COURT OF APPEALS OF VIRGINIA

Present: Judges Petty, Beal es and Senior Judge Frank Argued in Richmond, Virginia

AMANDA SWANSON NIBLETT OPINION BY v. Record No. 0716-15-1 JUDGE WILLIAM G. PETTY DECEMBER 15, 2015 JASON DANIEL NIBLETT

FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY Jeffrey W. Shaw, Judge Breckenridge Ingles (Monique W. Donner; Martin, Ingles & Hensley, LTD, on briefs), for appellant. Richard C. Langhorne for appellee.

Amanda Swanson Niblett (“mother”) appeals th e trial court’s refusal to impute income to Jason Daniel Niblett (“father”), for purposes of establishing father’s initial child support obligation, after the court found father was voluntar ily unemployed because of his incarceration. We conclude the trial court erre d in not considering father’s re cent past earnings; accordingly, we reverse and remand to the trial court.

I. BACKGROUND “When reviewing a trial court’s decision on a ppeal, we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences.” Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). In this case, father was the prevailing party in the trial court. Mother and father were married on or about May 8, 2010 and have two children. Mother was granted a divorce on the grounds of father’s adultery with a minor female who was residingPUBLISHED- 2 - in the home of the parties. Father was convicted of crimes related to his sexual conduct with the minor female and sentenced to an active three- year penitentiary senten ce. He has remained incarcerated since his arrest in March 2014. Father testified that before he was incarcerat ed he had worked for nine and a half years as a car salesman. He also testified that he ha d some training in vehicle reconditioning and had a two-year degree in arts and sciences. In 2013, father earned approximately $85,700 as a
commissioned car salesman. After father’s ar rest in March 2014, his em ployer continued to pay him a base salary of $3000 per month through December 2014. Father’s 2014 W-2 listed wages of approximately $54,500 from this job. At the April 3, 2015 hearing regarding child support, the part ies did not dispute that due to father’s incarceration he ha d no income for purposes of cal culating the presumptive child support amount. Nevertheless, mother argued th at father was voluntarily unemployed because he voluntarily chose the conduct that resulted in his incarceration. Mother therefore argued that the trial court should impute father ’s pre-incarceration income to hi m, and thus deviate from the presumptive child support guidelines. Father argued that he would have no source of income until he was released from confinement. Father further argued that it wa s speculative whether any car dealership would hire him in the future now that he had two felony c onvictions and was required to register as a sex offender. Father urged that even if the cour t found that father was voluntarily unemployed, it should nevertheless refuse to impute income because future earnings were speculative. In response, mother argued that although future income might be speculative, case law requires the court to look to past wages, and to consider what father “was making before his criminal acts got him locked up.” Mother asked the court to impute those recent past earnings to father.- 3 - The court found father was voluntarily unemployed because he was unable to work due to his own voluntary acts. The court declined to impute income, however. The court reasoned that based on this Court’s opinion in Donnell v. Donnell, 20 Va. App. 37, 455 S.E.2d 256 (1995), it was precluded from imputing in come. Although the court was “ not sure [it] like[d] that result,” it reasoned that “to pick an amount out of the air, esse ntially, as to what his income would be would be speculating as against the requirements of the Jacobs[ v. Jacobs, 219 Va. 993, 995, 254 S.E.2d 56, 58 (1979),] and the Payne[ v. Payne, 5 Va. App. 359, 363, 363 S.E.2d 428, 430 (1987),] case[s].” The court then awarded the presumptive statutory minimum amount of $104 per month. Mother timely appealed.

