COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Elder 

Argued at Salem, Virginia 

SARAH RUTH WOFFORD TATUM 

v. Record No. 0438-00-3 

 

JOSEPH KENNETH TATUM MEMORANDUM OPINION* BY 

 JUDGE SAM W. COLEMAN III 

JOSEPH KENNETH TATUM DECEMBER 5, 2000 

v. Record No. 0443-00-3 

SARAH RUTH WOFFORD TATUM 

FROM THE CIRCUIT COURT OF ROANOKE COUNTY 

Roy B. Willett, Judge 

Cheryl Watson Smith (Mundy, Rogers & Frith, 

L.L.P., on briefs), for Sarah Ruth Wofford 

Tatum. 

 William H. Cleaveland (Rider, Thomas, 

Cleaveland, Ferris & Eakin, P.C., on briefs), 

for Joseph Kenneth Tatum. 

 

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

designated for publication.

 Both Sarah Tatum (wife) and Joseph Tatum (husband) appeal the 

circuit court's equitable distribution, spousal support, and child 

support awards. Husband argues that the circuit court erred in 

reopening its equitable distribution order to consider the value 

and distribution of his stock options. Wife argues that the 
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circuit court erred in: (1) valuing husband's stock options on 

the date of separation; (2) offsetting the husband's spousal 

support obligation against wife's child support obligation; 

(3) failing to consider the spousal support factors set forth in 

Code § 20-107.1; (4) imputing income to her; and (5) awarding her 

insufficient spousal support. For the following reasons, we 

reverse and remand. 

I. BACKGROUND

 Husband and wife were married January 5, 1980. They were 

divorced by final decree on May 27, 1997. Two children were born 

to the marriage. Wife is a registered nurse, but at the time of 

the parties' separation, wife had not been employed as a clinical 

nurse for nearly fourteen years. During the marriage, husband was 

employed by Wachovia Bank and, as part of his compensation, 

husband received stock options, all of which were acquired during 

the marriage and prior to the final separation. After the 

divorce, husband exercised his options and purchased 4,700 shares 

of stock for approximately $142,175. In December 1998, after 

husband exercised the options, he sold the stock for over 

$400,000. 

A. Stock Options

 A hearing on the equitable distribution issues was conducted 

in June 1997 and the trial court entered an "Interlocutory Decree" 

dated October 1, 1997, in which the trial court equitably 
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distributed the parties' retirement accounts, vehicles, 401K plan, 

and husband's interest in C&T Properties. The trial judge ordered 

that the marital residence be sold and the parties divide the 

proceeds equally and that "they shall endeavor to agree upon the 

distribution of the household furnishings." The decree further 

provided that the "court takes under advisement issues concerning 

child support, spousal support, and an award of attorney's fees 

and costs, pending the sale of the marital property and other 

matters set forth in this order." At the hearings preceding the 

October 1, 1997 decree, the parties presented no evidence 

concerning the value or ownership of husband's stock options and 

the decree did not mention the stock options. The decree provided 

that in the event the parties were not able to agree upon the sale 

or value of certain assets they "may set the matter for hearing." 

 In August 1998, after all other equitable distribution issues 

had apparently been resolved, wife filed a notice for a "pre-trial 

conference" "for the purpose of addressing a mechanism for the 

resolution of the remaining issues in this matter." Wife 

asserted, among other things, that the classification, evaluation, 

and distribution of husband's stock options remained an issue to 

be decided. In January 1999, wife filed a motion for entry of an 

order finding that husband's stock options are marital property 

and awarding wife an equitable share. The record shows that wife 

was informed and knew of the existence of the stock options as 
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early as November 22, 1996, when she was provided the information 

concerning husband's ownership in "Supplemental Answers to 

Defendant's Interrogatories." 

