COURT OF APPEALS OF VIRGINIA

Present: Judg es 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 COUR T 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. Cleave land (Rider, Thomas, Cleaveland, Fe rris & 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 (wif e) and Joseph Tatum (husband) ap peal the circuit court's eq uitable distri bution, spousal su pport, and child support awards. Husban d argues that the ci rcuit court erred in reopening its equi table distribu tion order to co nsider the value and distributi on of his stock options. Wife argues that the- 2 - circuit court erre d in: (1) valuing husb and's stock options on the date of sepa ration; (2) offs etting the husb and's spousal support obligati on against wife's chil d support ob ligation; (3) failing to consider the spousal su pport factors set forth in Code § 20-107.1; (4) im puting income to her; and (5) aw arding 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 chil dren were born to the marriage. Wife is a registered nurse, but at the time of the parties' separation , wife had not been em ployed as a clinical nurse for nearly fourte en years. During th e marriage, husband was employed by Wach ovia Bank and, as part of his co mpensation, husband received stock options, all of which were acquired during the marriage and prio r to the final sepa ration. After the divorce, husband exerci sed his options and purchased 4,700 shares of stock for approximately $142,175. In December 1998, after husband exercise d the options, he sold the st ock for over $400,000. A. Stock Options A hearing on the eq uitable distribu tion issues was conducted in June 1997 and the trial court ente red an "Interlocutory Decree" dated October 1, 1997, in which the trial court equitably- 3 - distributed the pa rties' retirement accoun ts, vehicles, 401K plan, and husband's inte rest in C&T Prop erties. The tria l judge ordered that the marital resi dence be sold and th e parties di vide the proceeds equally and th at "they shall endeavor to ag ree upon the distribution of the household furn ishings." The decree further provided that th e "court takes un der advisement is sues concerning child support, spousal support, and an award of attorney's fees and costs, pending th e sale of the marita l property and other matters set forth in this order." At th e hearings preceding the October 1, 1997 decr ee, the partie s presented no evidence concerning the value or ownership of husban d's stock op tions and the decree did not ment ion the stock op tions. The de cree provided that in the event the parties were not able to agre e upon the sale or value of certain as sets they "may set th e matter for hearing." In August 1998, afte r all other equi table distribu tion issues had apparently be en resolved, wife filed a notice for a "pre-trial conference" "for the purpose of addressing a mechanism for the resolution of th e remaining issu es in this ma tter." Wife asserted, among ot her things, that the classification, evaluation, and distributi on of husband's st ock options remain ed an issue to be decided. In Januar y 1999, wife filed a mo tion for entry of an order finding that husband's stoc k options are ma rital property and awarding wife an equitable shar e. The record shows that wife was informed and knew of the existence of the stock op tions as- 4 - early as November 22, 1996, when she was prov ided the information concerning husband's ownership in "Suppl emental An swers to Defendant's Inte rrogatories." The trial cour t referred the issue to a commissioner in chancery. The commis sioner opined that the trial court had jurisdiction to hear and decide the issu es concerning the stock options because the trial court' s October 1, 19 97 decree was interlocutory and was not a fina l decree equitabl y distributing all of the parties' pr operty. The commission er specifically noted that the October decree provided, with resp ect to the parties' 401K and thrift saving s plan, "[t]hat the parties sh all endeavor to reach agreement concerning the value of sa id contributi ons. If the parties are un able to reach ag reement, then the parties may set the matter for hear ing." The commissioner further fo und that, although husband inform ed wife of the stock options on or about November 22, 1996, prio r to the equitable di stribution hearing, the failure by either party to raise the is sue at the equitable distribution hearing wa s "a mutual mistake or oversight." Thus, the commissioner ruled that the stock options were marital property and that she would proceed to equita bly distribute them. She further ruled that the valuation date for the st ock options should be April 8, 1996, the date the pa rties separate d, because the parties agreed to that evaluation date as to the other property at the December 21, 1998 hearin g. The co mmissioner- 5 - further found that as of April 8, 1996, the value of the options "on paper" was $12,925 but, because of the sp eculative na ture of the options, they had zero marita l 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 sp ousal support, inMay 1996, the court had entere d an interlocut ory decree orde ring that the parties’ two childrenshall reside with wife at th e marital residence, husband shal l pay wife $1,323 pe r month in temporary child support, and pay the mortga ge and utilities for the marital residence. In Febr uary 1997, the circui t court modi fied the spousal support aw ard and ordered husband to pay wife $500 per month in temporary spou sal support. In April 1998, the juvenile and domestic relations district court transf erred custod y of the two children to husband and ordere d wife to pay husband $128.31 per month in child supp ort. Husband appealed the child support order, arguing that wi fe should