Dawn Marie Johnson v,. Christopher Barnard Johnson

Jonathan C. Thacher

DENNIS J. SMITH CHIEF JUDGE
MARCUS 0. WILLIAMS
JANE MAHUM ROUSH
LESLIE M. ALDEN
JONATHAN C. THACHEFt
FLTERRENCE NEY
RANDY I. BELLOWS
CHARLES J. MAXF1ELD
BRUCE D, WHITE
ROBERT 1 SMriH
DAVID S. SCHELL
JAN L BRODIE
LORRAINE NORDLUNC
BRETT A KASSABIAN
MICHAEL F. DEVINE
JUDGES
BARNAflD r. JENNINGS
THOMAS J. MIDDLETDN
THOMAS A. FOHTKDRT
RICHARD J. JAMBORSKY
JACK B-STEVENS
J.HCWE SHOWN
F. BRUCE BACH
M. LANGHORNE KEITH
ARTHUR B. VIEREGG
KATHLEEN H. MACKAY
ROBERT W.WOOLDRIDGE. JR.
MICHAEL R MCWEENY
GAYLORD L FINCH JR.
STANLEY P. KLEIN
RETIRED JUDGES

February 7, 2011

Dear Counsel:

This case came before the Court on January 10, 2011, upon requests for Equitable Distribution, Spousal and Child Support, a Final Decree of Divorce, and attorney's fees. At the conclusion of evidence, the parties were to submit closing arguments in writing and the ruling was taken under advisement.

The Court has had the opportunity to review the pleadings, briefs, and testimony, and the rulings are as follows.

GROUNDS OF DIVORCE

In their pleadings, both parties sought entry of fault decrees based on desertion. Plaintiff, Ms. Johnson, withdrew her constructive desertion request during the hearing and asked to proceed based on one-year separation. Defendant, Mr. Johnson, opted to continue with his request for a fault decree based on desertion.

The evidence is insufficient to grant Mr. Johnson a divorce upon desertion. To establish desertion, Mr. Johnson presented testimony that Ms. Johnson willingly left the marital home with;the children after filing divorce, and that their relationship had previously deteriorated. A fault based divorce cannot be granted merely because a husband and wife are unable to live together in peace and harmony. See Coe v. Coe, 225 Va. 616, 619, 303 S.E.2d 923, 925 (1983). Moreover, Ms. Johnson filed for divorce prior to leaving the marital home. The absenting of one spouse from the marital home after the institution and during the pendency of a suit for divorce is generally not desertion. See Hudgins v. Hudgins 181 Va. 81, 87, 23 S.E.2d 774, 777 (1943).

less $3,000 per month he pays in spousal support, he has a monthly income for computing child support in the amount of $16,166. Using the income imputed to Ms. Johnson of $0 plus the $3,000 she is to receive in spousal support, she has a monthly income for computing child support in the amount of $3,000. The combined monthly income of the parties is $19,166, with Mr. Johnson having an income share of 84% and Ms. Johnson having an income share of 16%. The basic support figure for the four children taken from the chart in § 20-108.2 is $2,222 for the first $10,000 of combined monthly income and 7.8% of the remaining $9,166, for a total basic support figure of $2,936.95. This results in a shared support need of $4,111.73.

However, the Court did receive sufficient evidence, properly corroborated, to demonstrate that the parties had been separated for a period in excess of one year without reconciliation or cohabitation. Additional evidence necessary for the entry of a final decree was also provided. Therefore, the Court hereby authorizes the entry of a no-fault divorce upon Ms. Johnson's Complaint pursuant to Code § 20-91(A)(9), with a separation date of December 22, 2009.

EQUITABLE DISTRIBUTION

In matters of equitable distribution, a court must classify the property as separate or marital, assign a value to the property based on the evidence presented, and distribute the property to the parties considering the factors present in Virginia Code § 20-107.3(E). See Marion v. Marion, 11 Va. App. 659, 665, 401 S.E.2d 432, 436 (Va. Ct. App. 1991).

The pleadings, testimony, exhibits and arguments have been considered, and for the reasons specified below, the Court makes the following findings of fact and conclusions of law with regards to equitable distribution.