 The trial court referred the issue to a commissioner in 

chancery. The commissioner opined that the trial court had 

jurisdiction to hear and decide the issues concerning the stock 

options because the trial court's October 1, 1997 decree was 

interlocutory and was not a final decree equitably distributing 

all of the parties' property. The commissioner specifically noted 

that the October decree provided, with respect to the parties' 

401K and thrift savings plan, "[t]hat the parties shall endeavor 

to reach agreement concerning the value of said contributions. If 

the parties are unable to reach agreement, then the parties may 

set the matter for hearing." The commissioner further found that, 

although husband informed wife of the stock options on or about 

November 22, 1996, prior to the equitable distribution hearing, 

the failure by either party to raise the issue at the equitable 

distribution hearing was "a mutual mistake or oversight." Thus, 

the commissioner ruled that the stock options were marital 

property and that she would proceed to equitably distribute them. 

She further ruled that the valuation date for the stock options 

should be April 8, 1996, the date the parties separated, because 

the parties agreed to that evaluation date as to the other 

property at the December 21, 1998 hearing. The commissioner 
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further found that as of April 8, 1996, the value of the options 

"on paper" was $12,925 but, because of the speculative nature of 

the options, they had zero marital property value. 

 The trial court's final decree dated January 27, 2000 

provided: 

[Wife's] failure to raise the stock options 

as an issue at the equitable distribution 

hearing in this matter in June 1997 was an 

oversight by [wife]. The court concludes 

that the Commissioner erred by finding that 

the total value of the marital share of 

stock was zero. The court finds that the 

value of the Wachovia stock at issue was 

$12,925 on the date of the separation of the 

parties, April 8, 1996, and awards [wife] 

50% of that sum, which is $6,462.50. 

B. Child and Spousal Support

 As to matters of child and spousal support, in May 1996, the 

court had entered an interlocutory decree ordering that the 

parties’ two children shall reside with wife at the marital 

residence, husband shall pay wife $1,323 per month in temporary 

child support, and pay the mortgage and utilities for the marital 

residence. In February 1997, the circuit court modified the 

spousal support award and ordered husband to pay wife $500 per 

month in temporary spousal support. In April 1998, the juvenile 

and domestic relations district court transferred custody of the 

two children to husband and ordered wife to pay husband $128.31 

per month in child support. Husband appealed the child support 

order, arguing that wife should be required to pay more child 
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support because she was voluntarily unemployed and income should 

be imputed to her. 

 At the circuit court hearing conducted in March 1999, wife 

testified that she had enrolled in the seminary at Baylor 

University in Waco, Texas in November 1998. Prior to relocating, 

wife had been employed at Gentle Shepherd Hospice for 

approximately six months at an annual salary of $30,000 with the 

possibility of earning "on-call pay." She voluntarily left that 

employment in July 1998 because she was unhappy at the position 

and was required to perform duties for which she was not 

qualified. When she left her employment, wife knew that she 

intended to pursue her studies in women's ministries. Wife 

further testified that she could no longer pursue a career in 

clinical nursing because she has been diagnosed with dyslexia. 

 At the time of the March 10, 1999 child and spousal support 

modification hearing, wife was paying husband $128.31 per month in 

child support and husband was paying wife $500 per month in 

spousal support. Following the hearing on child and spousal 

support, the trial court suspended both support obligations, 

giving the following explanation: 

The Court recognizes the authority it has to 

order spousal support and certainly to order 

child support. I don't know that I have 

done this before, but, based upon any 

figures I would have used and the tax 

consequences to him deducting spousal 

support and her having income on it and he 

clearly having the exemptions of the two 
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child dependants, the Court finds that is 

imminently equitable with all the history of 

this case, certainly with the expense he is 

about to incur and which I believe will be 

incurred regarding counseling for these 

. . . girls. 

 At a hearing on April 2, 1999, the trial court further 

stated: 

It was my opinion that when tax consequences 

were considered on the spousal support and 

the amount of child support that would have 

been awarded and the acrimony between the 

parties, that there would have been a 

virtual equality in payment one to other, 

that is, the former husband to the former 

wife and vice versa, in spousal support and 

the child support. 