be requiredto pay more child- 6 - support because she was voluntarily unemployed and income should be imputed to her. At the circuit cour t hearing cond ucted in March 1999, wife testified that she had enrolledin the semina ry at Baylor University in Wa co, Texas in November 1998 . Prior to relocating, wife had been employed at Gentle ShepherdHospice for approximately si x months at an annual sa lary of $30, 000 with the possibility of earning "on-call pay." She vo luntarily left that employment in July 1998 because she was unhappy at the position and was required to perform du ties for which she was not qualified. Whenshe left her employment , wife knew that she intended to pursue her studies in women's mini stries. Wife further testif ied that she could no long er pursue a career in clinical nursing becaus e she has been diagnose d with dyslexia. At the time of th e March 10, 1999 chil d and spousa l support modification hearing, wife was paying husban d $128.31 pe r month in child support an d husband was pa ying wife $500 per month in spousal support. Following th e hearing on ch ild and spousal support, the trial court suspended both support obligations, giving the follow ing 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- 7 - 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- 8 - 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 th at the October 1, 1997 equitable dist ribution order did not disp ose of all th e equitable distribution issues an d, therefore, was not a final decree. The decree provided for the sale of th e marital residence and the distribution of the proceeds, distribution of the husband's retirement accounts, and distributionof husband' s partnership interest in C&T Properties. However, the trial court did not determine the valu e of husband's in terest in C&T properties or equitably divide that asset. Ra ther, the court di rected that the parties shall eith er agree to the value of the husband' s interest- 9 - or engage the services of an appraise r. If the pa rties could not reach an agreement, th e matter would be sche duled for a hearing. Clearly, the court was providing a meth od to evaluate this marital asset. Further, the court stat ed, with respec t to husband's combined 401K an d Thrift Savings Plan, th at wife sh all receive one-half of the balance of the account, less any contributions made by husband after the date of separation. Th e court ordered that "the partie s shall endeavor to reach agreemen t concerning the value of said co ntributions. If the part ies are unable to reach agreement," thenthe matter may be set for a hearin g. Here again the court directed the method by which the court an d parties were to value this marital asset. Additi onally, the tria l court stated that it was taki ng the attorney's fees and spousa l and child support issues under ad visement, pendin g the sale of the marital home. Accordingly, we fi nd that, although th e October 1, 1997 equitable dist ribution order purported to distribute the parties' assets, some of the assets had not been valued, and va luation was contingent upon agreement of the parties or was pendin g a further hearing. Theref ore, the October decree was an interlocutory decree, and the tr ial court retain ed jurisdictionto consider further valuatio n and distributi on of the mari tal assets.- 10 - 2. Valuation of Stock Options The trial cour t conducted the first evidentiar y hearing on the marital assets in June 1997 and en tered its in terlocutory equitable dist ribution decree in Octobe r 1997. After the court entered the inte rlocutory equitable distribution decree, wife requested equitable distribu tion of husb and's stock op tions. The trial court conduc ted a separate hearing inSeptember 1999 solely for the purpose of determining the classification an d value of the stock options, all of which had been acquiredduring the marriage. In December 1998, prio r to the equitable di stribution hearing, husband had exercised the options and purchased the stock. We hold that the tr ial court erred in finding that the value of the marital asset wa s the value of the stoc k options as of the date of separation, rather than the net value of the stock at the time the stock had be en sold. We do no t agree that wife acquiesced in usin g the date of se paration as the date for valuing the stock options merely because she may ha ve agreed upon that date for valuing othe r marital asse ts. The fact that she acquiesced in us ing the separation date as the ap propriate date for valuing the pr operty which the court was consider ing is not binding where th e court later co nsiders the va lue of other property that has si gnificantly appr eciated or depreciated in value due solelyto passive factor s. The valu ation date should be that date which mo st accurately reflects th e fair market value of- 11 - the asset to the parties. See Rowe v. Rowe , 33 Va. App. 250, 264-65, 532 S. E.2d 908, 91 5-16 (2000). Admittedly, ha d the court been requir ed to valu e the stock options as of th e separation date, their value would have been speculative as the spec ial commissioner and trial co urt ruled. However, because the va luation hearing for this asset took place after the options had been exercised and af ter the stoc k had been sold, the value of the marital asse t had been fixe d and the court erred in not using th e date of the evid entiary he aring 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- 12 - 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 Sept ember 1999 evidentiary he aring, which was after husband had exerci sed the options and the value of the asset had become fixed. On remand, the tria l judge shall determine the actual net value of th e stock as of the date of th e evidentiary hearing