COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Fitzpatrick 

Argued at Alexandria, Virginia 

GARY SARGENT 

v. Record No. 1981-94-4 OPINION BY 

 JUDGE JOHANNA L. FITZPATRICK 

PATRICIA VAUGHT SARGENT AUGUST 22, 1995 

FROM THE CIRCUIT COURT OF FREDERICK COUNTY 

James L. Berry, Judge 

 Peter W. Buchbauer (Douglas M. Swift, Jr.; James J. 

McGuire; Swift & Buchbauer, P.C., on briefs), for 

appellant. 

 Mark A. Vann (Thomas J. Chasler; Chasler, Adrian and 

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

 Gary Sargent (husband) appeals the trial court's decisions 

on custody, support, and grounds of divorce. He contends that 

the trial court erred in: (1) failing to give adequate 

consideration to the desire of the parties' son, Matthew, to live 

with his father and awarding custody of Matthew to Patricia 

Vaught Sargent (wife); (2) failing to impute income to wife in 

determining child and spousal support; (3) refusing to include an 

earned income tax credit and pendente lite spousal support in 

wife's income for purposes of computing child and spousal 

support; (4) awarding wife a divorce based on separation for more 

than one year; and (5) failing to consider wife's desertion when 

awarding spousal support. Finding no error, we affirm the trial 

court on all issues. 

 BACKGROUND

 The parties were married on March 6, 1976. They had two 
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children, Dustin, born August 16, 1981, and Matthew, born May 16, 

1985. On July 9, 1993, wife filed for divorce on the ground of 

cruelty, and on July 12, 1993, she left the marital home. 

Husband filed for divorce on the ground of desertion on July 26, 

1993.1

 On July 27, 1993, the court appointed a guardian ad litem 

for the two children in connection with the divorce proceeding. 

The guardian filed a report on August 2, 1993 in anticipation of 

the pendente lite hearing scheduled for August 4, 1993, 

recommending that Dustin remain with his father and Matthew 

remain with his mother. In an August 11, 1993 pendente lite

order, the court placed the children in the joint custody of the 

parties, with husband having primary care of Dustin and wife 

having primary care of Matthew. The August 11, 1993 order also 

provided for payment of temporary spousal and child support by 

husband. 

 At a July 29, 1994 final hearing, several witnesses, 

including wife, testified that Matthew preferred to live with his 

father. The guardian ad litem relied on her second, detailed 

report filed July 14, 1994, in which she stated: 

 [Matt] expressed the wish that he live with 

his father, and the guardian is under the 

impression that Matt feels that if he lives 

with him he will have more time to play with 

his cousins (who live nearby) and Dustin. 

* * * * * * * 

 

 1The record in this case was a written statement of facts 

pursuant to Rule 5A:8(c). 
 3 

 Despite Matt's verbalized preference, the 

guardian recommends that Matt remain in the 

physical custody of Mrs. Sargent. The 

guardian feels that Matt is doing well in her 

custody now and that many of Matt's reasons 

about living in his father's house can be 

addressed by expanding visitation, 

particularly in the summer. In addition, it 

is troubling to the guardian that Dustin 

harbors much resentment towards his mother, 

and the guardian feels that there is a chance 

that Matt could also formulate similar 

resentment if he lived primarily with Dustin 

and his father. 

Wife testified that Matthew received good grades, A's and B's, 

and that her work schedule allowed her to spend considerable time 

with Matthew after school. She also noted that Dustin's grades 

were not as good, and she felt this was because his father did 

not spend enough time with him after school. Matthew's classroom 

aide and wife's sister testified that Matthew and his mother had 

a good relationship and that wife was a good mother to Matthew. 

 The parties stipulated that husband's current salary was 

$4,025 per month and wife's current salary was $754.96 per month. 

 The evidence established that, when the parties first married in 

1976, wife was a factory worker and earned over $11,600 in 1980. 

