COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatric k, Judges Elde r and Bumgardner

DANIEL BRIAN DRYSDALE MEMORANDUM OPINION * v. Record No. 24 38-99-3 PER CURIAM APRIL 4, 2000 DEBORAH WHIT T DRYSDALE

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY Duane E. Mink, Judge (Charles B. Phillips; Ph illips & Swanson, on brief), for appellant. (Deborah Whitt Drysdale, pro se , on brief).

Daniel Brian Drysdale (husband ) appeals the de cision of the circuit court gran ting his motion to modi fy spousal su pport paid to Deborah Whitt Drysdale (wife). Husband contends that the trial court erred by (1) fail ing to impute sufficie nt income to wife; (2) disregarding wife's responsibi lity for her fail ure to work at her maximum capabi lity; and (3) fail ing to consider income wife should be receiv ing from the equitable distribution monetary award. Upon reviewin g the record and briefs of the parties, we conclude that this ap peal is withou t merit. Acco rdingly, we summarily affi rm the decision of the trial court. See Rule 5A:27. As the party seek ing a modifica tion of spou sal support pursuant to Code § 20 -109, husband bo re the burden "to prove both

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.a material change in ci rcumstances and that this change warrants a modification of support." Schoenwetter v. Schoenwetter , 8 Va. App. 601, 605, 383 S.E. 2d 28, 30 (1989). "W e will not disturb the trial court's deci sion where it is based on an ore tenus hearing, unless it is 'plainly wrong or without evid ence to su pport it.'"

Furr v. Furr , 13 Va. App. 479, 481, 413 S.E.2d 72 , 73 (1992) (citation omitted). The parties were divorced by de cree entered July 13, 1998. Under the terms of the decree, husb and was ordered to pay $1,750 in monthly spousa l support to wife and approximat ely $3,900 in monthly mortga ge payments until the mari tal residence was sold. After the sale of the marital home, husband's monthly spousal support obliga tion automaticall y increased to $2 ,490. The home was sold prior to July 1999. Wife also rece ived a cash monetary award of just under $8 5,000 in equitable dist ribution as a portion of her share of the pa rties' marital assets. The trial court also ordered husband to pay $25,000 in wife's at torney's fees . Husband received custody of th e parties' three childr en. The trial court retained the case on its docket pending a hearing on husband's request for child support and for a reduction of sp ousal support. In December 1998 , husband filed a pe tition seeking to terminate or reduce sp ousal support an d for child su pport. The parties presen ted evidence in a hearing on July 28, 1999. Based upon the evidence, the trial court refu sed to reduce the amount of spousal support pa id to wife, finding that wife ne eded "additional

- 2 -time in order to take some additional refr esher courses in order to reacquaint herself with some of the mo re current business procedures." Ho wever, the trial court granted husband's motion to impute income to wife , finding that she wa s capable of earning $15,750 annual ly. The trial co urt found that wi fe was obligated to pay child support to husband, and offset wife's child support obligation by th e amount of spou sal support due her. Husband objected to the trial court's orde r, arguing that wife was capable of earning more in come than found by the trial court. Imputation of Income Husband argued successfully be fore the trial court that it was appropriate to impute some income to wife. "A tr ial court has discretion to im pute income to either or both the cu stodial or noncustodial parent who is voluntaril y unemploy ed." Bennett v. Commonwealth ex rel. Bennett , 22 Va. App. 684, 691, 472 S.E.2d 668, 672 (1996); see Code § 20-108.1 (B)(3). Evidence presented at the hearing indica ted that wife ha d worked prior to the parties' separation in 19 92. Husband's vo cational expert testified that wife was qualified by her past work experience in one of three progressively hi gher strata. The lowest level of receptionist had a salary range of $15, 750 to $16,200. Whil e the expert witness testified that he reviewed the medical examination reports on wife, he admitted th at he did no t address any psychological problems which wife mi ght have. Other eviden ce presented at the hearing indica ted that wife ha d weekly counseli ng for alcohol
- 3 -abuse and depressi on, received monthly inje ctions for back muscle spasms, and regula rly took prescription me dicine for depression. The trial court fo und that the eviden ce supported an imputation of $1 5,750 in annual income to wife, whic h was "the lowest of all le vels of income presente d to this Court by the [husband's] vo cational rehabilitation ex pert citing the [wife's] qualifications and the employment opportunitie s available" in the area. Because the am ount of income impu ted was supp orted by evidence in the record, and was no t an abuse of discretion, we affirm the trial court' s decision to impute $15,750 in income to wife. Voluntary Un employment Husband also asserts that the trial court erred by failing to place proper weight on the voluntary nature of wife's unemployment. He argues that no evidence supported wife 's claims of physical or ps ychological in ability to work. He points to the testimony of the physic al therapist wh o indicated that wife failed to put forth the minimu m effort necessary to have valid testing. He also contends that no evidence suppor ted the tria l court's finding that wife needed additional time to refresh he r business skills. Wife testified that she not on ly continued to have a problem with alcohol abuse, fo r which she rece ived weekly co unseling, but also that she su ffered from depr ession and chro nic pain. The trial court th at heard th e evidence ore tenus had the op portunity

- 4 -to weigh and eval uate the credibil ity of the witnes ses, including wife. While we agree with husband that th ere was no evidence presented conc erning wife's need to im prove her job skills, other evidence supports th e trial court's finding that wife was not currently prepar ed for employment. We find no er ror or abuse of discretion in the trial court' s determination on this issue. Income from Mo netary Award Husband's final contention is that the trial court erred by failing to consider in terest income earned by wife from her equitable distri bution monetary award. While husband raised this objection to the trial court's order, we find no in dication that he presented suff icient evidence in the hearing to support the inclusion of any additi onal income. Husban d does not refer to evidence in the record supporting the calc ulations set out in his brief on appeal. In th e absence of any eviden ce, an assessment of interest income wo uld be mere specul ation. Therefor e, we find no error in the trial cour t's failure to include interest income in wife's monthly earnings. Accordingly, the de cision of the circuit court is summarily affirmed. Affirmed.

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