COURT OF APPEALS OF VIRGINIA 

Present: Judges Bumgardner, Humphreys and Agee 

Argued at Salem, Virginia 

WILLIAM BERNARD SIMMONS 

 MEMORANDUM OPINION* BY 

v. Record No. 1145-00-3 JUDGE RUDOLPH BUMGARDNER, III 

 MARCH 20, 2001 

JOANNE (LINDSEY)(SIMMONS) HAIRSTON, F/K/A 

 JOANNE (LINDSEY) SIMMONS 

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY 

Charles B. Flannagan II, Judge 

 John B. Coleman (David L. Scyphers; 

Scyphers & Austin, P.C., on brief), for 

appellant. 

 Thomas R. Scott, Jr. (Benjamin A. Street; 

Street, Street, Street, Scott & Bowman, on 

brief), for appellee. 

 

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

designated for publication.

William Bernard Simmons and JoAnne Hairston were divorced 

by decree entered February 2, 1998. The final decree, not 

entered until April 18, 2000, set child support at $1,051.87 per 

month. The father contends the trial court erred in computing 

the child support because it (1) failed to give him credit for 

support he provided a third child, (2) failed to impute 

sufficient income to the mother, and (3) failed to use the 

shared custody guidelines when fixing child support. He also 
appeals the award of attorney's fees to the mother. Finding no 

error, we affirm. 

 The parties were married February 20, 1983 and had two 

children. They separated in May 1995, and the mother filed for 

divorce in May 1996. The husband fathered a third child 

out-of-wedlock in December 1996. At the time of the support 

hearing, the father lived with the mother of the third child and 

voluntarily paid her $2,000 per month support. 

 The father contends he should receive credit for the 

support paid his third child. The "actual monetary support a 

party pays for other children" is a factor the trial court must 

consider when computing child support. Code § 20-108.1(B); 

Farley v. Liskey, 12 Va. App. 1, 3-4, 401 S.E.2d 897, 898-99 

(1991). The record shows the trial court did consider that 

factor: "I will be revisiting the suggestion that there is 

another child that the Court should be taking into 

consideration. . . . I do find that an appropriate 

consideration, but I don't have a rote formula for doing so. It 

will depend on all the various circumstances that exist." 

Code § 20-108.1(B) does not require the trial court to give 

a credit or an offset equal to the support the husband paid for 

his third child; it only requires consideration of that fact. 

The trial court was considering that factor as it noted while 

fixing the support at $1,051.87, "father was voluntarily 

furnishing almost twice as much support for his third child and 

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the mother of that child than for the two children which are the 

subject of this proceeding." The trial court has broad 

discretion in awarding child support, and its awards will not be 

reversed on appeal unless plainly wrong or unsupported by the 

record. Auman v. Auman, 21 Va. App. 275, 277, 464 S.E.2d 154, 

155 (1995). The trial court did not err in its method of 

calculation, and it did not abuse its discretion as it 

considered the husband's support of his third child. 

The father contends the trial court imputed insufficient 

income to the wife. The trial court did impute $1,000 to the 

wife, but the husband argues the trial court should have imputed 

at least $2,000. The mother was a college graduate who became 

an insurance agent during the marriage. Her earnings were as 

high as $40,000 to $77,775. When she produced that, she 

generated significant premiums from her husband's company and 

the companies that dealt with it. That premium base evaporated 

with the divorce litigation. Her income as an insurance agent 

also decreased because of changes in the insurance industry that 

increased competition for business. 

By February 1999, the wife stopped selling insurance and 

sought other employment but was only working thirty hours per 

week. The husband's salary had remained at $65,000 for the last 

few years, but he eliminated his debt service expense by 

declaring personal bankruptcy. The mother had increased 

expenses due to her daughter's illness and the need to pay for 

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her own health insurance. The father's bankruptcy left her 

solely responsible for their joint obligations. 

The party seeking to impute income has the burden of proof. 

Brody v. Brody, 16 Va. App. 647, 651, 432 S.E.2d 20, 22 (1993). 

No evidence supported imputing $2,000 income to the wife. The 

husband offered no evidence about the employment opportunities 

available to the wife given her education and experience. The 

trial court imputed income of $1,000 per month but found "the 

evidence before me does not make a case for imputing income 

beyond" that amount. The trial court noted the wife's high 

income as an insurance agent "was artificial" and no evidence 

suggested that it could be duplicated. 

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.'" 

Blackburn v. Michael, 30 Va. App. 95, 102, 515 S.E.2d 780, 784 

(1999) (citation omitted). The record shows that it did this. 

The decision to impute income is within the sound discretion of 

the trial court, and its refusal to impute income will not be 

reversed unless plainly wrong or unsupported by the evidence. 

Code § 20-108.1(B)(3); Saleem v. Saleem, 26 Va. App. 384, 393, 

494 S.E.2d 883, 887 (1998); Stubblebine v. Stubblebine, 22 Va. 

App. 703, 707, 473 S.E.2d 72, 74 (1996) (en banc) (court's 

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decision is presumptively correct). Given the circumstances of 

this case, we find no error in the trial court's decision. 

Next, the father contends the trial court erred by using 

the sole custody guidelines rather than the shared custody 

guidelines. The father did not raise an objection before the 

trial court or except to the final order. During oral argument, 

the father conceded that he had not objected. Accordingly, we 

will not address this issue. Rule 5A:18; Lee v. Lee, 12 Va. 

App. 512, 515, 404 S.E.2d 736, 737 (1991) (en banc); Ohree v. 

Commonwealth, 26 Va. App. 299, 308-09, 494 S.E.2d 484, 488-89 

(1998). 

Finally, we consider whether the trial court erred in 

awarding the mother $2,500 in attorney's fees. The wife 

incurred legal fees of $13,140.88 in this case. The trial court 

awarded the wife legal fees of $2,500, less than twenty percent 

of her expense. The trial court has broad discretion so long as 

the attorney's fees award is reasonable under the circumstances. 

Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 

(1987); McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 

159, 162 (1985). Based on the circumstances and equities of 

this case, we cannot say the trial court abused its discretion 

in making this award. 

Accordingly, we affirm. 

 Affirmed.

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