 In an effort to limit and end this 

litigation, the Court simply suspended both 

based upon those very similar numbers and 

based upon the total inability of these 

people to communicate and get along hoping 

that they could then communicate and deal 

with one another with the children, who are 

more important than any of these other 

things that we are talking about. 

 I said to counsel on the face of it 

that doesn't look like the proper thing for 

the Court to do, but I hope everybody 

understands why the Court did as it did on 

the ongoing support payments. 

II. ANALYSIS

A. Stock Options

1. Finality of October 1997 Decree

 Neither party raised the issue of the stock options at the 

June 1997 equitable distribution hearing. Husband contends that 

the October 1, 1997 decree which followed that hearing was a 
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final decree and Rule 1:1 precluded the trial court from 

"reopening" the equitable distribution order to consider the 

stock option issue. However, the trial court ruled that the 

equitable distribution issues had not been finally litigated and 

wife was not precluded from having that issue decided. After 

considering the stock option evidence, the court valued the 

stock options as of April 8, 1996, the date of separation, at 

$12,925 and ordered that husband pay wife half of that sum. 

 "A final decree is one 'which disposes of the whole subject, 

gives all the relief that is contemplated and leaves nothing to 

be done by the court.'" Wells v. Wells, 29 Va. App. 82, 85-86, 

509 S.E.2d 549, 551 (1999) (quoting Erikson v. Erikson, 19 Va. 

App. 389, 390, 451 S.E.2d 711, 712 (1994) (internal quotation 

marks and citations omitted)). 

 We agree with the trial court that the October 1, 1997 

equitable distribution order did not dispose of all the equitable 

distribution issues and, therefore, was not a final decree. The 

decree provided for the sale of the marital residence and the 

distribution of the proceeds, distribution of the husband's 

retirement accounts, and distribution of husband's partnership 

interest in C&T Properties. However, the trial court did not 

determine the value of husband's interest in C&T properties or 

equitably divide that asset. Rather, the court directed that the 

parties shall either agree to the value of the husband's interest 
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or engage the services of an appraiser. If the parties could not 

reach an agreement, the matter would be scheduled for a hearing. 

Clearly, the court was providing a method to evaluate this marital 

asset. Further, the court stated, with respect to husband's 

combined 401K and Thrift Savings Plan, that wife shall receive 

one-half of the balance of the account, less any contributions 

made by husband after the date of separation. The court ordered 

that "the parties shall endeavor to reach agreement concerning the 

value of said contributions. If the parties are unable to reach 

agreement," then the matter may be set for a hearing. Here again 

the court directed the method by which the court and parties were 

to value this marital asset. Additionally, the trial court stated 

that it was taking the attorney's fees and spousal and child 

support issues under advisement, pending the sale of the marital 

home. 

 Accordingly, we find that, although the October 1, 1997 

equitable distribution order purported to distribute the parties' 

assets, some of the assets had not been valued, and valuation was 

contingent upon agreement of the parties or was pending a further 

hearing. Therefore, the October decree was an interlocutory 

decree, and the trial court retained jurisdiction to consider 

further valuation and distribution of the marital assets. 
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2. Valuation of Stock Options

 The trial court conducted the first evidentiary hearing on 

the marital assets in June 1997 and entered its interlocutory 

equitable distribution decree in October 1997. After the court 

entered the interlocutory equitable distribution decree, wife 

requested equitable distribution of husband's stock options. The 

trial court conducted a separate hearing in September 1999 solely 

for the purpose of determining the classification and value of the 

stock options, all of which had been acquired during the marriage. 

In December 1998, prior to the equitable distribution hearing, 

husband had exercised the options and purchased the stock. 