 Wife has a high school education. Husband also worked in a 

factory full-time and attended college at night, obtaining his 

degree in about eight years. In 1983, at husband's request, wife 

stayed home to care for Dustin and the household. Except for a 

brief return to factory work, wife was a homemaker until 1990, 

when she became a teacher's aide at Matthew's school. As a 
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teacher's aide, wife works 182 days per year, seven hours per 

day. At the hearing, husband testified that he believed that 

wife could earn $22,000 if she returned to the full-time factory 

work that she performed in the early years of the marriage. He 

also presented evidence showing that wife would be entitled to an 

earned income tax credit of $1434 if she had custody of Matthew. 

 Wife testified that she felt it was in Matthew's best interests 

that she continue working as a teacher's aide and that a factory 

job would entail irregular hours and child care expenses. 

 In the divorce decree of July 29, 1994, the trial court: 

(1) awarded wife a divorce on the ground of separation for more 

than one year pursuant to Code § 20-91(9)(a); (2) allowed wife to 

retain physical custody of Matthew; (3) refused to impute 

additional income to wife when computing child and spousal 

support; and (4) awarded wife spousal support. Husband appeals 

each of these findings. 

CUSTODY OF MATTHEW

 Husband argues that the trial court erred in failing to 

consider adequately Matthew's preference to live with him. See

Code § 20-124.3(7). We disagree. 

 Code § 20-124.2(B) requires that, "[i]n determining custody, 

the court shall give primary consideration to the best interests 

of the child." The court must consider the factors in Code 

§ 20-124.3 in deciding what custody arrangement is in the child's 

best interests, including: 

 1. The age and physical and mental 
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condition of the child, giving due 

consideration to the child's changing 

developmental needs; 

 2. The age and physical and mental 

condition of each parent; 

 3. The relationship existing 

between each parent and 

each child, giving due 

consideration to the 

positive involvement with 

the child's life, the 

ability to accurately 

assess and meet the 

emotional, intellectual 

and physical needs of the 

child; 4. The needs of 

the child, giving due 

consideration to other 

important relationships 

of the child, including 

but not limited to 

siblings, peers and 

extended family members; 

 

 5. The role which each parent has played 

and will play in the future, in the 

upbringing and care of the child; 

 6. The propensity of each parent to 

actively support the child's contact and 

relationship with the other parent, the 

relative willingness and demonstrated ability 

of each parent to maintain a close and 

continuing relationship with the child, and 

the ability of each parent to cooperate in 

matters affecting the child; 

 7. The reasonable preference of the 

child, if the court deems the child to be of 

reasonable intelligence, understanding, age 

and experience to express such a preference; 

 8. Any history of family abuse as that 

term is defined in § 16.1-228; and 

 9. Such other factors as the court deems 

necessary and proper to the determination. 

(Emphasis added). Although a child's preference "should be 

considered and given appropriate weight," it does not control the 

custody determination and is just one factor to be considered. 
 6 

Bailes v. Sours, 231 Va. 96, 99, 340 S.E.2d 824, 826 (1986). As 

long as the trial court examines the factors, it is not "required 

to quantify or elaborate exactly what weight or consideration it 

has given to each of the statutory factors." Woolley v. Woolley, 

3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986). 

 In the divorce decree, the trial court stated: "[T]he Court 

has considered the factors set out in Section 20-124.3 of the 

Code of Virginia . . . . [Wife] has prevailed on Factors 3, 5 and 

6. The Court is of the opinion that Matthew is not of sufficient 

age to express a preference." The court was presented with 

uncontroverted evidence from several sources that Matthew, who 

was nine at the time of the hearing, preferred to live with his 

father. The guardian ad litem recommended that Matthew remain in 

the physical custody of his mother after personally meeting with 

him on several occasions and determining his wish that he live 

with his father so that he could play with his brother and 

cousins more frequently. The trial court was fully apprised of 

the child's wishes but specifically found that Matthew was not of 

sufficient age to decide with whom he should live and that other 

factors favored the mother retaining custody. The record proved 

that Matthew was nine years of age. Moreover, the record 

contains evidence from which the trial judge could have concluded 

that factors 3, 5, and 6 outweighed other considerations. 

Matthew's preference to live with his father was but one 

consideration for the trial judge and did not control the 
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determination of which placement would be in Matthew's best 

interests. We hold that the trial court properly considered the 

statutory factors and awarded custody of Matthew to wife. 

