COURT OF APPEALS OF VIRGINIA

Present: Judg es Coleman, Elder an d Senior Judge Cole Argued at Rich mond, Virginia

DIANA DAMS CHRODER MEMORANDUM OPINION * BY v. Record No. 0889-98-2 JUDGE SAM W. COLEMAN III APRIL 27, 1999 JOHN WALLACE PATTERSON

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Randall G. Jo hnson, Judge Robert W. Partin (R ichard L. Locke; Mezzullo & McCandlish, on brief), for appellant. Mary Burkey Owens (Cow an & Owen, on brief), for appellee.

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. John Wallace Patter son petitioned the tr ial court to reduce his spousal supp ort obligation to his former wife Diana Damschroder, based on a reduction in hi s earnings. After ore tenus hearings, the tr ial court determ ined that Patt erson lost his employment involuntar ily but was vo luntarily unde remployed. Accordingly, the trial court imputed in come to Patterson. Based on its findings, the trial court orde red a reductio n in spousal support from $5,000 to $2,000 per month. On appeal, Damschroder contends (1) that th e trial court erred in dete rmining that

Patterson’s un employment was involuntary, (2) that a finding ofinvoluntary un deremployment required the court to deny Patterson’s petition for reductio n in spousal support obligations, and (3) that the trial court er red by imputing an in come not supported by the evidence. Findin g no error, we affi rm the trial court. I. BACKGROUND On appeal, we view the evidence and all re asonable inferences in the light most favorable to the prevailing party. See Alphin v. Alphin , 15 Va. App. 395, 399, 424 S.E.2d 572, 57 4 (1992). At the time of the final divorce de cree, Patterson was an equity partner in a large Rich mond law firm earning $160,000 per year. The trial court aw arded spousal supp ort to Damschroder at $5,000 per month. Soon after the divo rce, the law firm’s executive committee info rmed Patterson of their in tention to terminate him based on his low produc tivity. In ac cordance with Patterson’s employment separation agreement, he continued to co llect his usual monthly pay fo r one year. The managing partne r of the law firm te stified that he had communicated concerns about productivi ty to Patterso n before they decided to terminate hi m. With the exceptio n of one or two years between 1989 and 1995, Patterson’s bill able hours were lower than what the firm considered normal for an equity partner. However, when asked, the managi ng partner could not st ate that he had ever explained to Patterson that the firm would en d his employ ment if he failed to increase his productivi ty. Additional ly, Patterson testified that the fi rm never advised him that he would face

- 2 -termination if he failed to in crease his billable hours. Patterson testif ied that the firm’s decisi on to end hi s employment shocked him. Shortly after th e firm notified Patterso n of his te rmination, Patterson soug ht legal employment with one of hi s larger clients based in Richmond. Al though the former clie nt never officially rejected Patterson, Pa tterson determin ed that he would likely receive no offer. He also sought legal employment through a Washington, D. C. outplacement firm. Pa tterson applie d for some twenty-eight to thirty positions and rece ived no offers. He testified that he was willing to go almost anywhe re and that he had actively pursued po sitions in California and Kazakhst an. In the Richmond area, Patt erson sought leads from his former clients, but received none. Patterson also co ntacted friends and classmates, but to no avail. Af ter being out of wo rk for nearly a year and having receiv ed no offers for lega l positions, Patterson explored other option s and chose to open a cigar fran chise in Savannah, Georgia. Several months late r, Patterson filed a petition seeking a termination or reductio n in his spousa l support obliga tion. After hearing evidence ore tenus , the trial judge determined that Patterson was not voluntarily un employed. Howe ver, the trial judge also determined th at Patterson fa iled to show that he fully exhausted potential employme nt opportunities in Richmond. The judge also determined that Patterson could ha ve found employment - 3 -with a Richmond firm earning at least half his prior sa lary and imputed that amount of income to Pa tterson. Acco rdingly, the trial judge reduce d the spousal supp ort payments to comport with the imputed income. II. ANALYSIS We will not disturb a trial court’s decision on ap peal unless plainly wrong or without evid ence to su pport it. See Jennings v. Jennings , 12 Va. App. 1187 , 1189, 409 S.E.2d 8, 10 (1991). Upon petition of eith er party, a trial co urt may alte r spousal support provided there has been a material change of ci rcumstance. See Code § 20-109. “The movi ng party in a petition for modification of support is required to pr ove both (1) a material change in circum stances and (2) that this change warrants a modification of support.” Reece v. Reece , 22 Va. App. 368, 373, 470 S.E.2d 148, 151 (1 996). Without question the termination of Patterson’s empl oyment constituted a material change in circumstances. The dispositiv e issue is whet her Patterson’s change in circum stance warranted a modifi cation of his support obligation. A. VOLUNTAR Y TERMINATION 1. LEGA L STANDARD In determining whet her an adverse change in circumstances warrants a diminution in a support obliga tion, the tr ial court must consider, amon g other things, wh ether the changed circumstances arose from the obligor’s vo luntary action s. Where