II. ANALYSIS A. S TANDARD OF R EVIEW “We begin our analysis by recognizing the well -established principle that all trial court rulings come to an appellate court with a pr esumption of correctness. Thus, we will not invalidate a court’s decree unless the only reasonable in terpretation thereof requires invalidation.” Stiles v. Stiles, 48 Va . App. 449, 453, 632 S.E.2d 607, 609 (2006) (quoting Riggins v. O’Brien, 263 Va. 444, 448, 559 S.E.2d 673, 675-76 (2002)). “The determination of child support is a ma tter of discretion for the circuit court, and therefore we will not disturb its judgment on appeal unless plainly wrong or unsupported by the evidence.” Oley v. Branch, 63 Va. App. 681, 699, 762 S.E.2d 790, 799 (2014). Child support decisions, like “[s]pousal support determinations[,] typically involve fact-specific decisions best left in the ‘sound discretion’ of the trial court.” Branda u v. Brandau, 52 Va. App. 632, 641, 666 S.E.2d 532, 537 (2008) (quoting McKee v. McKee, 52 Va. App. 482, 489, 664 S.E.2d 505, 509 (2008) ( en banc )). The court’s discretion, however, is not without bounds. The General Assembly has included mandatory steps that a c ourt must follow when ex ercising its discretion- 4 - in calculating child support. S ee generally Code § 20-108.1. As a result, the court’s calculation of child support obligations is a combination of mandatory steps and broad discretion. “[U]nless it appears from the record that the circuit court judge has abused his discretion by not considering or by misapplying one of the statutor y mandates, the child support award will not be reversed on appeal.” Milam v. Milam, 65 Va. App. ___, ___ S.E.2d ___, ___ (Nov. 17, 2015). An abuse of discretion . . . can occu r in three principal ways: when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment. Landrum v. Chippenham & Johnston-Willis Hosps., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011) (alteration in origin al) (quoting Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)).

B. T HE S TATUTORY S CHEME FOR D ETERMINING C HILD S UPPORT “The court’s paramount concern when awarding child support is the best interest of the children.” Stiles, 48 Va. App. at 456, 632 S.E.2d at 611; L.C.S. v. S.A.S., 19 Va. App. 709, 717, 453 S.E.2d 580, 585 (1995) (“In setting an award of child support, the ‘primary issue before a trial court judge is the welfare and best intere sts of the child, not the convenience or personal preference of a parent.’” (quoting Br ody v. Brody, 16 Va. App. 647, 651, 432 S.E.2d 20, 22 (1993))). “The court must consid er the basic needs of the child, the parent’s ability to pay, and to the extent that the parent is ab le to provide more than the basic necessities of life, the degree to which the child should reasonably share in his or her parents’ prosperit y.” Conway v. Conway, 10 Va. App. 653, 658, 395 S.E.2d 464, 466-67 (1990).- 5 - 1. The Rebuttable Presumption The starting point in any awar d of child support is the presum ptive calculations set out in Code § 20-108.2. In calculating child support, a “court is [first] required to determine the presumptive child support amount by using the stat utory guidelines.” Id. “The guidelines in Code § 20-108.2 require a court to calculate th e ‘presumptive amount of child support as a percentage of the parents’ combined gross m onthly incomes.’” L.C.S., 19 Va. App. at 717, 453 S.E.2d at 585 (quoting Barnhill v. Brooks, 15 Va. App. 696, 699, 427 S.E.2d 209, 212 (1993)). “The amount of child support under the child sup port guidelines must be based on the parents’ actual gross income.” West v. West, 53 Va. App. 125, 135, 669 S.E.2d 390, 395 (2008) (citing Code § 20-108.2(C)). “There is a rebuttable pr esumption that the amount determined in accordance with the statutory guidelines, Code § 20-108.2, is the correct award.” Brooks v. Rogers, 18 Va. App. 585, 591, 445 S.E.2d 725, 728 (1994).
2. Imputation of Income for Voluntary Unemployment Nevertheless, the amount calculated by applyi ng the guidelines is pr esumptive only; other evidence may be sufficient to rebut that pr esumption. Section 20- 108.1 expressly identifies fourteen factors that are relevant in determining if the trial court is warranted in varying from the presumptive amount, and the statute additionally provides authority for th e court to consider “[s]uch other factors as are nece ssary to consider the equities fo r the parents and child.” Code § 20-108.1(B)(15). One of the Code § 20-108.1 factor s is: “Imputed income to a party who is voluntarily unemployed or voluntarily under-empl oyed . . . .” Code § 20-108.1(B)(3). Even “[b]efore the presumptive guidelines cam e into effect and the law specifically allowed the imputation of income , the Virginia Supreme Court ha d already recognized that the key factor [in determining child support] was th e spouse’s ability to pay and not necessarily the- 6 - amount of actual earnings.” 1 Bishop Cochran v. Cochran, 14 Va. App. 827, 830, 419 S.E.2d 419, 421 (1992) (citing Hawkins v. Hawkins, 187 Va. 595, 600, 47 S.E.2d 436, 439 (1948)). Section 20-108.1(B)(3) “does not ex pressly require the court to im pute income to a parent found to be voluntarily unemployed, but such a reading is implicit both in the text of the statute itself and in this Court’s prior opini ons interpreting that text.” Hamel v. Hamel, 18 Va. App. 10, 12-13, 441 S.E.2d 221, 222 (1994); see also Blackburn v. Michael, 30 Va. App. 95, 103, 515 S.E.2d 780, 784 (1999) (reversing a trial court’s refusal to impute income to voluntarily unemployed mother for spousal support purposes even though it had imputed income for child support purposes). This requirement naturally flows from the principl e that “[t]he ge neral rule in Virginia is that the amount of child support depends not solely upon the child’s needs, but also upon the ability of a parent to provide support,” a nd the “ability of a parent to pay support is determined not merely by the actual income of the payor parent, but also on the ability to earn.” Peter N. Swisher, Lawrence D. Diehl, & James R. Cottrell, Virginia Family Law: Theory, Practice & Forms § 10:5 (2015). “Following a di vorce, a parent may not voluntarily pursue low