1. Classification and Value a. Real Property

After considering the evidence presented, the Court finds the following classification and value for the real property at dispute:

Asset

Title Holder

Classification

Current Value

Mr. Johnson, however, claims this case is analogous to (I.e. desert the marriage) without jeopardizing a claim for spousal support. The Court does not find applicable to this case. Mr. Johnson failed to present any credible evidence that Ms. Johnson's complaint was a sham. Moreover, Ms. Johnson presented credible testimony that Mr. Johnson withheld financial support to the extent she was unable to adequately feed and clothe herself. Ms. Johnson also presented evidence that Mr. Johnson was verbally abusive, and that threw her out of their home in the middle of the night. Accordingly, the Court finds that Ms. Johnson's complaint was supported by sufficient evidence and not frivolous, and thus her separation does not constitute desertion.

Marital Home - 3907

Pender Spring Dr.,

Fairfax, VA 22033

Joint

Marital

$845,000

Washington D.C.

Condo — 4724 Benning

RcL, SE #403

Washington DC

Mr. Johnson

As there was no evidence of any separate component - Marital

No evidence presented on the value of this asset

Delaware Beach House

- 37889 Bayview Circle

East, Selbyville, DE

Joint

As there was no evidence of any separate component - Marital

$365_;700

Marriott Mountainside

Part City Utah (Time

Share)

Ms. Johnson

As there was no evidence of any separate component — Marital

$30,000

St. Maarten Time

Share

Mr. Johnson

Separate because purchased by Mr.

Johnson prior to marriage

$9,000 b. Accounts and Securities

After considering the evidence presented, the Court finds the following classification and value for the accounts and securities at dispute:

Asset

Title Holder

Classification

Valuation

The Court finds that the current value of these assets is the proper valuation to use for equitable distribution.

ING Account #5540

Joint

Marital

$70,559

Bank .of America Account #0759

Mr. Johnson

Marital

$19,057

Bank of America Account #3674

Mr. Johnson

Marital

$5,010

Bank of America Account #6487

Joint

Marital

$1,052

Bank of America Account #0587

Mr. Johnson

Separate because opened by Mr. Johnson post-separation

$16,000

Bank of America UTMA Savings Account #6241

Joint

Marital

$668

Bank of America UTMA Savings Account #2953

Joint

Marital

Bank of America UTMA Savings Account #7563

Joint

Marital

$130

Bank of America UTMA Savings Account #9430

Joint

Marital

$105

Bank of America Account for Peartree Ventures

Joint

Marital

$3,578

ING College Plan (Alyse)

Mr. Johnson

Marital

$21,704

ING College Plan (Dean)

Mr. Johnson

Marital

$19,271

ING College Plan (Laci)

Mr. Johnson

Marital

$11,939

ING College Plan (Blake)

Mr. Johnson

Marital

$6,955

Nationwide Whole Life Policy for Mr. Johnson

Mr. Johnson

Marital

Insufficient evidence presented to value this asset

Nationwide Whole Life Policy for Ms. Johnson

Ms. Johnson

Marital

$3,681

CISCO Stock

Mr. Johnson

Marital

$439,618.13 c. Retirement Accounts

Prior to trial, Mr. Johnson moved the Court to value the banking accounts at the date of separation. Ms. Johnson has agreed that the date of separation is the proper valuation date for the bank accounts. Based in part upon this agreement, the Court finds that the best valuation date for the banking accounts is the date of separation. The court valued all other securities listed at their most recent value,

After considering the evidence presented, the Court finds the following classification and value for the retirement accounts at dispute:

