COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick,* Judges Baker and Annunziata 

Argued at Alexandria, Virginia 

ZUBAIR AHMAD SALEEM 

 

v. Record No. 0443-97-4 

AFSHAN GHIAS SALEEM, A/K/A 

 AFSHAN NOREEN QURESHI 

 OPINION BY 

 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 JANUARY 20, 1998 

AFSHAN GHIAS SALEEM, A/K/A 

 AFSHAN NOREEN QURESHI 

v. Record No. 0444-97-4 

ZUBAIR AHMAD SALEEM 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Michael P. McWeeny, Judge 

 Lawrence D. Gaughan (Gaughan & Schargorodski, 

on briefs), for Zubair Ahmad Saleem. 

 Bruce Richard Eells (John P. Snider; 

Matthews & Snider, on briefs), for Afshan 

Ghias Saleem, a/k/a Afshan Noreen Qureshi. 

 These are appeals from a modification of child support 

decree entered by the Circuit Court of Fairfax County (trial 

court). Zubair Saleem (husband) contends the trial court erred 

in: (1) applying the support law of New York to determine his 

child support obligation for his daughter, Nadia; and (2) failing 

to impute income to Afshan Saleem (wife). 

 Wife filed a cross-appeal contending the trial court erred 

 

 *On November 19, 1997, Judge Fitzpatrick succeeded Judge 

Moon as chief judge. 
 2 

in: (1) determining that the law of Virginia would control the 

duration of husband's support obligation; and (2) making findings 

of fact that are not supported in the trial record. 

 I. Background 

 Husband and wife were married in Pakistan on December 30, 

1974. Three children were born of the marriage: Nadia, born 

March 6, 1980; Seth, born July 10, 1982; and Gibran, born May 28, 

1984. The parties separated, entered into a property settlement 

agreement (PSA) on November 13, 1986, and were divorced by final 

decree on May 17, 1988. 

 The PSA provided for joint legal custody of the children, 

with their principal residence from the date of the parties' 

separation to May 28, 1991 with wife. After May 28, 1991, the 

principal residence of the parties' two sons would be with 

husband. Husband agreed to pay child support for the three 

children while they lived with wife. The payments would continue 

until "the change of residence of [the boys], at which time 

[wife] shall be solely responsible for [the daughter's] support 

and [husband] shall be solely responsible for [the sons'] support 

. . . ." The child support provision also included the following 

language: "In any event, [husband's] and [wife's] obligation for 

child support shall terminate whenever a child dies, reaches the 

age of 18 years, or otherwise becomes emancipated, whichever 

comes first." 

 On August 9, 1988, the parties executed an amendment to the 
 3 

PSA, which was incorporated into the trial court's modification 

decree of March 25, 1989. The amendment changed the principal 

residence of all three children to husband and terminated his 

child support obligation as of August 15, 1988. Paragraph two of 

the amendment and modification decree contained the following 

provision regarding the parties' child support obligations: 

 In the event that the principal residence of 

one or two of the children should revert to 

[wife], any provision of said child support 

shall be subject to further agreement by the 

parties, and if no agreement is reached, such 

support shall be determined on the basis of 

the laws of the jurisdiction(s) in which the 

children are residing at that time. 

(Emphasis added). 

 By order dated February 23, 1996, custody of the parties' 

daughter was awarded to wife. The parties could not reach an 

agreement regarding the terms of husband's child support 

obligation for Nadia, and wife filed a motion for support, 

alleging a change of circumstances. 

 Prior to trial, the parties filed a preliminary motion 

requesting that the trial court determine which state's law would 

apply to the computation of Nadia's support. In its July 29, 

1996 opinion letter, the trial court referred to paragraph two of 

the Amendment and found as follows: 

 It is clear . . . that the parties 

contemplated the possibility of the children 

being "split" between two jurisdictions and 

on the plain meaning of the language intended 

the law of each jurisdiction to apply to the 

child or children in that jurisdiction. 

Thus, New York law will apply to Nadia and 

Virginia law will apply to the boys. 
 4 

 A hearing regarding child support and visitation was held on 

August 19, 1996. Testimony was presented regarding the 

daughter's expenses, wife's employment history, and her recent 

efforts to find work. Wife last worked in 1990, made 

approximately $26,000 per year and was asked to resign from this 

position as well as from an earlier job. At the conclusion of 

the hearing, the court indicated that it did not think it had 

jurisdiction to order child support for the daughter beyond "the 

Virginia 18 or 19 rule." 