 We hold that the trial court erred in finding that the value 

of the marital asset was the value of the stock options as of the 

date of separation, rather than the net value of the stock at the 

time the stock had been sold. We do not agree that wife 

acquiesced in using the date of separation as the date for valuing 

the stock options merely because she may have agreed upon that 

date for valuing other marital assets. The fact that she 

acquiesced in using the separation date as the appropriate date 

for valuing the property which the court was considering is not 

binding where the court later considers the value of other 

property that has significantly appreciated or depreciated in 

value due solely to passive factors. The valuation date should be 

that date which most accurately reflects the fair market value of 
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the asset to the parties. See Rowe v. Rowe, 33 Va. App. 250, 

264-65, 532 S.E.2d 908, 915-16 (2000). 

 Admittedly, had the court been required to value the stock 

options as of the separation date, their value would have been 

speculative as the special commissioner and trial court ruled. 

However, because the valuation hearing for this asset took place 

after the options had been exercised and after the stock had been 

sold, the value of the marital asset had been fixed and the court 

erred in not using the date of the evidentiary hearing to 

determine the value of the asset. 

"We have stressed that the trial judge in 

evaluating marital property should select a 

valuation 'that will provide the Court with 

the most current and accurate information 

available which avoids inequitable 

results.'" Gaynor v. Hird, 11 Va. App. 588, 

593, 400 S.E.2d 788, 790-91 (1991) (quoting 

Mitchell v. Mitchell, 4 Va. App. 113, 118, 

355 S.E.2d 18, 21 (1987)); see also Wagner 

v. Wagner, 16 Va. App. 529, 531, 431 S.E.2d 

77, 78 (1993) (en banc) (stating that "the 

reasons for re-valuation on remand are the 

same as in the original hearing -- to obtain 

the most accurate valuation and equitable 

distribution"). We held [in Mitchell] that 

because the Code "does not fix a date for 

determining the value of [the parties' 

assets], the trial court must select a 

valuation date if the parties cannot agree 

to one." Mitchell, 4 Va. App. at 118, 355 

S.E.2d at 21. The 1998 amendments to Code 

§ 20-107.3(A) codified the rule announced in 

Mitchell. Code § 20-107.3(A) provides: 

"The court shall determine the value of any 

such property as of the date of the 

evidentiary hearing on the evaluation issue. 

Upon motion of either party made no less 
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than twenty-one days before the evidentiary 

hearing the court may, for good cause shown, 

in order to attain the ends of justice, 

order that a different valuation be used." 

Rowe, 33 Va. App. at 263-64, 532 S.E.2d at 915. 

 Here, the court erred by not adhering to the mandate of 

Code § 20-107.3(A) to use the date of the evidentiary hearing 

for evaluating the marital asset. We hold, therefore, that the 

trial court erred in failing to value the stock options as of the 

date of the September 1999 evidentiary hearing, which was after 

husband had exercised the options and the value of the asset had 

become fixed. On remand, the trial judge shall determine the 

actual net value of the stock as of the date of the evidentiary 

hearing and shall then equitably distribute the net value of the 

marital asset between the parties in accordance with the 

provisions of Code § 20-107.3(E). While we note the husband 

invested significant funds in order to exercise the options, on 

these facts the capital investment to exercise the options, even 

if partly from separate funds, was not at risk since the stock had 

to be sold immediately and, therefore, the increase in value was 

marital because it was not the result of the husband's active 

efforts. See Code § 20-107.3(A)(1). 

B. Child and Spousal Support

 We next consider the propriety of the trial court's order 

"offsetting" husband's spousal support obligation against wife's 

child support obligation and suspending any child or spousal 
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support awards. We hold that the trial court erred by offsetting 

the support obligations, by failing to calculate and order the 

payment of the child support and spousal support awards, and by 

suspending the determination of the child or spousal support 

award. 