1 Child support guidelines were established by Congress to assure that both the child’s needs and the parent’s ability to pay are considered in determining the amount of support awards and to decrease the disparity in the amount of awards . . . . In accord with the Federal law, 42 U.S.C.A. § 667(a), the Virginia General Assembly enacted a statute inco rporating the guidelines. Code § 20-108.2. As originally enacted, the guidelines were not binding on trial courts. 1988 Va. Acts c. 907. However, in order to make its program of family support “more effective in achieving its objectives,” Congress amended 42 U. S.C.A. § 667 to require that the amount of child support obl igation as determined by the guidelines be a rebuttable pres umption “in any judicial or administrative proceeding for the award of child support.” Pub.L. 100-485, § 103(b). The Virginia General Assembly amended § 20-108.2 to mirror the Federal law. 1989 Va. Acts c. 599. Richardson v. Richardson, 12 Va . App. 18, 20, 401 S.E.2d 894, 895 (1991).- 7 - paying employment ‘to the detriment of support ob ligations to the childr en.’” Niemiec v. Dep’t of Soc. Servs., Div. of Child Support Enf’t ex rel. Niemiec, 27 Va. App. 446, 451, 499 S.E.2d 576, 579 (1998) (quoting Brody, 16 Va. App. at 651, 432 S.E.2d at 22); see also Bishop Cochran, 14 Va. App. at 830, 419 S.E.2d at 421 (“ [W]hen one makes a job change to the detriment of one’s family, it is not the family who should suffer but the one who made the job change.”). “As such, except as provided in Code § 20-108.1(B)(3), a trial court determining child support is required to impute income to a parent who is found to be voluntarily underemployed.” 2 Niemiec, 27 Va. App. at 451, 499 S. E.2d at 579 (emphasis added).

2 Section 20-108.1(B)(3) sets outcircumstances where a part y’s choice to forgo more lucrative employment does not require the imputation of income. Additionally, this Court has found imputation of income inappropriate wher e the party’s employme nt decision was not “voluntary unemployment” or “voluntary under-em ployment” in view of the circumstances of the case. See, e.g., deCamp v. deCamp, 64 Va. App. 137, 152-53, 765 S.E.2d 863, 871 (2014) (holding that spouse was not required to retu rn to work immediatel y upon divorce to avoid judicial imputation of income); McK ee v. McKee, 52 Va. App. 482, 490, 664 S.E.2d 505, 509 (2008) ( en banc ) (holding that a previously unemploye d spouse was not required to obtain immediate employment upon divorce); Br oadhead v. Broadhead, 51 Va. App. 170, 181, 655 S.E.2d 748, 753 (2008) (holding that a father was not voluntarily underemployed when he based his employment decision on ability to mainta in custody arrangements); Reece v. Reece, 22 Va. App. 368, 376-77, 470 S.E.2d 148, 152-53 (1996) (holding that, where husband had strong familial ties to Richmond, he was not voluntarily underemployed ba sed on his refusal of a job opportunity requiring him to relocate to a differentstate). It is only wh en considering all the facts of the case that th e trial court can determine whether, in the party’s current position, he or she is voluntarily unemployed. Broadhead, 51 Va. App. at 181, 655 S.E.2d at 753. Recently, in Murphy v. Murphy, ___ Va . App. ___, ___ S.E.2d ___ (Dec. 8, 2015), we considered the impact of the 2006 amendment to Code § 20-108.1(B)(3) on our prior opinions to the extent those opinions required the trial cour t to impute income. That amendment provides “that any consideration of imputed income based on a change in a party’s employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party.” Code § 20-108.1(B )(3). We stated in Murphy that [t]o the extent this Court has previously stated or implied that a trial court judge must impute income in any circumstance where a parent has voluntarily taken a position with a reduced salary, without regard for the good fa ith and reasonableness of the decision, or other factors affecting the best inte rests of the children, those holdings are superseded by statutory amendment.- 8 - 3. Calculating the Amount of Imputed Income Section 20-108.1 provide s that “the court shallconsider all evidence presented relevant to any issues joined in that proceeding . . . [and that] the court’s decision in any such proceeding shallbe rendered upon the evidence re levant to each individual cas e.” (Emphasis added). Thus, when a party raises voluntary unemployment as an issue in the case, Code § 20-108.1(B) requires the court to “consider all evidence presented relevant to” how much income should be imputed to the unemployed party.

