COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

DIANA DAMSCHRODER 

 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. Johnson, Judge 

Robert W. Partin (Richard L. Locke; 

Mezzullo & McCandlish, on brief), for 

appellant. 

Mary Burkey Owens (Cowan & 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 Patterson petitioned the trial court to reduce 

his spousal support obligation to his former wife Diana 

Damschroder, based on a reduction in his earnings. After ore

tenus hearings, the trial court determined that Patterson lost his 

employment involuntarily but was voluntarily underemployed. 

Accordingly, the trial court imputed income to Patterson. Based 

on its findings, the trial court ordered a reduction in spousal 

support from $5,000 to $2,000 per month. On appeal, Damschroder 

contends (1) that the trial court erred in determining that 

Patterson’s unemployment was involuntary, (2) that a finding of 
involuntary underemployment required the court to deny Patterson’s 

petition for reduction in spousal support obligations, and (3) 

that the trial court erred by imputing an income not supported by 

the evidence. Finding no error, we affirm the trial court. 

I. BACKGROUND

 On appeal, we view the evidence and all reasonable inferences 

in the light most favorable to the prevailing party. See Alphin 

v. Alphin, 15 Va. App. 395, 399, 424 S.E.2d 572, 574 (1992). At 

the time of the final divorce decree, Patterson was an equity 

partner in a large Richmond law firm earning $160,000 per year. 

The trial court awarded spousal support to Damschroder at $5,000 

per month. Soon after the divorce, the law firm’s executive 

committee informed Patterson of their intention to terminate him 

based on his low productivity. In accordance with Patterson’s 

employment separation agreement, he continued to collect his usual 

monthly pay for one year. 

 The managing partner of the law firm testified that he had 

communicated concerns about productivity to Patterson before they 

decided to terminate him. With the exception of one or two years 

between 1989 and 1995, Patterson’s billable hours were lower than 

what the firm considered normal for an equity partner. However, 

when asked, the managing partner could not state that he had ever 

explained to Patterson that the firm would end his employment if 

he failed to increase his productivity. Additionally, Patterson 

testified that the firm never advised him that he would face 

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termination if he failed to increase his billable hours. 

Patterson testified that the firm’s decision to end his employment 

shocked him. 

 Shortly after the firm notified Patterson of his termination, 

Patterson sought legal employment with one of his larger clients 

based in Richmond. Although the former client never officially 

rejected Patterson, Patterson determined that he would likely 

receive no offer. He also sought legal employment through a 

Washington, D.C. outplacement firm. Patterson applied for some 

twenty-eight to thirty positions and received no offers. He 

testified that he was willing to go almost anywhere and that he 

had actively pursued positions in California and Kazakhstan. In 

the Richmond area, Patterson sought leads from his former clients, 

but received none. Patterson also contacted friends and 

classmates, but to no avail. After being out of work for nearly a 

year and having received no offers for legal positions, Patterson 

explored other options and chose to open a cigar franchise in 

Savannah, Georgia. 

 Several months later, Patterson filed a petition seeking a 

termination or reduction in his spousal support obligation. After 

hearing evidence ore tenus, the trial judge determined that 

Patterson was not voluntarily unemployed. However, the trial 

judge also determined that Patterson failed to show that he fully 

exhausted potential employment opportunities in Richmond. The 

judge also determined that Patterson could have found employment 

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with a Richmond firm earning at least half his prior salary and 

imputed that amount of income to Patterson. Accordingly, the 

trial judge reduced the spousal support payments to comport with 

the imputed income. 

II. ANALYSIS

 We will not disturb a trial court’s decision on appeal unless 

plainly wrong or without evidence to support it. See Jennings v. 

Jennings, 12 Va. App. 1187, 1189, 409 S.E.2d 8, 10 (1991). 

Upon petition of either party, a trial court may alter spousal 

support provided there has been a material change of circumstance. 

See Code § 20-109. “The moving party in a petition for 

modification of support is required to prove both (1) a material 

change in circumstances and (2) that this change warrants a 

modification of support.” Reece v. Reece, 22 Va. App. 368, 373, 

470 S.E.2d 148, 151 (1996). Without question the termination of 

Patterson’s employment constituted a material change in 

circumstances. The dispositive issue is whether Patterson’s 

change in circumstance warranted a modification of his support 

obligation. 

