COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Frank 

WILLIAM ALBERGER 

 MEMORANDUM OPINION*

v. Record No. 2527-98-4 PER CURIAM 

 JUNE 15, 1999 

JOYCE LEE ALBERGER 

 FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA 

Donald M. Haddock, Judge 

 (Gwena Kay Tibbits; Law Offices of Gwena Kay 

Tibbits, on briefs), for appellant. 

 (Michael A. Ward; Gannon, Cottrell & Ward, 

P.C., on brief), for appellee. 

 William Alberger (husband) appeals the final decree of 

divorce entered by the circuit court. Husband contends that the 

trial court erred by (1) determining the amount of child support 

by imputing income to him, failing to impute income to Joyce Lee 

Alberger (wife), and requiring him to pay private school 

tuition; (2) misapplying the factors set out in Code 

§ 20-107.3(E) when granting wife a monetary award; (3) requiring 

husband to pay debts associated with the marital residence until 

the sale of the residence; (4) requiring husband to pay any 

unsecured joint debts not satisfied by the proceeds of the sale 

of the marital residence; (5) not awarding husband the marital 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication.
residence; and (6) not crediting husband with payments made on 

the marital residence during the parties' separation. Upon 

reviewing the record and briefs of the parties, we conclude that 

this appeal is without merit. Accordingly, we summarily affirm 

the decision of the trial court. See Rule 5A:27. 

 On appeal, "we view the evidence and all reasonable 

inferences in the light most favorable to the prevailing party 

below . . . . 'The burden is on the party who alleges 

reversible error to show by the record that reversal is the 

remedy to which he is entitled.'" Lutes v. Alexander, 14 Va. 

App. 1075, 1077, 421 S.E.2d 857, 859 (1992) (citation omitted). 

Child Support

 "The starting point for determination of each parent's 

child support obligation is the amount calculated using the 

schedule found in Code § 20-108.2(B); however, that amount is 

subject to adjustment based on the factors found in Code 

§ 20-108.1." Brody v. Brody, 16 Va. App. 647, 650, 432 S.E.2d 

20, 21 (1993). Among the relevant factors which the trial court 

may consider when deviating from the guideline amount are income 

imputed to a party who is voluntarily unemployed or voluntarily 

underemployed, and the parties' respective earning capacity, 

obligations and needs, and financial resources. See Code 

§ 20-108.1(B)(3) and (7). When the imputed income and the 

resulting child support are "supported by the evidence and the 

trial judge has not otherwise abused his or her discretion, the 

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deviation . . . will be upheld on appeal." Richardson v. 

Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991). 

 The evidence established that husband earned in excess of 

$130,000 each year between 1993 and 1997. Although husband was 

employed in a law firm at the time of the hearing, he was 

leaving his employment at the end of August 1998. He admitted 

that he was leaving voluntarily, that he had made few attempts 

to seek employment with another firm, and that he planned to 

open his own office. He testified that he would be bringing his 

clients with him and that in each of his employment changes in 

the past, "[w]hen I've left, the clients have – have come with 

me, and – and they will do so." He also testified that one 

client would pay $7,500 for four months, and another between 

$5,000 and $7,000 a month. 

 Husband argued that he was not attempting to avoid his 

obligation to support his child. Nonetheless, he was not free 

to "make career decisions that disregard the needs of his 

dependents and his potential obligation to them, and 'the risk 

of his success at his new job [is] upon [him], and not upon [his 

child].'" Auman v. Auman, 21 Va. App. 275, 279, 464 S.E.2d 154, 

156 (1995) (citation omitted). Here, the evidence indicated 

that husband's income had been above, and in some years well 

above, $130,000 for each of the last five years. While the 

trial court recognized that husband’s circumstances were 

fluctuating, we cannot say it erred by imputing to husband a 

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level of income well within husband’s most recent earning 

history. "Where a parent is 'voluntarily unemployed or 

voluntarily underemployed' a trial court may impute income based 

on evidence of recent past earnings." Brody, 16 Va. App. at 

651, 432 S.E.2d at 22. 

