A Carluzzo Rochkind & Smith note: Following is an article by Virginia Lawyers Weekly. We did not handle this case, but it brings up important marital points your divorce lawyer should be familiar with. For more than 30 years our divorce lawyers in Manassas have helped clients with such matters in Prince William County, Fairfax County, Woodbridge, and throughout Northern Virginia. If you have any questions or would like to schedule an appointment, please contact our law firm at (703) 361-0776.
Domestic Relations: Circuit court’s income determination affirmed
By Virginia Lawyers Weekly – 6/3/2024
Where the circuit court did not impute additional income to father because he was underemployed, but instead made a factual determination of income, it was not required to include written findings justifying an imputation under Code § 20-108.1(B).
Background
Hisham El-Hamayel appeals an order of the circuit court amending his child support obligation to Michelle El-Hamayel and awarding her attorney’s fees. He contends that the circuit court erred in determining his income, imputing additional income to him, calculating child support based on his actual income, failing to explain why it deviated from the presumptive child support guidelines and awarding mother attorney’s fees.
Analysis
Father contends that the circuit court erred by imputing additional income to him for the purpose of calculating child support. Father also argues that the circuit court erred by failing to calculate the amount of presumptive child support based on his income as evidenced by his testimony and tax returns, and further erred by failing to explain in writing its justifications for deviating from the child support guidelines under Code § 20-108.1(B).
Although father emphasizes that the circuit court stated in its ruling that it would “impute” income to him for 2020, 2021 and 2022, the context of the circuit court’s ruling demonstrates that it did not impute additional income to father because he was underemployed. Rather, the circuit court simply made a factual determination regarding father’s actual income based on the evidence presented by the parties.
Indeed, after noting that it had “absolutely no confidence in the accuracy and reliability of” father’s tax returns, the circuit court explained that it was “compelled to rely on the bank statements of [f]ather’s personal and business accounts to determine his income.” In addition to having no confidence in the accuracy of father’s tax returns, the circuit court explained how easy it is to manipulate tax returns and that the documents don’t “jive” with the income and expenses of the father.
Furthermore, the circuit court’s ruling does not reflect that it found father to be voluntarily underemployed as he suggests, but rather that father had “gross[ly] commingl[ed] [his] accounts … to hide assets and deflect what [his] proper income level is for purposes of child support computations.” Moreover, the circuit court’s final order states that it calculated father’s child support obligation based on “presumptive guideline child support.”
Because the limited record before this court shows that the circuit court did not impute additional income to father because he was underemployed, but instead was simply making a factual determination of income, it was not required to include written findings justifying an imputation under Code § 20-108.1(B). Moreover, given that the circuit court did not impute additional income to father for the reason set forth in the statute, the court does not address his argument that the evidence did not support the circuit court’s imputation of additional income to him.
Father contends that the circuit court’s findings regarding the amounts of his actual income and reasonable business expenses were contrary to the evidence, and he relies on his testimony to support his arguments. Without a transcript of the full hearing, however, this court cannot determine what evidence the parties presented at the hearing or whether the circuit court’s findings were contrary to the evidence as father claims on appeal. Accordingly, those assignments of error are waived.
Father finally asserts that the circuit court abused its discretion because it did not allow him to argue in opposition to mother’s request for attorney’s fees at the conclusion of the hearing. He further contends that the circuit court abused its discretion because it “used the [attorney’s] fee award punitively.” However, without a transcript, this court cannot determine whether the circuit court designed its award of attorney fees to punish father, precluded him from arguing or otherwise abused its discretion as father claims on appeal. Consequently, father’s remaining assignment of error is waived.
Affirmed.
El-Hamayel v. El-Hamayel, Record No. 1074-23-4, May 14, 2024. CAV (unpublished opinion) (White). From the Circuit Court of Prince William County (Coleman). Kate E. Beurmann-O’Neill (Family Law Group, P.C., on brief), for appellant. No brief or argument for appellee. VLW 024-7-148. 10 pp.
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