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Collins v. Leeds

Court of Appeals of Virginia

May 29, 2018


          FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Richard E. Gardiner, Judge

          Jeremiah A. Denton III (Jeremiah A. Denton IV; Jeremiah A. Denton, III, P.C., on briefs), for appellant.

          Cassandra M. Chin (Nichols Zauzig Sandler, P.C., on brief), for appellee.

          Present: Judges Beales, Chafin and O'Brien Argued at Fredericksburg, Virginia



         Martha Anne Collins ("wife") appeals the decision of the Circuit Court of Fairfax County awarding her $400 per month in spousal support from her former husband, Robert George Leeds ("husband"), pursuant to her reservation of right in the divorce decree to petition for additional spousal support.[1] On appeal, wife argues that the "trial court abused its discretion in failing to impute income to former husband because of a failure to recognize income earned by him after retiring from a 28 year military career as post-retirement income evidencing present earning capacity." Wife also contends that the "trial court abused its discretion in failing to consider legal expenses incurred by wife in unrelated malpractice cases evidencing support needed to meet her financial needs and maintain accustomed standard of living."

          I. Background

         Husband and wife were married on February 16, 1980 and separated on February 15, 2005. On September 5, 2008, husband and wife entered into a property and support settlement agreement ("Agreement"), providing that husband pay wife $3, 000 per month in spousal support for 15 months or until wife received her first paycheck after being re-qualified by United Airlines to resume her employment as a pilot. The Agreement permitted wife to petition for an additional amount of spousal support if a substantial change in circumstances occurred within twelve and one-half years of November 1, 2009. On September 15, 2008, the Circuit Court of Fairfax County entered a final divorce decree that incorporated the parties' Agreement.

         On April 9, 2010, after the initial period of spousal support expired, the court entered an agreed order requiring husband to continue paying $3, 000 in spousal support until the death of either party, wife's remarriage or cohabitation with another person, or a further order of the court. On December 14, 2010, the court entered another consent order requiring husband to make only three additional monthly spousal support payments of $3, 000 each. The agreed order also granted each party the right to file for a modification of the spousal support obligation thereafter.

         In October 2014, wife filed a petition for an increase in spousal support, alleging that, at the time they signed the Agreement, husband had understated his income, that wife's prior medical injuries had worsened, making it unlikely that she would ever be able to return to her career as a pilot for United Airlines, and that wife's living expenses had increased. Although wife filed her petition for additional spousal support in October 2014, evidentiary hearings were not conducted on the petition until June 21, 2017 and August 17, 2017.

          A. Facts Pertaining to Husband's Income-Earning Capacity

         The evidence relevant to husband's employment and income was presented on August 17, 2017. The evidence showed husband had retired from active duty service in the Navy in December 2004, after a lengthy military career, and began receiving military retirement benefits in January 2005. After retiring, husband became employed by Accenture, where he made approximately $147, 000 per year in gross income, as well as various bonuses. He left Accenture in 2009 when his position with the company was eliminated. Husband was then hired by the Navy as a civilian, where he made approximately $145, 000. Husband left that position in 2013 and voluntarily retired at age fifty-eight. On the day of the August 2017 hearing, husband was sixty-two years old, and he testified that his security clearances, which he held while working at Accenture and as a civilian for the Navy, had expired.

         At that hearing, husband testified that he had not sought new employment since leaving his civilian position with the Navy. He also testified that he volunteers as a docent at the National Air and Space Museum and as an associate scout for the Pittsburgh Pirates baseball team.

         Wife's trial counsel argued that the trial court should impute $145, 000 in income to husband based on the fact that he had voluntarily retired, that he was actively volunteering, and that he was making $145, 000 in gross income before retiring from his final position with the Navy. The trial court declined to impute income to husband, finding that there was "no evidentiary basis upon which to impute income to the Husband." The trial court's final order further explained this finding, stating:

In the case at bar, the only evidence offered of the Husband's earning capacity was his salary as of 2013 when he voluntarily left his civilian employment with the Navy (after having retired from active duty in the Navy in 2004); there was no evidence of the Husband's post-retirement earning capacity upon which to base an imputed income.

         B. Facts Pertaining to ...

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