 Similarly, while the evidence indicated that wife's income 

would increase if her position became permanent, we find no 

error in the trial court's decision to use wife’s actual 

earnings at the time of the hearing, rather than to impute to 

her a potential increase in earnings. 

 Finally, the parties agreed that their son should continue 

to attend private school. The trial court found that husband 

was in the better position to pay for this expense. We find no 

abuse of discretion in the trial court’s decision to require 

husband to bear the cost of the private school tuition. 

Equitable Distribution

 Husband's remaining issues challenge the trial court's 

equitable distribution decision. "Fashioning an equitable 

distribution award lies within the sound discretion of the trial 

judge and that award will not be set aside unless it is plainly 

wrong or without evidence to support it." Srinivasan v. 

Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990). 

"Unless it appears from the record that the trial judge has not 

considered or has misapplied one of the statutory mandates, this 

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Court will not reverse on appeal." Ellington v. Ellington, 8 

Va. App. 48, 56, 378 S.E.2d 626, 630 (1989). 

 Husband contends that the trial court erred in its 

application of the Code § 20-107.3(E) factors when making its 

monetary award of $15,000 to wife. We disagree. The trial 

court's opinion letter set out in detail the factors and 

evidence considered by the court. The court noted, among other 

factors, that husband made the greater monetary contributions to 

the family, that he paid mortgage and other expenses during the 

separation, and that he paid the college expenses for wife and 

her daughter. Based upon the evidence submitted to and relied 

upon by the trial court, husband was awarded his IRA, life 

insurance, and bank accounts with a value of $67,379, while wife 

received her accounts totaling $153. Husband owed over $70,000 

in his separate unsecured debt, while wife owed over $36,000. 

The trial judge thoroughly examined the evidence and considered 

the required factors before determining the award. In reviewing 

the award, "'we rely heavily on the trial judge's discretion in 

weighing the particular circumstances of each case. Only under 

exceptional circumstances will we interfere with the exercise of 

the trial judge's discretion.'" Gamble v. Gamble, 14 Va. App. 

558, 573, 421 S.E.2d 635, 644 (1992) (quoting Aster v. Gross, 7 

Va. App. 1, 8, 371 S.E.2d 833, 837 (1988)). We cannot say that 

the decision to grant wife a monetary award of $15,000 was an 

abuse of discretion. 

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 Husband also contends the trial court erred by requiring 

him to pay the unsecured joint debts left unsatisfied after the 

sale of the marital residence. We find no error. At the time 

of the hearing, the parties' unsecured joint debt totaled over 

$33,000, while their equity in the marital residence was 

$40,000. The amount of unsecured joint debt for which husband 

would be solely responsible was unascertainable at the time of 

the trial. However, despite the fact that husband's employment 

was less certain than that of wife, he continued to have the 

ability to earn substantially more than she. Husband has failed 

to demonstrate that the trial court abused its discretion by 

assigning remaining unsecured joint debts to him. 

 Husband contends that the trial court failed to give him 

credit for his post-separation payments towards the mortgage on 

the marital residence. The record demonstrates that the trial 

court expressly considered those payments. The court was not 

required under Code § 20-107.3 to assign a dollar-for-dollar 

credit to husband for his payments. See von Raab v. von Raab, 

26 Va. App. 239, 249-50, 494 S.E.2d 156, 161 (1997). 

 Husband also contends that the trial court erred by 

requiring him to pay all debts associated with the marital 

residence until sold. While the trial court acknowledge that 

"[wife’s] prospects appear more certain that [husband's]," the 

evidence established that husband continued to have the greater 

relative earning capability. We find no error in the trial 

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court's decision to require husband to continue to pay the 

expenses for the marital residence until its sale. 

 Finally, husband contends that the trial court erred by 

requiring the sale of the marital residence. As noted above, 

the marital residence was a means by which the parties could use 

a joint asset to pay unsecured joint debt. By directing that 

the sale proceeds be applied to existing joint debts, the trial 

court exercised its statutory authority to apportion marital 

debts. See Code § 20-107.3(C). Both the evidence and the law 

support the trial court's decision. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

Affirmed.

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