 On December 13, 1996, the trial court entered a final order 

regarding child support for the parties' daughter and determined 

"pursuant to its letter opinion of July 29, 1996 . . . made part 

of the record herein, that New York law shall apply to how child 

support is calculated for [the daughter], and that the Virginia 

procedure for split custody shall be applied." The order further 

provides: 

 Virginia law shall apply to the duration of 

the child support award for all three 

children . . . and . . . this Court is bound 

by the limitations of [Code § 20-124.2(C)] as 

to the period for which child support is 

payable. . . . [T]here was no stipulation 

either in the [Property Settlement] Agreement 

or the Amendment which extends the child 

support obligation ". . . beyond when it 

would otherwise be terminated as provided by 

law." There is therefore no authority to 

vary the provisions of [Code § 20-124.2(C)]. 

 Additionally, the trial court found "no basis to impute 

income to [wife]. . . . [I]t is not a question of how much. It 

is a question of whether or not it falls under the Brody rule." 
 5 

See Brody v. Brody, 16 Va. App. 647, 432 S.E.2d 20 (1993). Both 

parties appeal this ruling.1 

 II. Application of New York Child Support Procedure 

 Husband initially contends the trial court erred in using 

the New York child support formula to establish his support 

obligation for Nadia without first establishing the presumptive 

amount of support as required by Code § 20-108.1. We agree. 

 "The starting point . . . for determining the child support 

obligation of a party, whether initially or at a modification 

hearing, is to compute the presumptive amount using the schedule 

found in Code § 20-108.2(B)." Watkinson v. Henley, 13 Va. App. 

151, 158, 409 S.E.2d 470, 473 (1991). In any such proceeding, a 

trial court must first determine the presumptive amount of child 

support before considering any other factors. See Richardson v. 

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

 

 1Wife contends that Rule 5A:18 bars our consideration of 

husband's appeal concerning the application of the New York 

support law. This contention is without merit. Husband argued 

this issue throughout the proceedings, and he specifically noted 

the following on the December 13, 1996 decree: 

 Objection to calculating child support amount 

for Nadia A. Saleem pursuant to New York law; 

objection to not imputing income to 

Complainant; objection to court's finding 

Defendant's gross monthly income at $7,068.00 

and not allowing any deduction of gross 

amount due to FICA withholdings allowed 

pursuant to New York law or for costs 

incurred in producing income; objection to 

adding $200.00 monthly in extra-ordinary 

medical expenses to Complainant's expenses 

for Nadia A. Saleem. 
 6 

which may be considered in determining whether to deviate from 

the established amount is "[a] written agreement between the 

parties which includes the amount of child support." Code 

§ 20-108.1(B)(16). 

 [A] trial court need not award child support 

in the statutorily presumptive amount if a 

deviation from such an amount is justified. 

However, it must determine the guideline 

amount and then may compare this amount with 

the provisions of the separation agreement. 

If the factors . . . justify an award based 

upon the provisions of the separation 

agreement . . . it may then enter an award in 

the amount provided. 

Scott v Scott, 12 Va. App. 1245, 1249, 408 S.E.2d 579, 582 

(1991). See Alexander v. Alexander, 12 Va. App. 691, 406 S.E.2d 

666 (1991). 

 The trial court had no statutory authority to establish 

child support using the law and procedure of a different forum 

without following the procedure outlined in Code § 20-108.1. The 

parties' contractual agreement may not confer such authority when 

it is not otherwise granted by statute. A parent's ability to 

unilaterally determine the child support amount and the procedure 

for arriving at that obligation have been legislatively 

curtailed. Our child support guidelines were enacted by the 

General Assembly in furtherance of national policy intended 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 . . . awards." Richardson, 12 

Va. App. at 20, 401 S.E.2d at 895. "The language of the statute 
 7 

reflects the General Assembly's decision to adopt the income 

shares model for child support guidelines." Farley v. Liskey, 12 

Va. App. 1, 4, 401 S.E.2d 897, 899 (1991). 

 We find no authority for wife's position that the parties 

may override the legislative scheme by agreeing to establish a 

different process for arriving at the appropriate support amount 

or that any error in failing to follow the mandatory procedure 

was harmless. Code § 20-108.1 provides a rebuttable presumption 

that the guidelines in Code § 20-108.2 establish the correct 

amount of child support. Code § 20-108.1(B)(16) authorizes a 

trial court to deviate from the presumptive guideline amount upon 

consideration of "[a] written agreement between the parties which 

includes the amount of child support." However, this variance 

provision has limited scope and can be considered only after the 

procedure mandated by the statute is followed, that is, only 

after a calculation of the presumptive amount is made. 