 SUPPORT

(1) IMPUTATION OF INCOME

 Husband next argues that the trial court erred in refusing 

to impute income to wife when determining both child and spousal 

support. The trial court awarded wife child support based on the 

child support guidelines of Code § 20-108.2 and refused to impute 

additional income to wife in calculating the amount. The court 

also awarded wife spousal support after it considered all of the 

factors listed in Code § 20-107.1. We recognize that decisions 

concerning both child and spousal "support rest within the sound 

discretion of the trial court and will not be reversed on appeal 

unless plainly wrong or unsupported by the evidence." Calvert v. 

Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875, 876 (1994). 

 A trial court may impute income to the spouse receiving 

child or spousal support under appropriate circumstances. See

Code § 20-108.1(B)(3) (child support); Srinivasan v. Srinivasan, 

10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990) (spousal 

support). In child support cases, Code § 20-108.1 provides a 

rebuttable presumption that the amount of child support indicated 

by the guidelines contained in Code § 20-108.2 is the correct 

support amount. See Barnhill v. Brooks, 15 Va. App. 696, 699, 

427 S.E.2d 209, 212 (1993). A court must consider the factors in 
 8 

Code § 20-108.1(B) in deciding whether to deviate from the 

presumptive amount. These factors include "[i]mputed income to a 

party who is voluntarily unemployed or under employed." Code 

§ 20-108.1(B)(3). Any child support award must be based on 

circumstances existing at the time the award is made. Payne v. 

Payne, 5 Va. App. 359, 364, 363 S.E.2d 428, 431 (1987). 

 In determining spousal support, the trial court must 

consider the earning capacity of the parties. Code 

§ 20-107.1(1). 

 The party seeking spousal support must earn 

as much as he or she reasonably can to reduce 

the amount of the support needed, and may not 

choose a low-paying position that penalizes 

the other spouse. Under appropriate 

circumstances, a court may impute income to 

the party seeking spousal support. 

Konefal v. Konefal, 18 Va. App. 612, 614, 446 S.E.2d 153, 154 

(1994) (citation omitted) (emphasis added). 

 The record established that wife had a monthly shortfall of 

over $900 and showed her need for both spousal and child support. 

 Husband had the ability to pay support. However, he argues that 

wife's job as a teacher's aide resulted in a voluntary cut in pay 

from the factory job that wife held when the parties were first 

married, and as such, wife was not utilizing her full earning 

capacity. Wife testified that a factory job, if available, would 

involve irregular hours and additional child care expenses. As a 

teacher's aide with hours similar to Matthew's school hours, she 

could spend time with Matthew after school and did not have to 
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pay for child care. 

 The only evidence of wife's potential earnings in a factory 

job was husband's opinion that she could earn $22,000. No 

evidence was presented about the availability of a factory 

position or the hours or shifts that would be required. 

Additionally, wife's most recent work experience during the past 

four years was as a teacher's aide. Imputation of income is 

within the trial judge's discretion and is just one factor to be 

considered in setting child and spousal support amounts. In this 

case, credible reasons supported the trial judge's decision that 

imputation of income was not appropriate, and no abuse of 

discretion occurred. 

 (2) INCLUSION OF TAX CREDIT AND PENDENTE LITE SUPPORT

 Husband contends that, in calculating wife's income for 

support analysis, the trial court should have included: (1) an 

earned income tax credit of $1434, and (2) the spousal support 

under the preexisting pendente lite order. 

 Code § 20-108.2(C) provides the definition of "gross income" 

for purposes of the child support statute: 

 For purposes of this section, "gross 

income" shall mean all income from all 

sources, and shall include, but not be 

limited to, income from salaries, wages, 

commissions, royalties, bonuses, dividends, 

severance pay, pensions, interest, trust 

income, annuities, capital gains, social 

security benefits except as listed below, 

workers' compensation benefits, unemployment 

insurance benefits, disability insurance 

benefits, veterans' benefits, spousal 

support, rental income, gifts, prizes or 

awards. Gross income shall be subject to 
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deduction of reasonable business expenses for 

persons with income from self-employment, a 

partnership, or a closely held business. 

"Gross income" shall not include benefits 

from public assistance programs as defined in 

§ 63.1-87, federal supplemental security 

income benefits, or child support received. 

