COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Senior Judge Overton 

THOMAS MIKLOVIC 

 MEMORANDUM OPINION*

v. Record No. 0271-02-4 PER CURIAM 

 AUGUST 6, 2002 

DEBORAH L. NAPIER 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

Thomas D. Horne, Judge 

 (Craig E. White; Sevila, Saunders, 

 Huddleston & White, P.C., on brief), for 

appellant. 

 No brief for appellee. 

 Thomas Miklovic, appellant, appeals a decision of the trial 

judge imputing income to appellant for purposes of determining his 

child support obligation. Upon reviewing the record and opening 

brief, we conclude that this appeal is without merit. 

Accordingly, we summarily affirm the decision of the trial judge. 

See Rule 5A:27. 

BACKGROUND

 Appellant and Deborah Napier, appellee, were divorced in 

1999. On September 10, 2001, appellant's employer terminated his 

employment. On that same day, appellant filed a motion in the 

trial court to modify spousal and child support. Based upon 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
evidence presented at a hearing held on October 31, 2001, the 

trial judge entered an order on November 5, 2001 imputing income 

to appellant for purposes of calculating child support. Appellant 

filed objections and a motion to reconsider, and the trial judge 

entered an order suspending and tolling the time period pursuant 

to Rule 1:1. On December 4, 2001, appellant presented further 

argument and evidence on the issue, and the trial judge modified 

several aspects of his earlier rulings. However, the trial judge 

did not modify his ruling on the imputation of income to 

appellant. The trial judge entered an order on January 4, 2002, 

imputing $5,518 per month income to appellant for the purposes of 

calculating child support. Appellant appeals that order. 

FACTS

 At the hearing held on October 31, 2001, appellant offered 

evidence that his sole source of income was his unemployment 

benefits of $1,595 per month. Appellant also testified that he 

had searched for employment through internet employment agencies. 

Wife argued that appellant had other sources of income and assets, 

and she offered into evidence a mortgage application which she 

asserted showed appellant's income and other assets. Appellant 

contended that the mortgage application contained financial asset 

information concerning his brother, who was a co-borrower on the 

application. Wife also asserted that appellant had not "lifted 

one finger" since he lost his job and that he had a substantial 

retirement account. 

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 Appellant's monthly income prior to his unemployment was 

$7,113. The trial judge ruled that appellant's prior monthly 

income should be imputed to him for the purposes of calculating 

child support. Thus, the trial judge imputed $5,518 per month 

income to appellant. 

 At the December 4, 2001 motion for reconsideration, appellant 

argued that, in his earlier ruling, the trial judge failed to 

state on the record the factors he considered in deviating from 

the presumptive amount of child support. The trial judge then 

articulated his reasons for imputing income to appellant. The 

trial judge stated: 

 One, [appellant] has a history of 

frequent job changes. But in all those job 

changes he has been employed at a salary at 

a given level of income, and that income is 

roughly the income that was imputed to him 

in this case. 

 Secondly, he has not been out of work 

for a long period of time. I found also his 

testimony to be lacking in credibility in 

this case with respect to his efforts to 

find employment. I found that the evidence 

that he did present to be really of little 

value to the court in assessing his income 

and what he should be earning at this point 

in time, if anything. 

 Also, I noted the papers that were 

filed and exhibits that were filed by 

[appellee] in this case with respect to the 

mortgage application, what he stated on the 

mortgage application his income to be in 

this case, and any independent resources 

that he might have with respect to income, 

although that's really of little note. 

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 And the court in sum found that 

[appellee] has borne the burden of--in this 

case--of showing that income should be 

imputed to [appellant], and that he could be 

working at the salary that has been imputed 

to him, which has been his historical salary 

of late in this case. 

 These findings were included in the January 4, 2002 court 

order. The trial judge also indicated that the presumptive 

guideline child support obligation was $743 per month, and 

appellant does not challenge this figure. The trial judge 

imputed income of $5,518 per month to appellant, and he ordered 

appellant to pay $2,020 per month in child support. 

ANALYSIS

 "The moving party in a petition for modification of support 

is required to prove both a material change in circumstances and 

that this change warrants a modification of support." 

Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 

28, 30 (1989). "The decision to impute income is within the 

sound discretion of the trial court and its refusal to impute 

income will not be reversed unless plainly wrong or unsupported 

by the evidence." Blackburn v. Michael, 30 Va. App. 95, 102, 

515 S.E.2d 780, 783-84 (1999). The trial judge must "'consider 

the [parties'] earning capacity, financial resources, education 

and training, ability to secure such education and training, and 

other factors relevant to the equities of the parents and the 

children.'" Id. at 102, 515 S.E.2d at 784 (citation omitted). 

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 A reduction in income resulting from a 

voluntary employment decision does not 

require a corresponding reduction in the 

payor spouse's support obligations, even if 

the decision was reasonable and made in good 

faith. Accordingly, a "court may impute 

income to a party who is voluntarily 

unemployed or underemployed." The trial 

court, in determining whether to award 

support and the amount thereof, may consider 

earning capacity as well as actual earnings 

in fashioning the award so long as it 

applies "the circumstances in existence at 

the time of the award." 

Stubblebine v. Stubblebine, 22 Va. App. 703, 708, 473 S.E.2d 72, 

74 (1996) (en banc) (citations omitted). 

 Where . . . the father seeks a 

reduction in the amount of payments for the 

support and maintenance of his minor 

children because of a change in his 

financial condition, he must make a full and 

clear disclosure relating to his ability to 

pay. He must also show that his lack of 

ability to pay is not due to his own 

voluntary act or because of his neglect. 

Hammers v. Hammers, 216 Va. 30, 31-32, 216 S.E.2d 20, 21 (1975). 

 Although appellant's employment was involuntarily 

terminated on September 10, 2001, the trial judge specifically 

stated that he did not find credible appellant's testimony 

concerning his efforts to find employment after his termination. 

Thus, from the evidence presented, the trial judge could find 

that, since his termination, appellant has remained voluntarily 

unemployed. Appellant is an articulate, educated professional, 

with marketable skills evidenced by recent, well-compensated 

employment. Indeed, appellant's resume, which was admitted into 

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evidence as an exhibit, indicates that he is seeking a position 

in software engineering in the "embedded, 

data/telecommunications field" with a desired salary of $92,000 

per year. The evidence did not show that appellant's inability 

to pay child support was "not due to his own voluntary act or 

because of his neglect" in failing to obtain employment. See

id. In addition, the trial judge based the amount of imputed 

income on the amount of income appellant was earning immediately 

prior to his termination. "Where a parent is 'voluntarily 

unemployed or voluntarily underemployed' a trial court may 

impute income based on evidence of recent past earnings." Brody 

v. Brody, 16 Va. App. 647, 651, 432 S.E.2d 20, 22 (1993) 

(citation omitted). 

 Furthermore, although appellant argues the trial judge 

misapplied the burden of proof in this case, the trial judge 

specifically found that appellee "has borne the burden . . . of 

showing that income should be imputed to [appellant]." The 

party seeking to impute income has the burden of proof. Id.

 Appellant also contends the record does not support the 

trial judge's finding that he had a history of frequent job 

changes. Appellant's resume indicates that he has been employed 

at three different companies since 1998. From that evidence, 

the trial judge could conclude that appellant has a history of 

frequent job changes. Moreover, the evidence showed that 

appellant is a trained professional, with viable skills, over 

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twenty years of experience in the field of software engineering, 

and a recent history of well-compensated employment. Therefore, 

the trial judge had sufficient evidence to impute income to 

appellant. Accordingly, we affirm the trial judge's decision. 

 Affirmed. 

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