Amanda Swanson Niblett v. Jason Daniel Niblett
65 Va. App. 616
| Va. Ct. App. | 2015Background
- Parties: Amanda Swanson Niblett (mother) v. Jason Daniel Niblett (father); parents of two children; divorce granted to mother based on father’s adultery with a minor and related criminal convictions.
- Father has been incarcerated since March 2014, serving a three-year sentence and is a registered sex offender.
- Prior earnings: father worked ~9.5 years as a commissioned car salesman; earned about $85,700 in 2013 and ~$54,500 (W-2) in 2014; employer paid $3,000/month base through Dec. 2014 after arrest.
- At the April 3, 2015 child support hearing the court found father was voluntarily unemployed due to his criminal conduct but refused to impute income, awarding the statutory minimum support instead.
- Mother appealed, arguing the court was required to consider father’s recent past earnings for imputation; father argued future post-release earnings were speculative and no income existed while incarcerated.
- The Court of Appeals reversed and remanded, holding the trial court erred by failing to consider recent past earnings when evaluating imputed income.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court must consider imputing income to an incarcerated parent found voluntarily unemployed | Mother: court must impute income based on father’s recent past earnings (what he was making before incarceration) | Father: imputing income would be speculative as future post-release earnings are uncertain; he has no current income | Court: trial court erred by failing to consider recent past earnings as basis for imputed income when voluntary unemployment is found; remand for consideration |
| Whether Donnell precludes imputing past earnings for a voluntarily unemployed/incarcerated parent | Mother: Donnell does not apply; court should rely on recent earnings like Stubblebine and other precedent | Father/trial court: Donnell bars imputing because it would require speculation about post-release earnings | Court: Donnell is distinguishable (retirement context); Stubblebine controls—imputing recent past earnings for voluntarily unemployed parent is permissible |
| Whether imputation requires deviation from presumptive guidelines | Mother: imputation is required to be considered but not necessarily to deviate | Father: even if imputed, deviation is speculative/unwarranted | Court: imputation must be considered but court may still choose whether to deviate after weighing statutory factors |
| Proper evidentiary basis for amount to impute | Mother: recent wage history is a reasonable, non-speculative estimate of earning capacity | Father: post-incarceration employability and stigma make past earnings unreliable | Court: recent past earnings are admissible and often most probative; imputed amount must be based on evidence, not speculation |
Key Cases Cited
- Donnell v. Donnell, 20 Va. App. 37 (Va. Ct. App.) (distinguishable retirement context where imputing pre-retirement income was speculative)
- Stubblebine v. Stubblebine, 22 Va. App. 703 (Va. Ct. App. en banc) (affirmed imputation based on recent past earnings for voluntarily unemployed parent)
- Mir v. Mir, 39 Va. App. 119 (Va. Ct. App.) (recent past earnings may be most reasonable estimate of earning capacity)
- Brooks v. Rogers, 18 Va. App. 585 (Va. Ct. App.) (imputation may be required and deviation requires written findings)
- Jacobs v. Jacobs, 219 Va. 993 (Va.) (awards cannot be premised on uncertain future circumstances)
- Layman v. Layman, 25 Va. App. 365 (Va. Ct. App.) (incarceration can constitute voluntary unemployment)