COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Senior Judge Cole 

Argued at Richmond, Virginia 

BERNARD H. LEIFFER 

 MEMORANDUM OPINION* BY 

v. Record No. 1035-96-2 JUDGE ROSEMARIE ANNUNZIATA 

 MARCH 18, 1997 

EMILY LEIFFER 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

James E. Kulp, Judge 

 Judson W. Collier, Jr. (Hooker, Bode, 

Collier, Dickinson & Gardner, on brief), for 

appellant. 

 Phoebe P. Hall (Franklin P. Hall; Hall & 

Hall, on brief), for appellee. 

 Husband, Bernard H. Leiffer, appeals the final order of the 

trial court establishing permanent spousal support payable to 

wife, Emily Leiffer. Husband contends that the court erred by 

(1) imputing income to him; and (2) ordering permanent support 

payable September 20, 1995 rather than May 1, 1995. We affirm. 

 I. 

 In April 1994, wife filed a bill of complaint, seeking a 

divorce from husband. In June 1994, the court ordered husband to 

pay temporary support in the amount of $4,893.38 per month. In 

May 1995, husband petitioned the court to reduce his temporary 

support obligation. Husband's petition was taken under 

advisement pending husband's compliance with the court's 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
- 2 - 

discovery orders. 

 At a subsequent hearing on the grounds of divorce and 

equitable distribution, held September 20, 1995, husband remained 

in default of the court's orders. At that time, the court 

awarded wife a divorce and proceeded with equitable distribution. 

 It took the issue of permanent spousal support under advisement, 

however, stating, "[t]he problem is, the Court is not confident 

of what [husband's] job is, what his present income is to try to 

make any decision on the issue of permanent spousal support." 

 A hearing was finally held on the issue of permanent spousal 

support in February 1996. Following the hearing, the court 

imputed income to husband and ordered him to pay $1,000 per month 

in permanent spousal support, commencing on March 1, 1996. In 

its order, the court made the following finding: 

 Upon the evidence heard, the Court finds that 

[husband] voluntarily left his employment at 

Sears and thereby knowingly and voluntarily 

decreased his earnings and that income should 

be imputed to him. The Court finds that 

[husband] has an earning capacity of $8,025 

per month, or $96,300 per year, and will 

impute to [him that amount] for spousal 

support purposes. The Court finds that 

[wife] earns approximately $36,500 per year. 

 The court further found husband in arrears for temporary 

support payments from March 1, 1995 to February 29, 1996. The 

court ordered husband to pay the full amount of temporary 

support, $4,893 per month, through September 20, 1995, and 

modified temporary support to $1,000 per month effective that 

date. 
- 3 - 

 II. 

 On appeal, we view the evidence and all reasonable 

inferences therefrom in the light most favorable to wife, the 

prevailing party below. Alphin v. Alphin, 15 Va. App. 395, 399, 

424 S.E.2d 572, 574 (1992). We presume that the trial court 

based its decision on the evidence presented and properly applied 

the law, Williams v. Williams, 14 Va. App. 217, 221, 415 S.E.2d 

252, 254 (1992), and we will not disturb the trial court's 

judgment unless it is plainly wrong or without evidence to 

support it. Jennings v. Jennings, 12 Va. App. 1187, 1189, 409 

S.E.2d 8, 10 (1991). 

 In determining an award of spousal support, a "court may 

impute income to a party who is voluntarily unemployed or 

underemployed." Calvert v. Calvert, 18 Va. App. 781, 784, 447 

S.E.2d 875, 876 (1994); Code § 20-107.1(1). 

 A reduction in income resulting from a 

voluntary employment decision does not 

require a corresponding reduction in the 

payor spouse's support obligations, even if 

the decision was reasonable and made in good 

faith. . . . The trial court, in determining 

whether to award support and the amount 

thereof, may consider earning capacity as 

well as actual earnings in fashioning the 

award so long as it applies "the 

circumstances in existence at the time of the 

award." 

Stubblebine v. Stubblebine, 22 Va. App. 703, 708, 473 S.E.2d 72, 

74 (1996) (en banc) (quoting Payne v. Payne, 5 Va. App. 359, 363, 

363 S.E.2d 428, 430 (1987)); see also Antonelli v. Antonelli, 242 

Va. 152, 156, 409 S.E.2d 117, 119-20 (1991) (risk of success in 
- 4 - 

pursuing employment change borne by obligor). 

 The position husband held at Sears, which paid him $8,025 

per month, was "eliminated" due to corporate "downsizing." Sears 

offered husband another position where he would continue to earn 

$8,025 for an undetermined period. Husband stated that he was 

overqualified for the new position, which would have required him 

to relocate to Minnesota and work primarily in North and South 

Dakota. Instead, husband opted for a severance package from 

Sears and left in March 1994. 

 Within two months husband moved to Nashville. He rejected 

an offer of employment from a firm in New York City which would 

have paid him $102,000 per year, and he remained unemployed until 

July 1994, when he began working for a small company in 

Nashville. Husband purchased a portion of the company to become 

a part-owner. At the time, the company had "significant 

outstanding receivables that were not being collected and revenue 

was off significantly." Husband and his business partners agreed 

not to be reimbursed for expenses they incurred on behalf of the 

business in order to keep the company "afloat." The company 

dissolved in March 1995. 

 The evidence in this case supports the trial court's 

imputation of income. Husband's unemployment and subsequent 

underemployment was voluntary and unreasonable. While under a 

court order to pay a certain sum for support, husband declined a 

transfer within Sears that would have paid him his then current 
- 5 - 

salary for an undetermined time, with no available option for 

continued employment. Although husband testified that he sent 

out "over a thousand resumes, [and] worked with executive search 

firms all over the country," the record contains no other 

evidence of such efforts to find employment. The trial court was 

entitled to infer that husband's decision to relocate to 

Nashville was not a legitimate career move. 

 Moreover, husband forwent a job paying nearly $100,000 per 

year for a risky venture in a small company soon to be bankrupt. 

 Regardless of the "reasonableness" of his decision, husband bore 

the risk of success, not wife. See Antonelli, 242 Va. at 156, 

409 S.E.2d at 119-20. 

 Husband also argues that the imputation of income violates 

the principle that support awards are to be based on present 

conditions, not future circumstances. He argues that by imputing 

income to him, the court has improperly considered an uncertain 

future event--the possibility that he will again reach the 

earning capacity he achieved at Sears. This argument is 

misplaced. In imputing income, the court considered an amount it 

considered husband was presently able to earn. 

 III. 

 Husband contends that the trial court erred in retroactively 

modifying his temporary support obligation. Code § 20-112 

provides: 

 No support order may be retroactively 

modified, but may be modified with respect to 

any period during which there is a pending 
- 6 - 

petition for modification, but only from the 

date that notice of such petition has been 

given to the responding party. 

Husband contends that Code § 20-112 required the court to modify 

the temporary support award effective May 1, 1995, the date he 

filed his petition to reduce temporary support. We disagree. 

The statute does not require a retroactive modification to take 

effect on that date. To the contrary, the statute plainly states 

that the order may be retroactively modified "with respect to any

period during which there is a pending petition." 

 Accordingly, the trial court's decision is affirmed. 

Affirmed.