Zubair A. Saleem v. Afshan Ghias Saleem, a/k/a et a

Citations: 26 Va. App. 384; 494 S.E.2d 883; 1998 Va. App. LEXIS 26Docket: 0443974

Court: Court of Appeals of Virginia; January 20, 1998; Virginia; State Appellate Court

Original Court Document: View Document

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Zubair Ahmad Saleem and Afshan Ghias Saleem (also known as Afshan Noreen Qureshi) are involved in appeals concerning a child support modification decree from the Circuit Court of Fairfax County. Zubair Saleem argues that the trial court incorrectly applied New York support law to his obligation for their daughter, Nadia, and failed to impute income to Afshan Saleem. Afshan cross-appeals, asserting the trial court erred by applying Virginia law to the duration of Zubair's support obligation and by making unsupported findings of fact.

The couple married in Pakistan on December 30, 1974, and had three children: Nadia (born March 6, 1980), Seth (born July 10, 1982), and Gibran (born May 28, 1984). They separated and executed a property settlement agreement (PSA) on November 13, 1986, followed by a divorce decree on May 17, 1988. The PSA stipulated joint legal custody of the children, with the principal residence initially with Afshan until May 28, 1991, after which the sons would reside with Zubair. Zubair agreed to pay child support for all three children until the boys' residence changed, at which point he would be responsible only for the sons.

An amendment to the PSA, executed on August 9, 1988, changed the children's principal residence to Zubair and terminated his child support obligation as of August 15, 1988. This amendment specified that should the residence of any child revert to Afshan, child support obligations would be determined based on applicable laws where the children resided.

Custody of Nadia was awarded to Afshan on February 23, 1996. Following a failure to reach an agreement on Zubair's child support obligation for her, Afshan filed for support based on a change of circumstances. Prior to trial, both parties requested a determination of which state’s law should apply for calculating Nadia's support, leading to the trial court's ruling on July 29, 1996, referencing the amendment's provisions.

The document outlines the application of child support laws in cases involving children in different jurisdictions. New York law will apply to the daughter, Nadia, while Virginia law will apply to the boys. A hearing on child support and visitation took place on August 19, 1996, where testimony was presented regarding the daughter's expenses and the wife's employment history, noting she last worked in 1990 and earned approximately $26,000 annually. The court expressed uncertainty about its jurisdiction to order child support for Nadia beyond Virginia's guidelines for ages 18 or 19. 

On December 13, 1996, the trial court issued a final order determining that New York law would govern child support calculations for Nadia, while Virginia law would dictate the duration of child support for all three children, adhering to the limitations of Virginia Code § 20-124.2(C). The court found no basis to impute income to the wife and noted that the parties' agreement did not extend the child support obligation beyond the legally mandated termination point. Both parties appealed the ruling.

The husband argued that the trial court improperly applied the New York child support formula without first establishing the presumptive support amount as required by Virginia law. The court agreed that the presumptive amount must be calculated first before other considerations. The wife's claim that the husband's appeal was barred was dismissed, as he had consistently raised objections regarding the calculation of support, imputed income, and additional expenses. A written agreement between the parties concerning child support can factor into deviations from the presumptive amount.

A trial court is not required to award child support at the statutory presumptive amount if a justified deviation exists, but it must first determine this guideline amount and compare it to the provisions of the separation agreement. If the factors warrant an award based on the separation agreement, the court may then issue an award accordingly. The trial court lacks the statutory authority to establish child support using the laws of a different jurisdiction without adhering to the procedures outlined in Virginia Code § 20-108.1. Furthermore, contractual agreements between parties cannot provide such authority if it is not granted by statute. Legislative measures restrict a parent's ability to unilaterally set child support amounts or procedures. Virginia's child support guidelines, based on an income shares model, aim to ensure both the child's needs and the parent's ability to pay are considered. Code § 20-108.1 creates a rebuttable presumption favoring the guideline amount established in Code § 20-108.2, permitting deviations only after calculating the presumptive amount and only based on a written agreement that specifies different amounts, not processes. Even if parties agree to utilize New York law, the New York guidelines can only suggest an alternate support amount once the presumptive Virginia amount is established. The trial court erred by allowing the parties’ agreement to dictate the application of New York law for calculating child support, which also invalidated the wife's argument regarding the duration of support based on New York law, as the trial court's reliance on New York guidelines was incorrect.

The amendment provision indicates that child support should be determined according to the laws of the jurisdiction where the children reside if no agreement is reached. The wife's interpretation of this language suggests that the parties intended for jurisdictional support statutes to apply. The husband's claim of ambiguity is dismissed, as the language clearly indicates that the law of the children's residence at the time is relevant. The trial court has the discretion to deviate from presumptive support amounts if applying the guidelines would be unjust or inappropriate, as referenced in Cooke v. Cooke.

The original Property Settlement Agreement (PSA) stipulates that child support obligations terminate when a child reaches 18, dies, or is otherwise emancipated. The trial court correctly applied Virginia law, determining that support continues until the child turns 19 or graduates from high school.

Regarding imputed income, the husband argues that the trial court erred by not imputing income to the wife, who is voluntarily unemployed. The trial court has discretion in this matter, and its decision will be upheld unless clearly erroneous. The wife testified that she was asked to resign from her job and made limited efforts to find work. The trial court's choice not to impute income was supported by evidence and not an abuse of discretion, but this issue must be reconsidered on remand. 

The court concluded it was erroneous to base child support solely on New York law without assessing whether the presumptive Virginia child support amount was inappropriate. The trial court did not err in limiting the duration of support under Virginia Code or in refusing to impute income to the wife. The overall decision results in an affirmation in part, a reversal in part, and a remand for further proceedings.