Asset

Title Holder

Classification

Value on Date of Separation

During discovery, Mr. Johnson replied to an interrogatory request stating that he possessed CISCO stock with a value of $232,784 on the date of separation, and a value of $439,518.13 as of April 2010. At the Court's hearing Mr. Johnson testified that he misunderstood this discovery request, and the figures presented were based in part on stock options. Mr. Johnson further claimed that he did not know which portion of these figures was stock and which portion was options. Given these ambiguities, Mr. Johnson argues that the Court should not make any equitable award of this asset The Court finds Mr. Johnson's argument unpersuasive. Through his interrogatory response, Mr, Johnson admitted owning $439,618.13 of CISCO stock as of April 2010. The only evidence offered to rebut this admission is Mr. Johnson's unbelievable testimony that he misunderstood and accidentally included stock options in his calculation. The Court does not find Mr. Johnson's explanation credible, and Mr. Johnson provided no documentation to support his testimony. Mr. Johnson further claims that he received options and stock post separation, and thus a portion of the April 2010 value constitutes separate property. Although Mr. Johnson is entitled to treat any property received after separation as separate property, Mr. Johnson failed to present any evidence to differentiate what portion of the April 2010 value is a result of increases in the price of CISCO stock as opposed to newly issued stock. Accordingly, the Court finds that the entire April 2010 value admitted by Mr. Johnson is maritsi. Furthermore, even assuming the April 2010 value includes stock options, the Court can still award stock options through equitable distribution if the options are fully vested. No. 2675-96-2 (Va. Ct. App. July 8,1997) (unpublished). Here, the evidence indicates that Mr. Johnson's options are fully vested - Mr. Johnson testified to exercising part of his stock options in 2010 to pay attorney fees, and he asserted no claim that his stock options are not fully vested. Accordingly, the Court finds that any options Mr. Johnson may have included in his April 2010 valuation are subject to equitable distribution. Lastly, Mr. Johnson alleges that there was no evidence presented to value the options or the stock. The Court disagrees with Mr. Johnson's assessment of the evidence. Mr. Johnson's interrogatory response clearly assigns the stock and options a value of $439,618 as of April 2010. The Court further finds that the April 2010 value is the appropriate value to use for equitable distribution of this asset. 4

ING Retirement Account

Mr. Johnson

Separate

$37,226

Bank of New York Mellon IRA Plan

Ms. Johnson

Separate

$21,042

JP Morgan Chase Retirement Account

Marital

Marital

$250,899

It is the Court's opinion that the value on the date of separation is the proper valuation to use for equitable distribution of the retirement accounts. d. Debts

The Court finds that the current value of these debt accounts is the proper valuation to use for equitable distribution.

After considering the evidence presented, the Court finds the following classification and vahie for the debts at dispute:

Debt Account

Title Holder/Debtor

Classification

Current Debt

Although Ms. Johnson claims that the loans from her family members are marital debt, the Court is unsatisfied with her argument. The evidence indicates Ms. Johnson borrowed this money after separation for her personal use. Moreover, there is insufficient documentation to verify these loan amounts. Accordingly, the Court finds that these debts are separate obligations of Ms. Johnson.

Bank of America Account #6085

Ms. Johnson

Marital

$9,136

Bank of America Melaleuca

Ms. Johnson

Marital

$15,680.24

Loan from Ms. Johnson's Brother

Ms. Johnson

Separate

$54,500

Loan from Ms. Johnson's Mother

Ms. Johnson

Separate

$24,800

Loan from Ms.

Johnson's

Grandmother

Ms. Johnson

Separate

$32,000

The most recent account statement submitted, dated August 2009, indicates the mortgage has a balance of $405,242. The Court finds this is the most credible evidence regarding the current value of the mortgage, and the Court adopts this as the current debt obligation for determining equitable distribution.

Mortgage on the Marital Home

Mr. Johnson

Marital

$405,242

During Mr. Johnson's cross examination, there was discussion about various pieces of personal property located at the marital residence. Mr, Johnson testified that he never refused Ms, Johnson's request for personal belongings from the house. During this discussion, however, Mr. Johnson objected to Ms. Johnson taking the following items: (1) the piano; (2) the bowlfex; and (3} the flat-screen television in the basement. Mr. Johnson consented to Ms. Johnson taking the foflowing items: (1) scrapbook materials; (2) homeschooling materials; [3) exercise equipment; (4) the television from the beach house and the exercise room; (5} her desk with fifes and degrees; (6) her CDs; (7) pocketbooks; (8) her grandmother's fur coat; (9) kids bedroom dresser from the beach house; (10) toiletries; and (11) her personal books. Mr. Johnson further agreed to split the following items: (l)the family DVDs; (2) kids posters; and (3) the china. After considering the testimony regarding these items, the Court finds that Ms. Johnson is entitled to the scrapbook materials, the homeschooling materials, exercise equipment (except the bowflex), the televisions from the beach house and the exercise room, her desk with files and degrees, her CDs, her pocketbooks, her grandmother's fur coat, the bedroom dresser from the beach house, her toiletries, and her personal books. Furthermore, the Court finds it appropriate to allow Mr. Johnson to retain the piano, bowifex, and the flat-screen television in the basement. Lastly, the parties should split the DVDS, posters, and china. The parties should reach an agreement to divide the remaining personal property, .and the Court is confident the parties can reach an amicable resolution.