For purposes of this subsection, spousal 

support included in gross income shall be 

limited to spousal support paid pursuant to a 

pre-existing order or written agreement and 

spousal support shall be deducted from the 

gross income of the payor when paid pursuant 

to a pre-existing order or written agreement 

between the parties to the present 

proceeding. 

(Emphasis added). 

 Husband argues that the trial court was required to include 

a $1434 earned income tax credit as income. We disagree. 

Potential tax benefits are not listed as part of gross income 

under Code § 20-108.2. Moreover, the trial court did not err in 

failing to accept husband's calculations of the potential value 

of the tax credit in wife's future income tax filings. 

 Husband's contention that wife's pendente lite spousal 

support award also must be used in computing future child support 

is without merit. Code § 20-103(A) provides for pendente lite

support: 

 In suits for divorce, annulment and separate 

maintenance, and in proceedings arising under 

subdivision A 3 or L of § 16.1-241, the court 

having jurisdiction of the matter may, at any 

time pending a suit pursuant to this chapter, 

in the discretion of such court, make any 

order that may be proper (i) to compel a 

spouse to pay any sums necessary for the 

maintenance and support of the petitioning 

spouse . . . . 
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Thus, "[t]he legislature has provided a statutory scheme for the 

support of a spouse during the pendency of a suit and thereafter. 

The law provides for only two types of support, either pendente 

lite pursuant to Code § 20-103 or support due a former spouse 

pursuant to Code § 20-107.1." Weizenbaum v. Weizenbaum, 12 Va. 

App. 899, 903, 407 S.E.2d 37, 40 (1991) (emphasis added). 

 Husband argues that wife's spousal support under the 

pendente lite order is "spousal support paid pursuant to a 

pre-existing order" and must be included in income for child 

support calculation. Code § 20-108.2(C). "The plain, obvious, 

and rational meaning of a statute is always preferred to any 

curious, narrow or strained construction; a statute should never 

be construed so that it leads to absurd results." Branch v. 

Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992). 

 The rational definition of "preexisting order" in the context of 

Code § 20-108.2(C) is an order that has continuing effect and 

that provides a spouse with an income source. A pendente lite

support award, by its nature, ends when a spousal or child 

support order is entered under Code § 20-107.1 or Code 

§ 20-108.2. If the trial court included the pendente lite

support amount in wife's income for purposes of calculating a 

more permanent support arrangement, wife would in effect be 

charged with income that she no longer receives. Thus, we hold 

that the court correctly excluded the pendente lite award when 

determining the final child and spousal support amounts. 
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 GROUNDS OF DIVORCE

 Lastly, husband asks that we reconsider the Supreme Court's 

decision in Alls v. Alls, 216 Va. 13, 216 S.E.2d 16 (1975),2

 and 

hold that the trial court erred in awarding wife a divorce on the 

ground of a one-year separation when she originally filed on 

cruelty grounds. This Court is bound by the holding in Alls. We 

hold that, assuming that the evidence was sufficient to support 

husband's allegation of desertion by wife, "the trial court was 

not compelled 'to give precedence to one proven ground of divorce 

over another.'" Williams v. Williams, 14 Va. App. 217, 220, 415 

S.E.2d 252, 253-54 (1992) (quoting Robertson v. Robertson, 215 

Va. 425, 426, 211 S.E.2d 41, 43 (1975)). "Where dual or multiple 

grounds for divorce exist, the trial judge can use . . . sound 

discretion to select the grounds upon which . . . to grant the 

divorce." Lassen v. Lassen, 8 Va. App. 502, 505, 383 S.E.2d 471, 

473 (1989). The evidence established that the parties had been 

living separate and apart for more than one year, and the trial 

court properly awarded wife a divorce on the ground of one-year 

separation based on the evidence presented. Husband's argument 

that the trial judge failed to consider wife's desertion in 

determining whether to award spousal support is without merit 

because the trial judge made no finding of desertion. 

 

 2In Alls, the Supreme Court of Virginia held that "one spouse 

is not guilty of legal desertion in separating from the other 

after the institution of a suit for divorce or during its 

pendency." 216 Va. at 14, 216 S.E.2d at 17. 
 13 

 Accordingly, the decision of the trial court is affirmed. 

 Affirmed.