- 4 -the changed circum stances result fr om the obligor’s misconduct or neglect, the Supreme Co urt has held the chan ged circumst ances are the product of the obligo r’s voluntary actions. See Edwards v. Lowry , 232 Va. 110, 112-13, 348 S.E. 2d 259, 261 (1986) (citing

Hammers v. Hammers , 216 Va. 30, 31-3 2, 216 S.E.2d 20, 21 (1975); Crosby v. Crosby , 182 Va. 461, 466, 29 S.E.2d 241, 243 (1944)). For example, where an obligor’s income changed when his employer terminated him, the change in ci rcumstances di d not warrant modifying the supp ort obligation because the employer fired the obligor for theft. See Edwards , 232 Va. at 112-13 , 348 S.E.2d at 261. Damschroder co ntends that th e trial court mi sunderstood and misapplied the proper legal standard. Damsch roder argues that the trial judge focuse d solely on the element of misconduct to the exclusion of negligen t or voluntary acts . We agree with Damschroder that simply showing that an obligor’s loss of job did not result from mi sconduct is insufficient to warr ant a change in the obligor’s spou sal support obli gation. Howeve r, Damschroder mischaracterizes the trial judge’ s holding and rati onale for that holding. Having heard the ev idence, the trial judge conc luded that

Patterson’s term ination was not for misconduct and was not voluntary. The trial judge stat ed that the ev idence was in conflict as to whethe r Patterson negl ected the oppo rtunities he had to increase his pr oduction. The managi ng partner testified

- 5 -that Patterson “pro bably” could have increase d his billable hours. Alternatively, Patterso n testified that he had no co ntrol over his billable hours because th ey rose and fell with the fortun es of his clients. The tr ial judge noted th e absence of ev idence showing that Patterson neglec ted his client s and found th at, on the contrary, the evid ence showed that his clie nts were very satisfied with his work. Additi onally, there wa s evidence th at Patterson had never been a “rainmaker” fo r the firm, and there was no testimony that he refused or ignored oppo rtunities to solicit new clients. Thus , the trial cour t considered th e evidence and determined that the evidence showed that Patterson had not neglected his professional activities. In his letter opinion, alth ough the trial judge devoted considerable attention to the difficul t issue of whet her Patterson lost his job because of misconduct, he also considered whether Patterson lost his job due to neglect or othe r voluntary actions. Accordingly, we find that the trial co urt applied the correct standard in dete rmining whether Pa tterson’s loss of employment warranted a ch ange in spou sal support. 2. BURDEN OF PROOF Damschroder cont ends that the trial ju dge erroneou sly placed the burden on he r to prove that Patterso n lost his job due to misconduct. As support for her ar gument, Dams chroder states that Patterson fail ed to carry his burden of demons trating that his termination was in voluntary, and therefore, the trial judge must

- 6 -have reached his conclu sion based on an erro neous applic ation of the burden of proo f. We disagree. Absent specific evid ence to the co ntrary, we presume that the trial court base d its decision on the evidence presented and properly applie d the law. See Williams v. Williams , 14 Va. App. 217, 221, 415 S.E.2d 252, 254 (1992). The burden is on the moving party to esta blish that the change in circ umstances was no t voluntary. See Antonelli v. Antonelli , 242 Va. 152, 154, 409 S.E.2d 117, 119 (1991). The trial judge stat ed in his letter opinion th at he placed the burden of proof on Patterson, and we find that Patt erson produced sufficient evidence to support the tr ial judge’s conc lusion that he proved by a prepon derance of evidence th at his term ination was not volunt ary. We have previously referred to much of the evidence which Patterson pres ented to satisfy his burden of pr oof. Patterson testified that he never refused wo rk, that the firm never informed him that a failure to increase production would result in termination, that his billable hours were ou t of his control, that firm management had ul terior motives in term inating him, that he performed substantial admini strative and other functions for the firm, and that the firm ’s decision to term inate him ca me as a complete surprise. Although the managing pa rtner warned Patterson about his low pr oductivity at least twice and opined that Patterson “pro bably” could have increa sed his hours, Patterson