Mortgage on D.C. Property

Mr. Johnson

Marital

$131,250

Mortgage on Delaware Property

Mr. Johnson

Marital

$302,565 e. Tangible Personal Property

The parties presented very little evidence regarding personal property. In fact, the parties only presented evidence regarding their automobiles and certain personal effects. Accordingly, the Court will only address the personal property discussed, and the parties can independently divide the remaining personal property.

Mr. Johnson presented testimony that he experienced business-related losses totaling 2010 tax return. The only evidence offered was Mr. Johnson's testimony, which the Court finds unreliable.

Asset

Title Holder

Classification

Current Value

2004 Honda Odyessey

No evidence presented

Marital

No evidence presented

Toyota Tacoma

Traded in for new car, Mr. Johnson has title to the new car

Matital

$6,200

2. Consideration of the Factors of Va. Code § 20~107.3(E)

1. The contributions, monetary and nonmonetary, of each party to the well being of the family.

The parties married on September 14, 1996. The evidence is clear that during the early years of the marriage both parties worked and contributed significantly to the family finances.

The parties have four minor children, Alyse, Dean, Laci and Blake. Shortly before the birth of their first child, the parties agreed that Ms. Johnson would stay-at home and care for the children. Accordingly, Mr. Johnson became the primary breadwinner while Ms. Johnson became the primary caregiver.

The evidence is undisputed that Ms. Johnson provided significant nonmonetary contributions to the family, including all of the shopping, housework, cleaning and cooking. Ms. Johnson also homeschooled the children, and coached a youth soccer team. These are among the many nonmonetary contributions Ms. Johnson made throughout the marriage.

The evidence is also undisputed that Mr. Johnson financially supported the family throughout the last decade. Although Ms. Johnson worked various part-time jobs after the arrival of their children, these provided little financial sustenance. Moreover, the funds Ms. Johnson did accumulate went towards paying credit card debt she had unilaterally accumulated.

Overall, the parties enjoyed a lavish lifestyle during their marriage. They bought a large house in a prestigious neighborhood. They enjoyed expensive family vacations. At the same time, however, they were able to save and invest a sufficient sum of money.

2. The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties.

The parties acquired numerous pieces of property throughout the marriage. In 1999 they purchased the marital residence in Fairfax, and in the past decade they acquired two condos in Washington D.C. and Delaware. The evidence indicates that these properties were acquired with money from Mr. Johnson's employment and loans. Ms. Johnson testified that she often cleaned these properties, including the Delaware beach house, to save money. The parties also established retirement accounts throughout the marriage.

3. The duration of the marriage.

The parties were married on September 14, 1996. They separated in December 2009. The marriage lasted a Httle over thirteen years and produced four children. It was not a short marriage.

4. The ages and physical and mental condition of the parties.

Ms. Johnson is 44 years of age. Mr. Johnson is 46 years of age. Both parties testified to being in good physical and mental condition, and no credible evidence was offered to the contrary.

5. The circumstances and factors contributing to the dissolution of the marriage.

There is no evidence that any circumstance or factor that may have contributed to the dissolution of the marriage had any effect upon the marital property or an economic impact on the marriage. Fault is not a factor to be considered in equitable distribution unless it had an economic impact on the marriage. See Aster v. Gross, 7 Va. App. 1, 371 S.E.2d 833 (Va. Ct. App. 1988). Fault is not a "wdd card" to be used to punish a spouse at fault in equitable distribution. See O'Loughlin v. O'Loughlin, 20 Va. App. 522, 458 S.E.2d 323 (Va. Ct. App. 1995).

Mr. Johnson, however, claims that Ms. Johnson deserted the marriage and this resulted in extra costs such as attorney fees, child support, and a "myriad [of] other expenses." As noted above, the evidence is insufficient to grant Mr. Johnson a divorce upon desertion. Accordingly, the Court will not consider Mr. Johnson's argument that Ms. Johnson should be precluded from receiving any equitable distribution award due to her desertion.

