imputing income, and (4) in requiring her to execute documents that would allow Adrian Jan Dykhuis, Jr., to take federal and state income tax deductions for their child. We reverse the order and remand for reconsideration.
I.
By a property settlement agreement, Dykhuis agreed to pay Kleinsmith child support in the amount of $200 per month. A decree of divorce entered on December 29, 1983, affirmed, ratified and incorporated the agreement. In 1991, Kleinsmith filed a petition for increased child support. Dykhuis responded that an increase was not warranted and filed a motion to increase visitation and for other relief. At the evidentiary hearing, Kleinsmith, the custodial parent of the parties' thirteen year old daughter, testified that the expenses associated with the child's support had increased substantially since 1983 and that the original child support amount had not been modified. The evidence proved Kleinsmith had remarried and lived in a foreign country where her current husband had been assigned. Kleinsmith stated that she was currently unemployed because government regulations limited her employment opportunities. She described efforts she had made to gain employment. According to her testimony, her only earnings were interest income of approximately $320 per month. Dykhuis testified that his annual salary was $43,509 and that he received additional compensation of $2,000 annually as an active military reservist.
Kleinsmith's counsel submitted to the trial judge two documents entitled "Support Guidelines Worksheet." One reflected application of the child support guidelines in Code § 20-108.2, using Kleinsmith's earnings of $320 per month and Dykhuis's combined earnings of $3,792 per month. The trial judge imputed an undisclosed amount of income to Kleinsmith and found that the presumptive amount of monthly child support payable by Dykhuis was $487.50 per month. The trial judge ordered Kleinsmith to annually execute documents necessary for Dykhuis to take the deductions for their child on Dykhuis' federal and state income tax returns.
II.
"The starting point . . . for determining the child support obligation of a party, whether initially or at a modification hearing, is to compute the presumptive amount using the schedule found in Code § 20-108.2(B)." Watkinson v. Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 473 (1991). "This amount is determined according to a schedule that varies according to the combined gross income of the parties and the number of children involved." Richardson v. Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991). "'Gross income' used to enter the Schedule of Monthly Basic Child Support Obligations is carefully defined and includes only actual income." Farley v. Liskey, 12 Va. App. 1, 5, 401 S.E.2d 897, 899 (1991).
The evidence before the trial judge established that Kleinsmith's only actual income was interest income in the amount of $320 per month and that Dykhuis' gross monthly income from his civilian employment and active reserve pay totalled $3,792. The presumptive child support obligation calculated pursuant to Code § 20-108.2 yields the amount of $519.80 payable by Dykhuis. The trial judge, however, found the presumptive amount of Dykhuis' child support obligation to be $487.50. It appears from the record that the presumptive amount determined by the trial judge may have been based in part upon income imputed to Kleinsmith. However, this Court has clearly stated that "[i]mputed income is a factor which may be used to rebut the presumptive amount only after the presumptive amount is determined." Farley, 12 Va. App. at 5, 401 S.E.2d at 899. Dykhuis concedes that the trial judge erred in computing the presumptive amount and agrees that the order must be vacated and this case must be remanded to the trial judge to determine correctly the presumptive amount.
III.
Kleinsmith also contends that the trial judge erred in imputing income to her and that the trial judge failed to make written findings in support of the decision to impute income. Dykhuis argues that the trial judge's findings properly imputed income and were adequate to satisfy the requirement of providing written findings as required by Code § 20-108.2(A).
Neither party contests the requirement for written findings. Indeed, this Court has stated:
[A]fter determining the presumptive amount of support according to the schedule, the trial [judge] may adjust the amount based on the factors found in Code §§ 20-107.2 and 20-108.1. Deviations from the presumptive support obligation must be supported by written findings which state why the application of the guidelines in the particular case would be unjust or inappropriate. If the applicability of the factors is supported by the evidence and the trial judge has not otherwise abused his or her discretion, the deviation from the presumptive support obligation will be upheld on appeal.
Richardson, 12 Va. App. at 21, 401 S.E.2d at 896.
The trial judge made written findings stating why the application of the guidelines in the particular case would be inappropriate. The trial judge found that:
[A]fter taking into consideration the testimony of the parties, the evidence presented, and all of the factors as set forth in Section 20-107.2 and 108.1.B, and "such other" factors, including but not limited, to the distance of the child from the defendant as a result of the mother's residence in Moscow, Russia, the fact that the complainant is living with the child rent free in U.S. Government provided housing, the fact that the U.S. Government [by which the complainant's husband is employed] is assisting in defraying the cost of food and other items by supplemental payments therefor, the imputed income of the complainant, the travel expenses in order to provide the defendant with visitation of the child, . . . the rebuttable presumptive amount . . . has been rebutted and for the above reasons . . . the application of the guidelines in this case is unjust and inappropriate. . . ."
The five factors the trial judge considered in deviating from the presumptive child support obligation generally are appropriate under Code §§ 20-107.2 and 20-108.1. In addressing the question of imputation of income, this Court has held that "[t]he court has power to find that the unemployment was voluntarily assumed and impute income." O'Brien v. Rose, ___ Va. App. ___, ___, 420 S.E.2d 246, 248 (1992) (citingAntonelli v. Antonelli, 242 Va. 152, 155-56, 409 S.E.2d 117, 119-20 (1991)). When the trial judge exercises that power, "[t]he record, however, must make clear both the fact of such a holding and the evidence substantiating it." Id. In addition, the trial judge must "make explicit findings of fact amenable to appellate review." Richardson, 12 Va. App. at 22, 401 S.E.2d at 896. We agree with Kleinsmith that the statement in the order that income was imputed to her was merely a conclusory statement. That conclusory statement does not satisfy the finding requirement. See id. at 21-22, 401 S.E.2d at 896.
IV.
Kleinsmith contends and Dykhuis concedes that the trial judge lacked authority to order Kleinsmith to execute documents giving Dykhuis federal and state income tax dependency deductions for their child.
V.
For the reasons stated, we reverse the determination of the amount of child support and remand for a calculation of the statutory presumptive amount and reconsideration of the amount of child support. We also reverse the ruling that Kleinsmith shall execute documents giving Dykhuis dependency deductions for their child on his federal and state income tax returns.
Reversed and remanded.