Imputed income may be calculated from evidence showing a higher-paying former job voluntarily quit by the parent, from evidence show ing that more lucrative work is currently available to the parent, or from eviden ce showing recent past earnings. Mir v. Mir, 39 Va. App. 119, 128, 571 S.E.2d 299, 304 (2002). The recent pa st earnings of a voluntarily unemployed parent often provides the most reasonable estimate of earning capacity. See, e.g., O’Hara v. O’Hara, 45 Va. App. 788, 798, 613 S.E.2d 859, 864 ( 2005) (affirming imputation of income “based on an average of wife’s income over the past several years”); Niemiec, 27 Va. App. at 451, 499 S.E.2d at 579 (reversing the trial court’s calculation of imputed income where evidence of recent past earnings did not support the amount); Bishop Cochran, 14 Va. App. at, 831, 419 S.E.2d at 421 (holding that the tria l court erred when it did not c onsider “what the husband could have been reasonably expected to have earned . . . based upon the recent work history and other

Murphy, ___ Va. App. at ___, ___ S.E.2d at ___ (f ootnote omitted). However, here, father makes no argument, nor could he, that his incarcerati on was an employmentdecision undertaken in good faith or was otherwise reasonable. Thus , because Murphy expressly limits its holding to cases where there is evidence of good faith and reasonableness, it is not binding precedent in the present case; rather, we are bound by our prior case law requiring cons ideration of imputed income where a parent has become voluntarily unemployed. See Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 73, 577 S.E.2d 538, 540 (2003) (“The decision of one panel [of our Court] ‘becomes a predicate for app lication of the doctrine of stare decisis ’ and cannot be overruled except by the Court of Appeals sitting en banc or by the Virginia Supreme Court.” (quoting Johnson v. Commonwealth, 252 Va. 425, 430, 478 S.E.2d 539, 541 (1996))).- 9 - pertinent circumstances); see also Marian F. Dobbs, Determining Child & Spousal Support § 4:37, at 890 (2015) (“Although the court’s inquiry is not limited to recent years in determining the potential income of a voluntarily impoverished parent, some courts consider the wage earned prior to voluntary underemployment as the be st estimate of earning potential.” (footnote omitted)).