 Additionally, Code § 20-108.1(B)(16) refers to a written 

agreement that sets forth a different amount, not a different 

process. Thus, even if the parties specifically agreed to apply 

New York law, the New York guidelines could only be used to 

suggest an alternate amount of child support. Once the trial 

court determined the presumptive amount under the Virginia 

guidelines it could consider whether the New York amount was 

authorized by the parties' agreement as a deviation from the 
 8 

 

guidelines under Code § 20-108.1(B)(16).2

 The trial court erred 

in finding that the parties' agreement controlled whether "New 

York law shall apply to how child support is calculated for 

[Nadia]." 

III. Duration of Support 

 In her cross-appeal, wife argues that once the trial court 

used New York law to determine the amount of support for Nadia, 

it was also bound to apply New York law to the duration issue. 

Her argument is without merit, because the trial court erred in 

substituting New York law for the Virginia guidelines. The 

parties' agreement to apply New York law merely supplied an 

alternate amount of child support and was relevant only as a 

factor under Code § 20-108.1(B)(16). Since the trial court's 

reliance on the child support law of New York was misplaced, 

wife's argument to extend that reliance fails. 

 Wife also argues that the plain meaning of the amendment 

provision that "if no agreement is reached, such support shall be 

determined on the basis of the laws of the jurisdiction(s) in 

which the children are residing" demonstrates the parties' intent 

that all aspects of the relevant jurisdiction's support statutes 

 2Husband's contention that the agreement is so ambiguous 

that it should not be a reason to deviate from the presumptive 

amount is without merit. The language demonstrates the parties' 

intention that the law of the jurisdiction in which the children 

resided at the time would be considered. This agreement is a 

factor to which the trial court may refer as a reason to deviate 

if it concludes that "application of [the guidelines] would be 

unjust or inappropriate." Cooke v. Cooke, 23 Va. App. 60, 63, 

474 S.E.2d 159, 160 (1996) (citation omitted). 
 9 

apply, including duration. While "the court may confirm a 

stipulation or agreement of the parties which extends a support 

obligation beyond when it would otherwise terminate as provided 

by law," Code § 20-124.2(C), we find no evidence to indicate that 

husband and wife intended that support for two of the children 

would terminate at nineteen while support for the other would 

last until twenty-one. The relevant provision in the Amendment 

has no such plain meaning, and the original PSA included the 

explicit provision that "[i]n any event, [the parties'] 

obligation for child support shall terminate whenever a child 

dies, reaches the age of 18 years, or otherwise becomes 

emancipated, whichever comes first." The trial court did not err 

in applying Virginia law and finding that child support would 

continue until the age of nineteen or high school graduation, 

whichever first occurs.3

IV. Imputed Income 

 Additionally, husband contends the trial court erred in 

failing to impute income to wife. "A trial court has discretion 

to impute income to [a party] who is voluntarily unemployed." 

Bennett v. Commonwealth, 22 Va. App. 684, 691, 472 S.E.2d 668, 

672 (1996). See Code § 20-108.1(B)(3). The trial court's 

decision not to impute income "will be upheld on appeal unless it 

is plainly wrong or unsupported by the evidence." Bennett, 22 

 

 3Because we reverse and remand on the issue of the proper 

amount of child support, wife's additional argument regarding the 

trial court's record is moot. 
 10 

Va. App. at 691-92, 472 S.E.2d at 672 (citation omitted). In the 

instant case, wife gave uncontradicted testimony that she was 

asked to resign from her prior employment and that she has made a 

limited effort to obtain work in New York. The trial court's 

decision not to impute income is supported by evidence and was 

not an abuse of discretion. Nonetheless, the question of 

imputation must be addressed anew on remand. Imputation of 

income is a factor to be considered in deciding whether to 

deviate from the presumptive amount of child support, and "[a]ny 

child support award must be based on circumstances existing at 

the time the award is made." Sargent v. Sargent, 20 Va. App. 

694, 703, 460 S.E.2d 596, 600 (1995). 

 We hold that it was error to award child support based on 

New York law without first determining whether the presumptive 

amount of support calculated pursuant to the Virginia child 

support guidelines was inappropriate. Additionally, in the 

absence of an explicit agreement extending child support, it was 

not error to limit the duration of support under Code 

§ 20-124.2(C). Finally, the trial court did not err in refusing 

to impute income to wife. For the foregoing reasons, we affirm 

in part, reverse in part, and remand. 

 Affirmed in part,

reversed in part,

and remanded.