 In April 1998, the juvenile and domestic relations district 

court transferred custody of the parties' two children to husband 

and ordered wife to pay husband $128.31 per month in child 

support. While it is unclear from the record how the court 

determined the $128.31 amount, apparently the juvenile and 

domestic relations district court had awarded this amount based 

upon the parties' actual incomes and by applying the child support 

guidelines. The juvenile and domestic relations district court 

also had ordered husband to pay wife $500 per month spousal 

support. Thus, at the time the circuit court heard the child and 

spousal support issues, the wife had been ordered to pay husband 

$128.31 per month for support of the two children and husband had 

been ordered to pay wife $500 per month for spousal support. 

 When the issues of child and spousal support then came before 

the trial court for a permanent award, the wife took the position 

that her $500 per month spousal support award should be increased 

and that no income should be imputed to her for purposes of either 

spousal or child support because she is a full-time student and is 

not capable of gainful employment in her prior profession as a 
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nurse. The husband contended, on the other hand, that wife is 

fully capable of gainful employment as evidenced by her last 

employment at an annual salary of $30,000 and that income should 

be imputed to her for purposes of reducing her spousal support 

award and increasing her child support obligation. 

 The trial court found that wife was voluntarily unemployed, 

that she was capable of being gainfully employed, and imputed 

income of $30,000 per year to her. However, without determining 

the amount of child support to which the children were entitled or 

the amount of spousal support to which the wife might be entitled, 

the trial court then suspended husband's spousal support 

obligation and wife's child support obligation. 

 As we have held, "pursuant to Code § 20-108.1(B) . . . the 

court has an affirmative duty to calculate expressly the 

presumptive guideline amount of child support under the 

guidelines and, if it deviates from that presumptive amount, to 

explain adequately the basis for such deviation." Herring v. 

Herring, 33 Va. App. 281, 287, 532 S.E.2d 923, 927 (2000). "The 

trial court's deviation from the child support guidelines 

without first calculating and stating the presumptive amount of 

support due constitute[s] reversible error." Id. at 283-84, 532 

S.E.2d at 925. Moreover, an award that fails to state the 

presumptive amount of the award or the basis and amount of the 

deviation, does not provide an adequate basis for future 
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modifications of support. See id. at 288-89, 532 S.E.2d at 927. 

As we have stated, 

to allow the non-conforming award to stand 

without adequate explanation as to how the 

amount of support was determined would 

seriously handicap a court overseeing future 

modification proceedings because that court 

would have an insufficient understanding of 

the manner in which the existing award was 

set and the extent to which a change in 

circumstances might warrant a change in the 

amount of support. 

Id. at 289, 532 S.E.2d at 927 (citation omitted). 

 Here, the trial court, failed to "calculate expressly the 

presumptive amount of child support under the guidelines." 

Although the pre-existing award of $128.31 per month from the 

juvenile and domestic relations district court was presumably 

based on the child support guidelines, the circuit court, when 

considering permanent child support, is not relieved of the 

responsibility to determine the presumptive amount based on the 

child support guidelines. Even assuming that $128.31 would have 

been the correct presumptive amount under the guidelines, by 

offsetting or suspending the award the court deviated from the 

guidelines without making a sufficient explanation, particularly 

without addressing the effect that imputed income would have 

upon the determination. Although husband asks us to approve the 

trial court's ruling suspending his right to receive child 

support, he does so provided we suspend and offset his obligation 

to pay spousal support. We hold that husband's attempt to waive 
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child support is ineffectual; the father cannot waive the 

children's right of support from a parent. See generally Kelley 

v. Kelley, 248 Va. 295, 298, 449 S.E.2d 55, 56 (1994) 