The evidence presented must be sufficient to “enable the trial judge reasonably to project what amount could [have been] anticipated” had the parent not become voluntarily unemployed. Albert v. Albert, 38 Va. App. 284, 295, 563 S.E.2d 389, 395 (2002) (quoting Hur v. Va. Dep’t of Soc. Servs. Div. of Child Support Enf’t ex rel. Klopp, 13 Va. App. 54, 61, 409 S.E.2d 454, 459 (1991)). As a result, the imputed amount “must be based on circumstances existing at the time the award is made,” Mir, 39 Va. App. at 128, 571 S.E.2d at 304, and “not upon speculation or conjecture,” id. (quoting Niem iec, 27 Va. App. at 452, 499 S.E.2d at 579). See id. at 129, 571 S.E.2d at 304 (“[The court] must consider the parent’s earning capacit y, financial resources, education and training, ability to secure such edu cation and training, and othe r factors relevant to the equities of the parents a nd children.” (quoting Niemiec, 27 Va. App. at 451, 499 S.E.2d at 579)). Thus, a parent’s wages or other earn ings at the time he or she became voluntarily unemployed are not only relevant in determin ing imputed income, they can be the most probative evidence of current earning capacity. 4. Decision to Deviate from the Presumptive Guidelines While the court is required to assign and c onsider imputed income when it finds a parent is voluntarily unemployed, that cons ideration will not necessarily result in a devi ation from the presumptive guidelines. Imputation of income is only one of the factors provided in Code § 20-108.1(B) that “affect[s] the obligation [and] th e ability of each [parent] to provide child support” and which may justify deviation from th e presumptive amount. Therefore, any decision- 10 - to deviate from the guidelines by imputing inco me must be done within a review of the “[statutory] factors . . . , the ability of each part y to provide child support, and the best interests of the child.” Code § 20-108.1(B). As a general rule , “[w]hat weight, if any, to assign to this [or that] factor in the overall decision lies within the trial court’s sound discretion.” Robbins v. Robbins, 48 Va. App. 466, 481, 632 S.E.2d 615, 622 (2006) (second alteration in original) (quoting Owens v. Owens, 41 Va. App. 844, 859, 589 S.E.2d 488, 496 (2003)). The requirement that the trial cour t consider all of the statutory factors necessarily implies substantive consideration of the evidence presented as it relates to all of the [Code § 20-108.1] factors. This does not mean that the trial court is required to quantify or elaborate exactly what weight or consid eration it has given to each of the statutory factors. It does mean, however, that the court’s findings must have some foundation based on the evidence presented. Wagner v. Wagner, 4 Va. App. 397, 409-10, 358 S. E.2d 407, 413-14 (1987). “As we have often said: ‘[T]he trial court must consider each of the statutory factors, but may determine what weight to assign to each of them.’” R obbins, 48 Va. App. at 481, 632 S.E.2d at 622 (quoting Owens, 41 Va. App. at 859, 589 S.E.2d at 496 (citation omitted)). “If the court determines from the evidence that imputation of income to a parent is justified, the award is ‘calculated by adding . . . a just and appropriate amount [to] the amount reflected in Code § 20-108.2,’ accompanied by the requisite written findings.” Brooks, 18 Va. App. at 592, 445 S.E.2d at 729 (a lteration in original) (quo ting Richardson, 12 Va. App. at 19, 401 S.E.2d at 895).
C. T HE T RIAL C OURT E RRED IN F AILING TO C ONSIDER I MPUTED I NCOME Here, the court determined the presumptive child support amount using zero as father’s current income while incarcerated. The court further found that fath er’s incarceration constituted voluntary unemployment. See Layman v. Layman, 25 Va. App. 365, 368, 488 S.E.2d 658, 659- 11 - (1997) (holding “that a parent’s incarcera tion may be found to constitute voluntary unemployment under Code § 20-108.1(B)(3)” 3 ). These factual findi ngs are not disputed on appeal. However, after finding father voluntarily unemployed, the court erred in failing to consider evidence presented suppor ting the imputation of income. Father’s recent past earnings provided a reasonable estimate of fathe r’s current earning capacity. See Mir, 39 Va. App. at 128, 571 S.E.2d at 304. The court had before it eviden ce showing that father earned approximately $85,700 in 2013 as a commissioned salesman and earned approximately $54,500 in 2014, the year he was incarcerated. Upon incarceration, fa ther received no commissions, but he continued to earn approximately $3000 per month in wages for the remainder of 2014. Thus, at the time of the April 3, 2015 hearing, the court had before it evidence showing recent past earnings. There is nothing in the record to sugge st that father would not have continued to earn the same amount had he not voluntarily decided to commit a crim inal act and thus render himself unemployed. The recent past earnings were not based upon sp eculation or conjecture, see id., but rather reasonably projected what amount fa ther could have been anticipated to earn had he not become voluntarily unemployed, see Albe rt, 38 Va. App. at 295, 563 S.E .2d at 395. Consequently, the court was required to consider recent past earni ngs when deciding whether to deviate from the presumptive child support amount. The trial court reasoned, however, that im puting income would be speculating as to father’s post-incarceration income. The cour t, citing Donnell, 20 Va. App. 37, 455 S.E.2d 256,