6. How and when specific items of such marital property were acquired.

This has been discussed above.

7. Debts and liabilities of the parties.

The debts of the parties are described above.

8. Liquid or nonliquid character of the marital property.

The marital property has a combination of liquid and non-liquid assets.

9. Tax consequences.

No specific evidence of tax consequences was presented by either party, except as to the 2009 tax filing Mr. Johnson offered uncontested testimony that he lost $21,000 in tax returns because Ms. Johnson refused to file a joint tax return in 2009.

10. The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties.

There was no evidence of waste or dissipation of assets. 3. Division

Considering the foregoing factors, equitable distribution is to be as follows:

- Ms. Johnson is entitled half the value of the Fairfax home after satisfaction of the current mortgage on the property - this equates to $219,879. Mr. Johnson is entitled to the remaining half. Mr. Johnson has requested to retain the marital home if he can refinance within 90 days. The Court finds this request acceptable, and thus Mr. Johnson has 90 days from the date of this letter opinion to refinance the mortgage and pay Ms. Johnson her equitable share of $219,879. Should Mr. Johnson keep the property, he must remove Ms. Johnson's name from the mortgage. If Mr. Johnson is unable to refinance within 90 days, or chooses not to, the marital home shall be placed on the market for sale within 10 days. The parties shall split the mortgage payments and Mr. Johnson is responsible for the utilities pending the sale. Upon sale, each party is entitled to half the proceeds after satisfaction of the mortgage. Moreover, both parties shall cooperate in all steps required to refinance or sell the marital home. - The Washington D.C. condo shall be sold and the current mortgage paid from the proceeds. Although the parties did not produce evidence regarding a specific value for this property, both testified that it has little or no equity. Thus, the parties shall split any profit or loss from the sale after payment of the mortgage. During the pending sale, each party is responsible for half the current mortgage payments. - The Delaware Condo shall be sold, with each party receiving half the proceeds after satisfying the existing mortgage. During the pending sale, each party is responsible for half the current mortgage payments. - The St. Maarten Time Share is Mr. Johnson's separate property, and thus it is not subject to division.

The Marriott Mountainside Park City Utah time shall be sold, with each party receiving half the proceeds after satisfying any existing debt on the time share. - Bank of America UTMA Savings Accounts 6241, 7563, 2953, and 9430 are for the benefit of the children and they shall remain jointly titled. These monies are to be used only for the children. Neither part is to remove funds from these accounts without a written agreement or court order. - The ING College Plan accounts shall remain titled in Mr. Johnson's name to be used only for the children's education. Moreover, Mr. Johnson is to provide Ms. Johnson quarterly statements regarding these accounts. - Ms. Johnson is entitled to a monetary award of 50% of ING Account #5540 as of the date of separation, which equals $35,279. - Ms. Johnson is entitled to a monetary award of 50% of Bank of America Account #0759 as of the date of separation, which equals $9,528. - Ms. Johnson is entitled to a monetary award of 50% of Bank of America Account #3674 as of the date of separation, which equals $2,505. - Ms. Johnson is entitled to a monetary award of 50% of Bank of America Account #6487 as of the date of separation, which equals $526. - Each party shall retain their respective life insurance policy. - Mr. Johnson shall keep the Bank of America Account for Peartree Ventures, valued at $3,578. - Ms. Johnson is entitled to a monetary award of 50% of the CISCO stock and stock options, which equals $219,809. Mr. Johnson may satisfy this amount by transferring stock to Ms. Johnson with a current value of $219,809, or by a cash payment. - The Bank of New York Mellon account and the ING Retirement Account are both separate property, and thus not subject to division. - The JP Morgan Chase retirement account is entirely marital. Ms. Johnson is hereby awarded 50% of this account as of the date of separation. Ms. Johnson is responsible for preparing any qualified domestic relations order for this account.