- 7 -produced sufficient evidence to es tablish that his loss of employment was not volu ntary or the result of wrongful conduct. B. IMPUTATION OF INCOME 1. Lega l Standard When a spousal support obligor suffers a reduction in income resulting from a voluntary employment decision, that reduction in income will not warrant a corresponding reduction in the support obligation. See Stubblebine v. Stubblebine , 22 Va. App. 703, 708, 473 S.E.2d 72, 74 (1996) ( en banc ). “Accordingly, a court may impute income to a party who is voluntarily unemployed or underemployed.” Id. (internal quotation marks omitted). The trial court determined that Patterson’s loss of employment was involuntary but that Patterson’s job search in Richmond was insufficient to avoid imputation of income. The trial court imputed income equal to half of Patterson’s prior salary. Based on the amount of imputed income, the trial judge calculated the amount to reduce Patterson’s support obligation. Damschroder argues that upon finding that Patterson was voluntarily underemployed it was error for the court not to dismiss Patterson’s request for a reduction in support. We disagree. In support of her argument, Damschroder cites Edwards , 232 Va. 110, 348 S.E.2d 259, Antonelli , 242 Va. 152, 409 S.E.2d 117, and Commonwealth, Dept. of Soc. Services ex rel. Ewing v. Ewing , 22 Va. App. 466, 470 S.E.2d 608 (1996). In each of the cited

- 8 -cases, obligor’s request for reduction in support obligations was denied. However, in each case, the entire loss of income resulted from the obligor’s voluntary actions. Here, the trial court found that Patterson was involuntarily unemployed but incurred approximately half the reduction in his income voluntarily. The underlying standard reflected in the three cited cases is that in order to warrant a reduction in his support obligation, Patterson “must show that his lack of ability to pay is not due to his own voluntary act or because of his neglect.” Hammers , 216 Va. at 31-32, 216 S.E.2d at 21; see Antonelli , 242 Va. at 154, 409 S.E.2d at 119; Edwards , 232 Va. at 112-13, 348 S.E.2d at 261; Ewing , 22 Va. App. at 470-71, 470 S.E.2d at 610-11. Applying this standard, the trial court reduced Patterson’s support obligation only to the extent that his reduction in income was voluntarily incurred. Accordingly, the trial court applied the proper legal standard. 2. Calculation of Imputed Income Based on the record, the trial court determined that it would be unrealistic to assume that Patterson could have moved to another firm and maintained the same level of pay he had previously enjoyed. However, the court determined that a Richmond law firm would have paid Patterson at least half of what he had earned in order to reap the benefits of his experience and his “very satisfied” clients. The record upon which the trial court based that determination included evidence

- 9 -of Patterson’s age, the nature of his legal expertise, and the type of clients that he had. Additionally, there was testimony that Patterson could have brought to another firm approximately $50,000 gross receivables, and testimony that the amount of gross receivables would depend on the particular year, for example, one client generated business that ranged from $5,000 to $100,000 depending on the year. Patterson, who prevailed in obtaining a support reduction, does not appeal the imputation of income to him of $62,064. However, Damschroder contends that the evidence does not support the trial court’s calculation of imputed income. We disagree. A spouse’s entitlement to an award and the amount of that award are matters committed to the sound discretion of the trial

court. See Stubblebine , 22 Va. App. at 707, 473 S.E.2d at 74. In modifying a spousal support order, Code § 20-109 instructs the trial court to consider the factors set forth in subsection (E) of Code § 20-107.1. These include earning capacity, education, skills, training, and age. See Code § 20-107.1. We find that there was sufficient evidence in the record for the trial court, by applying the factors of Code § 20-107.1 to impute $62,064 of income to Patterson. In sum, we find that the trial court properly determined that Patterson lost his job involuntarily and that the trial court had sufficient evidence to impute $62,064 of income to Patterson. Accordingly, we affirm the trial court’s decision

- 10 -reducing Patterson’s spousal support obligation from $5,000 to $2,000.

Affirmed.

- 11 -