and shall then equitably di stribute the net value of the marital asset between the partie s in accordance with the provisions of Code § 20-107.3(E ). While we no te the husband invested significant fu nds in order to exerci se the options, on these facts the ca pital investme nt to exercise th e options, even if partly from separate funds, was not at ri sk since the stock had to be sold immediatel y and, therefore, the increase invalue was marital because it was not the re sult of the hu sband's active efforts. See Code § 20-107.3(A)(1). B. Child and Spousal Support We next consider the propri ety of the tria l court's order "offsetting" husband's spousal support obligation against wife's child support ob ligation and suspending any child or spousal- 13 - support awards. We hold that the trial co urt erred by offsetting the support obliga tions, by fail ing to calculat e and order the payment of the child support and spou sal support aw ards, and by suspending the determ ination of the child or spousal support award. In April 1998, the juvenile and domestic relations district court transfer red custody of the parties' two childrento husband and ordered wife to pay husban d $128.31 per mo nth in child support. While it is unclear from the recordhow the court determined the $128.3 1 amount, appa rently the juvenile and domestic relations dist rict court had awarde d this amount based upon the parties' actu al incomes and by appl ying the child support guidelines. The juveni le and domestic rela tions district court also had ordered husb and to pay wife $500 per month spousal support. Thus, at the time the circuit court heard th e child and spousal support is sues, the wife had been ordered to pay husband $128.31 per month for support of the two ch ildren and husband had been ordered to pay wife $500 per month for spousal support. When the issues of child and spousa l support then came before the trial court for a permanent awar d, the wife took the position that her $500 per mont h spousal suppor t award should be increased and that no income should be impute d to her for purp oses of either spousal or child suppor t because she is a full -time studen t and is not capable of gainful employment in her prior prof ession as a- 14 - nurse. The husb and contended, onthe other hand, that wife is fully capable of gainful employme nt as evidence d by her last employment at an annual salary of $3 0,000 and that income should be imputed to her for purposes of re ducing her spousal support award and increasi ng her child support obligation. The trial cour t found that wife was voluntarily unemployed, that she was capable of being gainfully employed, and imputed income of $30,00 0 per year to he r. However, wi thout dete rmining the amount of chil d support to which the chil dren were entitled or the amount of sp ousal support to which the wife mi ght be entitled, the trial court then suspended husban d's spousal support obligation and wife's ch ild support ob ligation. 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- 15 - 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 ru ling suspending his ri ght to receive child support, he does so provided we suspend and offset his obligation to pay spousal su pport. We holdthat husband's attempt to waive- 16 - child support is ineffectual; the father cann ot waive the children's right of su pport 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- 17 - 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 sp ousal support aw ard, wife also contends that the trial court erred by failing to consider the factors articulated in Co de § 20-107.1, by imputing $30,000 in income to her, and by making aninsufficient award of spousal su pport. Because we have held that the tr ial court erred in its equitable distribution decisionin valuing the st ock options and in offsetting and suspen ding wife's child su pport obliga tion and husband's spou sal support obliga tion, on remand the trial court must necessarily recons ider an award of spou sal support in light of the factors se t 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) (holdi ng that failure to co nsider the factors set forth in Code § 20-107 .1 in determin ing the spousal support award constitutes re versible error). Therefore, we do not separately address the insu fficiency of the spousa l support aw ard or the failure to apply the st atutory factors since those matt ers will be reconsidered onremand. However, be cause the tr ial court's finding that wife was voluntarily unemployed and im puting $30,000- 18 - in income to her will affect the support awards on remand, we must address that issue. "The decision to im pute income is withinthe sound discretion of the trial court and its [decision] will not be reversed unless plainly wrong or unsuppor ted by the evidence." Blackburn v. Michael , 30 Va. App. 95, 10 2, 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,- 19 - 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 tr ial 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 erro neous and shall be considered by th e trial court on remand to the extent that the imputation justifies a deviat ion from the child support guidelines, Co de § 20-108.1(B)( 3) and to the ex tent that it affects a spousal support award, Code § 20-107.1 (9), (10) and (11). However, we no te that, on remand, th e trial cour t may need to consider any change in circumstan ces which, incl uding but not limited to intervening employment, may have occurred during the pendency of the appeal that woul d affect the amou nt of income imputed to wife du ring any ensuing ti me periods. For the foregoing reasons, we revers e the tria l court's decree and remand for further proceedings consistent with this opinion. Reversed and remanded.