- The loans Ms. Johnson borrowed from her family are all separate debt, and thus Mr. Johnson is not responsible for any portion of these obligations. - Mr. Johnson shall contribute 50% towards the Bank of America Debt Account #6085 and the Bank of America Melaleuca account, which equals $12,408. Mr. Johnson can contribute by paying half the minimum monthly payments, or by a monetary award. - Ms. Johnson shall keep the 2004 Honda Odyssey as her separate property, and Mr. Johnson shall keep the $6,200 trade in value of the marital Toyota Tacoma as separate property. - With respect to personal property, Ms. Johnson is entitled to the scrapbook materials, the homeschooling materials, exercise equipment (except the bowflex), the televisions from the beach house and the exercise room, her desk with files and degrees, her CDs, her pocketbooks, her grandmother's fur coat, the kids bedroom dresser from the beach house, her toiletries, and her personal books. Mr. Johnson shall keep the piano, bowfex, and the flat-screen television in the basement. The parties should split the DVDS, posters, and china. Because the parties failed to advance evidence regarding any other personal effects, the parties can independently divide the remaining personal property. - If legally possible, Mr. and Ms. Johnson shall submit an amended joint tax return for the 2009 year. Mr. Johnson shall reimburse Ms. Johnson for any reasonable accounting fees incurred by Ms. Johnson in examining the joint return. Furthermore, Mr. Johnson shall agree to hold Ms. Johnson harmless from any tax habihty on the return. If a joint tax return is filed, Mr. and Ms. Johnson shall equally split any refund.

SPOUSAL SUPPORT

When discrepancies exist as to the financial positions between divorcing spouses, the Court may award spousal support. See Westerberg v. Westerberg, 12 Va. App. 657, 660, 405 S.E.2d 638, 639 (Va. Ct. App. 1991). There is no presumption that either party is entitled to spousal support. Thomasson v. Thomasson, 225 Va. 394, 398, 302 S.E.2d 63, 65 (1983). Instead, Virginia courts take a two-step process in determining whether to award spousal support. First, the Court considers whether marital fault amounting to statutory grounds of divorce prohibits support. Id. at 398, 302 S.E.2d at 66. Next, the Court considers thirteen separate factors when deciding the nature, amount, and duration of any award of spousal support. Va. Code § 20-107.1(E).

As discussed above, there is no marital fault in this case amounting to statutory grounds for divorce. Accordingly, the Court makes the following findings of fact and conclusions of law with regards to the factors in Virginia Code § 20-107.1(E).

It is the legal and moral duty of a litigant to support their spouse consistent with their financial ability. In fixing the amount of alimony, there must be taken into consideration, along with the other factors contained in Code § 20-107.1, the financial ability of the spouse to pay.

In respect to alimony, the general rule is that the income of the spouse, however derived or derivable, is the fund from which the allowance is made. Taylor v. Taylor, 203 Va. 1, 3, 121 S.E.2d 753, 755 (1961). The ability of the spouse to pay is determined not necessarily by the amount of their actual earnings, but also by their ability to earn and what, under all the circumstances, will be a fair and just allotment. Id. Accordingly, the Court must determine each party's income before deciding an appropriate support award.

Mr. Johnson is currently employed as a systems manager at CISCO Systems. Mr. Johnson is well educated, having attained both a bachelor and masters degree. During trial, Mr. Johnson testified that his income is $230,000 per year or $19,166 per month. This testimony is consistent with the evidence presented by Ms. Johnson. Accordingly, the Court finds that Mr. Johnson's income is $230,000.00 per year or $19,166 per month. Based on this income, it is indisputable that Mr. Johnson has the ability to pay spousal support.

Ms. Johnson is currently unemployed and has been out of the job market for the past 10 years; thus, her current income is $0. Prior to leaving the job market, Ms. Johnson was a financial analyst for several large companies. Ms. Johnson is well educated, having attained an MBA from Northeastern University. Ms. Johnson also testified about her desire to obtain a bachelor's degree in nursing and eventually become employed on the administrative side of nursing. The evidence indicates that a career switch into nursing would take Ms. Johnson several years.

Mr. Johnson is requesting that the Court impute income to Ms. Johnson before deciding on any spousal support award. A court may under appropriate circumstances impute income to a party seeking spousal support. Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990). Generally, "one who seeks spousal support is obligated to earn as much as he or she reasonably can to reduce the amount of the support need." Srinivasan, 10 Va. App. at 734, 396 S.E.2d at 679.