3 The rationale behind this principle is that a parent should not be permitted “to shift to his wife and children the consequences of his wrongdoing.” Layman, 25 Va. App. at 368, 488 S.E.2d at 659; see also Hammers v. Hammer s, 216 Va. 30, 31, 216 S.E.2d 20, 21 (1975) (holding that in order to obtain a reduction in child support payments a parent must show that his lack of ability to pay is not due to his own voluntary act).- 12 - concluded that imputing income would require “pick[ ing] an amount out of the air, essentially, as to what [father’s] income would be” post-incarceration. We disagree. In the case before us, we are not concer ned with what the father might earn upon his release from incarceration. Rath er, we are concerned with what the father would have been earning on the date of the hearing but for his voluntary unemployment. 4 “The [mother] was required only to produce evidence that was sufficien t to ‘enable the trial judge reasonably to project what amount could be anticipated’ had the [father] continued in [his] employment.” Brody, 16 Va. App. at 651, 432 S.E.2d at 22 (quoting Hur, 13 Va. App. at 60, 409 S.E.2d at 458). Donnell, on the other hand, concerned an a ppellant who had retired from his job in anticipation of incarceration. As a result, appellant’s $55,000 annua l income was replaced with a monthly retirement income of $1987. 20 Va. App. at 41, 455 S.E.2d at 257. Rather than use the most recent past earnings at th e time of the award, which was the monthly retirement income, the trial court imputed to the appellant an income equal to his pre-retirement earnings for purposes of equitable distribution, child support, and determination of a monetary award. Id. We reversed, finding that we “[coul d] not discern from th[e] r ecord the foundatio n for either

4 We recognize that in L.C.S., 19 Va. App. 709, 453 S.E.2d 580, we observed that it would be speculative to consider past earnings to impute income to an incarcerated attorney because he would be unable to practice law upon hi s release. Id. at 719, 453 S.E.2d at 585. This statement assumed that the date from which the tr ial court should impute income was the date of father’s release. However, in L.C.S. we speci fically declined to reach the issue of whether father’s incarceration constituted voluntary unemployment. Rather, we reversed based on the trial court’s failure to consider husband’s invest ment income. Hence, the observation regarding past earnings was merely dicta and has no pr ecedential value. See Newman v. Newman, 42 Va. App. 557, 566, 593 S.E.2d 533, 538 (2004) (“ Dicta cannot ‘serve as a source of binding authority in American jurisp rudence.’” (quoting United Stat es v. Pasquantino, 336 F.3d 321, 329 (4th Cir. 2003) ( en banc ))). Here, having found father to be voluntarily unemployed, the trial court need only consider father’s recent past ear nings, and not speculate as to what he might earn upon release.- 13 - imputing husband’s pre-retirement income or th e [monetary] award.” Id. at 42, 455 S.E.2d at 258. The trial court in Donnell did not make a finding thatthe appellant was voluntarily unemployed or that appellant’s post-retiremen t earnings would be equivalent to his preretirement earnings. Thus, we found that under the facts of that case, “to impute income in that amount is to premise the awards upon the occurrence of an uncertain future circumstance, prohibited by Jacobs[, 219 Va. at 995, 254 S. E.2d at 58,] and Payne[, 5 Va. App. at 363, 363 S.E.2d at 430].” Id. at 41, 455 S.E.2d at 257. The trial court here concluded that it was “not sure [it] like[d] that result” but that this Court’s holding in Donnell restricted it from impu ting income to father because the imputation would amount to speculation. The trial cour t did not consider Stubblebine v. Stubblebine, 22 Va. App. 703, 473 S.E.2d 72 (1996) ( en banc ). In Stubblebine, this Court, sitting en banc , affirmed the trial court’s finding that the appe llant “had twice voluntar ily retired after two careers.” Id. at 708, 473 S.E.2d at 74. At the time of trial, the Stubblebine appellant was thus voluntarily unemployed, distinguishi ng the case from Donnell. We held that “[i]mputing income to [appellant] on the basis of his r ecent past earnings did not consti tute an abuse of discretion.” Id. at 709, 473 S.E.2d at 74. We further conc luded that “based upon the recent record of earnings, the court did not premise the award ‘u pon the occurrence of an uncertain future circumstance,’ Jacobs v. Jacobs, 219 Va . 993, 995-96, 254 S.E.2d 56, 58 (1979).” Id. at 709, 473 S.E.2d at 75. In this case, like in Stubblebine and unlike in Donnell, the trial court found that father was voluntarily unemployed. Here, like in Stubblebin e, father had recent past earnings. Instead of considering what earnings father might ear n post-incarceration, the tr ial court here should have considered what he would have been making but for his misconduct and based imputed income on recent past earnings. Such earnings were not speculative because they could be- 14 - established with certainty, and an award based on such earnings does not improperly premise the award upon the occurrence of an uncer tain future circumstance. Id. Rather, recent past earnings were evidence of what father likely would have earned had he not become voluntarily unemployed. See Albert, 38 Va. App. at 295, 563 S.E.2d at 395. An abuse of discretion occurred “when a relevant factor that should have been given si gnificant weight,” the recent past earnings, “[was] not considered [and] when an i rrelevant or improper f actor,” post-incarceration employability, “[was] considered and given si gnificant weight.” Landrum, 282 Va. at 352, 717 S.E.2d at 137. We therefore vacate the trial court’s child support order and remand for the trial court to consider the evidence presented as to father’s recent past earnings as a basis for calculating imputed income. 5 Although the trial court was re quired to impute income to father once the court found him to be voluntarily unemployed, this does not mean that the court is required to deviate from the presumptive guidelines. Rather, the decision to deviate from the guidelines must be done within a review of allthe statutory factors as we ll as “[s]uch other factors as are necessary to consider the equities for the parents and child.” Code § 20-108.1(B)(15). 6 See also Code § 20-108.1(B) (“The court’s decision in any such proceeding shall be rendered upon the evidence relevant to

