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Prisco v. Stroup

September 2, 2010

SHARON PRISCO, APPELLANT/CROSS-APPELLEE,
v.
RICHARD STROUP, APPELLEE/CROSS-APPELLANT.



Appeals from the Superior Court of the District of Columbia (DRB1270-04) (Hon. Zinora M. Mitchell-Rankin, Trial Judge).

The opinion of the court was delivered by: Kramer, Associate Judge

Argued May 18, 2010

Before REID and KRAMER, Associate Judges, and NEBEKER, Senior Judge.

This case has been here before.*fn1 The controversy central to the previous case - namely, Ms. Prisco's request to compel increased child support from Mr. Stroup - underlies this appeal as well. In this round of litigation, Ms. Prisco appeals the trial judge's order partially granting her motion to recalculate the amount of child support for 2006 and 2007. Specifically, Ms. Prisco objects to the application of the Virginia child support guidelines to determine the new child support amount, the imputation of income to her while she was unemployed, and the elimination of all arrearages owed by Mr. Stroup in light of additional payments he has been making towards the children's expenses. In addition, both parties appeal the judge's decision to deny attorney's fees to either side.

We discern no error in the application of Virginia child support guidelines. At the same time, we hold that the trial judge was plainly wrong when she imputed income to Ms. Prisco for the time period in which she was unemployed. In addition, it was clear error to allow Mr. Stroup's arrearages to be offset by the additional payments he made beyond his obligations under the parties' agreement. Therefore, we remand for a recalculation with no income imputed for Ms. Prisco and no offset for any extra payments made by Mr. Stroup. Finally, because the parties' agreement explicitly provided for attorney's fees to the prevailing party, the trial court should, on remand, determine which party prevailed under Virginia law and award fees accordingly. We affirm the order as to all other issues raised on appeal.

I. Background

Our previous opinion contains a detailed background of the controversy up to 2006.*fn2

Briefly, the parties divorced in Virginia in 2000. They memorialized the divorce in a Property and Support Settlement Agreement ("Agreement") which was incorporated, but not merged, into the Virginia court's order. In 2004, Ms. Prisco registered the Virginia order in the Superior Court after Mr. Stroup moved to the District. At the same time, she asked the court to modify the amount of child support pursuant to D.C. Code § 46-204 (a) (2001) because, she alleged, there had been a substantial and material change in the parties' circumstances. The trial court denied the motion, and we affirmed.*fn3

In this instance, instead of asking for a modification of the order under the D.C. Code, Ms. Prisco requested the court to recalculate the child support amount pursuant to the Agreement.*fn4 The trial court agreed that the Agreement provided for such a recalculation. The court, however, applied the Virginia guidelines*fn5 to recalculate the child support amount for the years 2006 and 2007, rather than the District of Columbia child support guidelines,*fn6 because the Agreement provided that it "shall be construed under and governed by the laws of the Commonwealth of Virginia."

In recalculating the child support amount, the trial judge imputed income to Ms. Prisco for the time period during which she was unemployed because she found Ms. Prisco's job search "was not commensurate with a sincere desire for employment." The judge focused on the fact that Ms. Prisco was unwilling to consider positions that required her to commute long distances or travel, and her failure to "effectively market herself" or to "effectively network." Particularly, the court found that Ms. Prisco's job application letters were "lackluster" and that the number of interviews she secured was "mediocre." The court also emphasized the fact that Ms. Prisco declined a job offer because it required her to travel to Europe. The court concluded that there was "no viable reason . . . that she could not travel . . . except personal choice." To the court, this reflected "the insincerity of her efforts to find employment." Finally, the trial court found a lack of diligence in Ms. Prisco's failure to contact a law firm that Mr. Stroup had referred her to, as well as her failure to conduct a broader job search that included teaching or "of counsel" positions.

Based on these findings, the court recalculated child support using an imputed income of $100,000 for Ms. Prisco and approximately $1,400,000 for Mr. Stroup. Even though the result was an increased amount of child support attributable to Mr. Stroup, the court subtracted the additional payments Mr. Stroup had made towards the children's expenses from the arrearages owed by him. The court found that Mr. Stroup's payments toward the children's expenses "far exceed[ed] any amount that this Court would require that he pay."*fn7

Finally, the court declined to award either side attorney's fees, even though the Agreement explicitly provided for such an award to the "prevailing party."

II. Standards of Review

Because Ms. Prisco has moved to recalculate child support under the Agreement, which has a choice of law clause, we will apply Virginia law.*fn8 Virginia law vests "discretion in the trial court in awarding child support and such awards will not be reversed on appeal unless plainly wrong or unsupported by the evidence."*fn9 Moreover, on appeal, Virginia courts "view the evidence and all reasonable inferences therefrom in the light most favorable to the prevailing party below."*f ...


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