The burden is on the party seeking the imputation to prove that the other parent is voluntarily foregoing gainful employment. Joynes v. Payne, 36 Va. App. 401, 421, 551 S.E.2d 10, 19-20 (2001). The party seeking the imputation is required to present evidence "sufficient to enable the trial judge reasonably to project what amount [of income] could be anticipated." Id. at 421, 551 S.E.2d at 20. Thus, Mr. Johnson, as the party seeking the imputation, had the burden to prove that work is available to Ms. Johnson, as well as the amount of income she could reasonably earn.

Mr. Johnson has failed to meet this burden. First, Mr. Johnson failed to present sufficient evidence regarding Ms. Johnson's earning potential. Mr. Johnson presented only one witness, Ms. Koslow, to testify about Ms. Johnson's job prospects. Ms. Koslow testified that anyone out of the job market for 10 years, as Ms. Johnson, could find employment within three to six months. Even if this statement is true, there was no credible evidence presented about what kind of job Ms. Johnson could expect or what it would pay. Furthermore, there was no evidence of recent past earnings upon which to impute income to Ms. Johnson. Mr. Johnson also failed to present sufficient evidence that Ms. Johnson is voluntarily unemployed. Ms. Johnson presented credible testimony that she has unsuccessfully applied for numerous positions. Ms. Koslow offered nothing to rebut testimony. In fact, Ms. Koslow testified that she was unaware of the amount of time Ms. Johnson has spent searching for a job.

Based on the evidence presented, the Court is unable to reasonably project what amount of income could be anticipated, or determine that Ms. Johnson is voluntarily unemployed; thus, Court will not impute income to Ms. Johnson at this time.

Applying all of the factors, including those covered in the prior analysis, the standard of Hving established during the marriage, the earning capacity of the parties, Ms. Johnson's reasonable expenses as established by her expense sheet, and the nature of the distribution under §20-107.3, Mr. Johnson shall pay Ms. Johnson the sum of $3,000 per month as spousal support for a period of 12 years to commence on March 1, 2011. Ms. Johnson shall be responsible for maintaining her own health insurance. CHILD SUPPORT

Based on the Child Custody Order, Mr. Johnson has the children for approximately 120 days per year and Ms. Johnson has the children for approximately 245 days per year. Rounded off, Mr. Johnson has a custody share of 33% and Ms. Johnson has a custody share of 67%. Accordingly, the shared custody support guidelines apply. Using the formula contained in Virginia Code § 20-108.2, the presumptive amount of child support to be paid by each party is as follows.

Using Mr. Johnson's gross monthly income of $19,166

Based on the formula in Code § 20-108.2(G)(3), Mr. Johnson has the following support obligation: the shared support need ($4,111.73) multiplied by Ms. Johnson's custody share (67%), plus Ms. Johnson's health insurance and work related child care costs ($0), multiplied by Mr. Johnson's income share (84%), which equals $2,313.67. Ms. Johnson has the following support obligation: the shared support needed ($4,111.73) multiplied by Mr. Johnson's custody share (33%), plus Mr. Johnson's health insurance and work related child care costs ($189), multiplied by Ms. Johnson's income share (16%), which equals $247.34. This results in a shared custody support amount of $2,066.33, which must be paid by Mr. Johnson.

The Court finds no reason to deviate from the child support guidehnes. Accordingly, Mr. Johnson owes a support amount of $2,066.33 per month.

Additionally, Mr. Johnson shall pay 84% of the unreimbursed medical costs not paid by the insurance carrier for each child after Ms. Johnson pays the first $250.00 annually. Ms. Johnson will be responsible for the remaining 16% of the children's unreimbursed medical costs. ATTORNEY FEES

Both parties submitted evidence regarding attorney fees in this case, and both have requested the Court to apportion attorney fees.

In divorce cases, courts may award attorney fees and costs to either party "as equity and justice may require." Va. Code § 20-99(5). After considering the evidence, the Court finds it appropriate to award Ms. Johnson attorney fees. First, there is a complete disparity of income in this case that warrants apportioning attorney fees. Moreover, the Court finds it equitable to award Ms. Johnson fees because she has incurred significant debt to pay her attorney while Mr. Johnson has no debt related to bis attorney fees. Accordingly, the Court finds Ms. Johnson is entitled to $57,000 in attorney fees from Mr. Johnson. CONCLUSION

Counsel for Ms. Johnson should prepare an appropriate final decree, incorporating this letter opinion by reference, and present it for entry after first obtaining endorsement of counsel.

Sincerely, Judge
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