Afshan Ghias Saleem v. Zubair Ahmad Saleem

Citation: Not availableDocket: 0444974

Court: Court of Appeals of Virginia; January 19, 1998; Virginia; State Appellate Court

Original Court Document: View Document

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Zubair Ahmad Saleem and Afshan Ghias Saleem, formerly married, are involved in appeals regarding a modification of a child support decree from the Circuit Court of Fairfax County. Zubair contends that the trial court improperly applied New York law to determine his child support obligation for their daughter, Nadia, and failed to impute income to Afshan. Afshan cross-appeals, arguing that the trial court incorrectly applied Virginia law to the duration of Zubair's support obligation and made unsupported factual findings.

The couple, married in Pakistan in 1974, had three children: Nadia (1980), Seth (1982), and Gibran (1984). After separating in 1986, they executed a property settlement agreement (PSA) that stipulated joint legal custody and outlined child support obligations based on the children's residence. Initially, the children lived with Afshan, with Zubair responsible for support, which would transition to Afshan solely for Nadia and Zubair for the sons upon a change in residence.

An amendment to the PSA in 1988 shifted custody of the children to Zubair and terminated his support obligation as of August 15, 1988. It also included a provision stating that if custody reverted to Afshan, support obligations would be determined based on the laws of the respective jurisdictions where the children resided.

In February 1996, custody of Nadia was awarded to Afshan, leading to a dispute over Zubair’s support obligation, prompting Afshan to file a motion for support based on a change in circumstances. The trial court determined that the original amendment allowed for the application of different state laws based on the children's residency, concluding that New York law would govern Nadia's support while Virginia law would apply to the sons.

A hearing on child support and visitation took place on August 19, 1996, where evidence was presented regarding the daughter's expenses and the wife's employment history, noting she last worked in 1990 with an annual income of about $26,000. The court expressed doubt about its jurisdiction to order child support beyond Virginia's age limits for child support. On December 13, 1996, a final order was issued, applying New York law for calculating child support for the daughter while adhering to Virginia law for the duration of support for all three children, constrained by Virginia Code 20-124.2(C). No agreement extended the child support obligation beyond the statutory termination point, leaving no authority to alter the provisions of Code 20-124.2(C). The trial court also found insufficient grounds to attribute income to the wife, questioning the applicability of the Brody rule. Both parties appealed the decision.

The husband argued the trial court improperly applied New York child support guidelines without first establishing the presumptive support amount as mandated by Virginia law (Code 20-108.1). The appellate court concurred, noting that the trial court must compute the presumptive child support amount from the guidelines before considering deviations. A written agreement can justify a deviation, but the trial court must first determine the guideline amount to compare with any separation agreement provisions. Establishing child support using the laws of another jurisdiction without following Virginia's statutory procedure is unauthorized, as parental discretion in determining support amounts is limited by legislative guidelines designed to ensure fairness and consistency in support awards.

The statute indicates that the General Assembly has adopted the income shares model for child support guidelines, which cannot be overridden by the parties' agreement to a different process. Code 20-108.1 establishes a rebuttable presumption that the guidelines in Code 20-108.2 determine the correct child support amount. A trial court may deviate from the presumptive amount only after calculating it, using the parties' agreement to suggest an alternate amount, not a different process. The trial court erred by applying New York law instead of Virginia guidelines to determine child support for Nadia. The wife's argument that reliance on New York law should extend to duration is unfounded, as the trial court's improper substitution of law invalidated this position. The parties' original agreement stipulated that child support obligations would terminate at age 18, high school graduation, or emancipation, and the court correctly found that support would continue until the child reaches nineteen or graduates. Additionally, the husband argued that the trial court should have imputed income to the wife for being voluntarily unemployed, highlighting that while trial courts have discretion in this matter, their decisions are upheld unless clearly erroneous or unsupported by evidence.

Wife provided uncontradicted testimony regarding her resignation from previous employment and her limited job search efforts in New York. The trial court's decision not to impute income to her was supported by evidence and did not constitute an abuse of discretion, but the issue of imputation must be reconsidered on remand. Imputation of income is relevant when determining whether to deviate from the standard child support amount, with any child support award needing to reflect the circumstances at the time of issuance. It was deemed erroneous to base child support on New York law without first assessing the appropriateness of the presumptive amount under Virginia's child support guidelines. Furthermore, without a clear agreement extending child support, limiting its duration under Code 20-124.2(C) was not incorrect. The trial court's refusal to impute income to the wife was upheld. The decision is affirmed in part, reversed in part, and remanded for further proceedings.