5 Of course, if the court determined that there was a subsequent material change of circumstance, the court would be free to revisit th e issue of child support, including the issues of actual and imputed income.

6 In considering “[s]uch other factors as are necessary to consider the equities for the parents and children,” Code § 20- 108(B)(15), the court might conc lude that father exiting prison with child support arrearages, or arrearages exce eding a certain amount, would not be in the best interests of the childre n. Conceivably, the court could determine, “based upon the evidence relevant to each individual cas e,” Code § 20-108(B), that here it would be in the children’s best interest to use a nominal amount, or even no amo unt, of the imputed income in calculating child support. But see L.C.S., 19 Va. App. at 718, 453 S.E.2d at 585 (evaluating the equities where “wife would be required to depl ete her entire estate to support herself and her child, and, upon husband’s exit from prison, he would walk out of prison with an intact equitable distribution award”).- 15 - each individual case.”). Further, although the tr ial court must consider each of the statutory factors for which evidence is presented, the weight , if any, to give any particular factor in the overall decision lies within th e trial court’s sound discreti on. Robbins, 48 Va. App. at 481, 632 S.E.2d at 622. Thus, we do not hold that the tr ial court must deviate from the presumptive guidelines because of the income imputed to father . Rather, we hold that the trial court erred in failing to first consider recent past earnings to calculate the amount of income that should be imputed to father because of his voluntary unemployment. After considering the evidence and the factors, the court may add “‘a just and appr opriate amount [to] the am ount reflected in Code § 20-108.2,’ accompanied by the requisite written findings,” 7 Brooks, 18 Va. App. at 592, 445 S.E.2d at 729 (alteration in or iginal) (quoting Richardson, 12 Va. App. at 20, 401 S.E.2d at 895), or the court may conclude that deviation from the presumptive guidelines is not appropriate in this case.
III. CONCLUSION Because the court erred by not considering recent past earnings when deciding whether father’s voluntary unemployment should result in deviation from the presumptive guidelines, we

7 In order to deviate from the presumptiv e support amount, Code § 20-108.1(B) requires that the court shall make written findi ngs in the order, which findings may be incorporated by reference, that the application of such guidelines would be unjust or inappr opriate in a particular case. The finding that rebuts the guideli nes shall state the amount of support that would have been requ ired under the guidelines, [and] shall give a justification of why the order varies from the guidelines . . . . Significantly, however, the statute contains no requirement for specific findings, written or otherwise, if the court chooses to aw ard the presumptive amount of support.- 16 - reverse the court’s child support award and remand to the trial c ourt for further consideration consistent with this opinion. Reversed and remanded.