("[P]arents cannot contract away their children's rights to 

support nor can a court be precluded by agreement from 

exercising its power to decree child support."). Child support 

and spousal support involve separate rights and obligations 

between different parties and are to be determined based on 

separate statutory factors. Cf. Code §§ 20-107.1(E) and 

20-108(B). For these reasons, a court is not authorized to 

offset one support obligation against another or to suspend 

those obligations. See Mosley v. Mosley, 30 Va. App. 828, 837, 

520 S.E.2d 412, 416-17 (1999) (holding that "a disabled, 

non-custodial parent may not receive credit for social security 

disability payments in excess of that due for child support as 

against past-due spousal support" because payments of child 

support are for the benefit of the child and are based on the 

child's status as a dependant of the non-custodial parent, 

whereas spousal support is awarded based on the circumstances of 

the parties' prior marriage); see also Poland v. Poland, 895 

S.W.2d 670, 672 (Mo. Ct. App. 1995) (holding that husband was 

not entitled to offset monies he owed wife for child support 

against monies wife owed him pursuant to property settlement 

agreement because wife received child support monies in trust 
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for the benefit of the children). Accordingly, the court erred 

in failing to expressly determine the child support award and 

the spousal support award amounts and erred in offsetting the 

awards against one another. Thus, we reverse the trial court's 

ruling and remand the spousal and child support awards to the 

trial court for determination. 

 In regard to the spousal support award, wife also contends 

that the trial court erred by failing to consider the factors 

articulated in Code § 20-107.1, by imputing $30,000 in income to 

her, and by making an insufficient award of spousal support. 

Because we have held that the trial court erred in its equitable 

distribution decision in valuing the stock options and in 

offsetting and suspending wife's child support obligation and 

husband's spousal support obligation, on remand the trial court 

must necessarily reconsider an award of spousal support in light 

of the factors set forth in Code § 20-107.1(E). See Code 

§ 20-107.1; Woolley v. Woolley, 3 Va. App. 337, 344, 349 S.E.2d 

422, 426 (1986) (holding that failure to consider the factors set 

forth in Code § 20-107.1 in determining the spousal support award 

constitutes reversible error). Therefore, we do not separately 

address the insufficiency of the spousal support award or the 

failure to apply the statutory factors since those matters will be 

reconsidered on remand. However, because the trial court's 

finding that wife was voluntarily unemployed and imputing $30,000 
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in income to her will affect the support awards on remand, we must 

address that issue. 

 "The decision to impute income is within the sound discretion 

of the trial court and its [decision] 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, 784 (1999) (citation 

omitted). In determining whether to impute income, "the trial 

court 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." Niemiec v. 

Commonwealth, 27 Va. App. 446, 451, 499 S.E.2d 576, 579 (1998) 

(citation omitted). Wife acknowledges that she voluntarily left 

her prior employment to attend the seminary and that her 

decision to do so rather than work is a sufficient basis to 

support the imputation of income. However, she argues that the 

amount of income imputed to her, $30,000, is not supported by 

the record. We disagree. At the time wife voluntarily left her 

employment with Gentile Shepherd Hospice, she was earning 

$30,000 per year plus on-call pay. Although wife asserted that 

she left her employment because she was displeased with the 

hours and type of work, she admitted that she voluntarily 

terminated her employment because she no longer wanted to pursue 

a career in nursing. See Antonelli v. Antonelli, 242 Va. 152, 
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156, 409 S.E.2d 117, 119-20 (1991) (finding that spouse is not 

prohibited from voluntarily changing employment; however, when 

the party, under a court-ordered obligation to pay child 

support, chooses to pursue other employment, the risk of the 

spouse's success is upon the spouse not the spouse's children). 

Accordingly, we hold that the trial court's order imputing $30,000 

annual income to wife, based on the facts that existed at the time 

of the trial court's order, was not erroneous and shall be 

considered by the trial court on remand to the extent that the 

imputation justifies a deviation from the child support 

guidelines, Code § 20-108.1(B)(3) and to the extent that it 

affects a spousal support award, Code § 20-107.1(9), (10) and 

(11). However, we note that, on remand, the trial court may need 

to consider any change in circumstances which, including but not 

limited to intervening employment, may have occurred during the 

pendency of the appeal that would affect the amount of income 

imputed to wife during any ensuing time periods. 

 For the foregoing reasons, we reverse the trial court's 

decree and remand for further proceedings consistent with this 

opinion. 

Reversed and remanded.