A. VOLUNTARY TERMINATION

1. LEGAL STANDARD

 In determining whether an adverse change in circumstances 

warrants a diminution in a support obligation, the trial court 

must consider, among other things, whether the changed 

circumstances arose from the obligor’s voluntary actions. Where 

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the changed circumstances result from the obligor’s misconduct or 

neglect, the Supreme Court has held the changed circumstances are 

the product of the obligor’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, 31-32, 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 circumstances did not warrant 

modifying the support obligation because the employer fired the 

obligor for theft. See Edwards, 232 Va. at 112-13, 348 S.E.2d at 

261. 

 Damschroder contends that the trial court misunderstood and 

misapplied the proper legal standard. Damschroder argues that the 

trial judge focused solely on the element of misconduct to the 

exclusion of negligent or voluntary acts. We agree with 

Damschroder that simply showing that an obligor’s loss of job did 

not result from misconduct is insufficient to warrant a change in 

the obligor’s spousal support obligation. However, Damschroder 

mischaracterizes the trial judge’s holding and rationale for that 

holding. 

 Having heard the evidence, the trial judge concluded that 

Patterson’s termination was not for misconduct and was not 

voluntary. The trial judge stated that the evidence was in 

conflict as to whether Patterson neglected the opportunities he 

had to increase his production. The managing partner testified 

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that Patterson “probably” could have increased his billable hours. 

Alternatively, Patterson testified that he had no control over his 

billable hours because they rose and fell with the fortunes of his 

clients. The trial judge noted the absence of evidence showing 

that Patterson neglected his clients and found that, on the 

contrary, the evidence showed that his clients were very satisfied 

with his work. Additionally, there was evidence that Patterson 

had never been a “rainmaker” for the firm, and there was no 

testimony that he refused or ignored opportunities to solicit new 

clients. Thus, the trial court considered the evidence and 

determined that the evidence showed that Patterson had not 

neglected his professional activities. 

 In his letter opinion, although the trial judge devoted 

considerable attention to the difficult issue of whether Patterson 

lost his job because of misconduct, he also considered whether 

Patterson lost his job due to neglect or other voluntary actions. 

Accordingly, we find that the trial court applied the correct 

standard in determining whether Patterson’s loss of employment 

warranted a change in spousal support. 

2. BURDEN OF PROOF

 Damschroder contends that the trial judge erroneously placed 

the burden on her to prove that Patterson lost his job due to 

misconduct. As support for her argument, Damschroder states that 

Patterson failed to carry his burden of demonstrating that his 

termination was involuntary, and therefore, the trial judge must 

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have reached his conclusion based on an erroneous application of 

the burden of proof. We disagree. 

 Absent specific evidence to the contrary, we presume that the 

trial court based its decision on the evidence presented and 

properly applied 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 establish that the 

change in circumstances was not voluntary. See Antonelli v. 

Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119 (1991). The 

trial judge stated in his letter opinion that he placed the burden 

of proof on Patterson, and we find that Patterson produced 

sufficient evidence to support the trial judge’s conclusion that 

he proved by a preponderance of evidence that his termination was 

not voluntary. 

 We have previously referred to much of the evidence which 

Patterson presented to satisfy his burden of proof. Patterson 

testified that he never refused work, that the firm never informed 

him that a failure to increase production would result in 

termination, that his billable hours were out of his control, that 

firm management had ulterior motives in terminating him, that he 

performed substantial administrative and other functions for the 

firm, and that the firm’s decision to terminate him came as a 

complete surprise. Although the managing partner warned Patterson 

about his low productivity at least twice and opined that 

Patterson “probably” could have increased his hours, Patterson 

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produced sufficient evidence to establish that his loss of 

employment was not voluntary or the result of wrongful conduct. 

B. IMPUTATION OF INCOME

1. Legal 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 

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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 

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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 

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reducing Patterson’s spousal support obligation from $5,000 to 

$2,000. 

Affirmed.

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