Randy D. Johnson v. Cindy Lolita Johnson
0323161
Va. Ct. App. UAug 16, 2016Background
- Parties married in 1992, separated in 2006; two children, the older is severely autistic and cared for by the wife.
- Husband retired from the U.S. Navy in January 2014; pre-retirement income ~$8,900/month; post-retirement reported gross income $5,692/month from retirement, disability, and part-time work.
- Husband filed for divorce; trial occurred July 30, 2015; court issued a letter opinion dividing retirement, ordering sale of the marital home, imputing income to husband, awarding spousal support of $2,400/month, and setting child support using the imputed income.
- Final decree (Jan 27, 2016) incorporated those rulings; both parties signed the decree as "We ask for this."
- Husband appealed, challenging: (1) imputation of income to him, (2) failure to impute income to wife, and (3) failure to require wife to pay mortgage pending sale. Wife sought appellate attorney’s fees.
Issues
| Issue | Johnson (Husband) Argument | Johnson (Wife) Argument | Held |
|---|---|---|---|
| Whether the circuit court erred by imputing income to husband | Court wrongly imputed income; husband was not voluntarily underemployed post-retirement | Court properly evaluated efforts and imputed income | Not considered on appeal—issue waived for failure to object and because parties approved decree |
| Whether the court should have imputed income to wife | Wife is capable of working; child eligible for Medicaid; family can assist — so impute income | Wife forewent career to care for autistic child; no evidence of earning capacity presented | Affirmed: trial court did not err in refusing to impute income due to lack of evidence of earning capacity |
| Whether wife should be ordered to pay all/part of mortgage on marital residence pending sale | Wife should contribute since she can work; husband cannot afford mortgage with obligations | No ruling in letter opinion or final decree assigning mortgage responsibility | No ruling to review on appeal; court did not address this claim |
| Whether appellate attorney’s fees should be awarded to wife | N/A (wife requested fees) | N/A | Remanded to circuit court to determine reasonable appellate attorney’s fees and costs for wife |
Key Cases Cited
- Congdon v. Congdon, 40 Va. App. 255 (review standard: view evidence favorable to prevailing party)
- Murphy v. Murphy, 65 Va. App. 581 (trial court’s decision on imputing income reviewed for being plainly wrong or unsupported)
- Bennett v. Va. Dep’t of Soc. Servs., Div. of Child Support Enforcement ex rel. Bennett, 22 Va. App. 684 (burden on party seeking to impute income)
- deCamp v. deCamp, 64 Va. App. 137 (imputing income; burden to show voluntary underemployment)
- Blackburn v. Michael, 30 Va. App. 95 (same: burden to prove voluntary unemployment/underemployment)
- Lee v. Lee, 12 Va. App. 512 (purpose of preserving objections for appeal)
- Ohree v. Commonwealth, 26 Va. App. 299 (appellate courts will not consider issues not presented to the trial court)
- Fisher v. Commonwealth, 16 Va. App. 447 (no ruling in trial court means nothing to review on appeal)
- O’Loughlin v. O’Loughlin, 23 Va. App. 690 (award of appellate attorney’s fees to prevailing spouse)