Barrett v. Commonwealth (Record Nos. 1381-10-3 and 1382-10-3, Va. App., July 26, 2011), is a jewel among unreported Virginia family law cases.  It touches upon a surprising number of legal concepts, considering how woefully unsuccessful the dad was in his child support appeal.

Key Issues:

1.            If a dad wants the court to impute income to mom, it is a two-step process.  First, dad must establish that he is not currently, voluntarily underemployed.  Second, the burden of proof is on dad to show that mom is voluntarily underemployed.

2.            Voluntary unemployment or underemployment needs to be re-proven in each modification proceeding, based on facts as they exist on the day of the hearing.  This is a refinement of the general rule that support modification proceedings begin with the incomes established in the last agreement or court order.

3.            A disbarred attorney may be considered voluntarily underemployed if he earns less than a lawyer’s income.

4.            Dicta is unavailing in support of an appellate argument.

5.            The law of the case doctrine is defined.

6.            Reasonable business expenses are disallowed on a rental property that is not rented.

7.            Gifts are income:  The trial court discounted a cash recipient’s intent to pay money back that she received from her parents. Mom’s oral testimony about her intent to reimburse was insufficient to establish a loan, when the donor testified their intent was to make a gift.  This is what often happens when a loan is not documented in writing.

            After deciding the money was a gift, the trial court erred in failing to include it in mom’s income for purposes of child support.  (There is no discussion of amortizing a one-time gift over twelve months or some other time period.)

8.            Stepchildren are irrelevant for purposes of calculating child support.

9.            Parties risk an attorney fee award in a child support appeal when they waste the other’s litigant’s time and money.  Here, a pro se dad is ordered to reimburse mom’s reasonable attorney fees on appeal because he prevailed on only one assignment of error out of 27.

           From an economic perspective, the dad’s cost of appeal included the hourly value of his own time multiplied by his hours devoted to the appeal, plus the mom’s counsel fees that he had to reimburse.

            Illustrating the adage “penny wise and pound foolish,” unless dad’s time had no economic value and mom’s attorney billed below-market, it cost dad more to represent himself than he would have spent hiring counsel!  Furthermore, if dad had benefitted from competent representation he likely would not have seen 26 of his 27 arguments tossed aside or had to pay mom’s attorney to refute them!

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           The concurring and dissenting
opinion is a persuasive restatement of the rule that with any given set of facts you only get to appeal one time.